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2017 DIGILAW 2061 (RAJ)

Mohru v. Sara Devi

2017-09-14

ALOK SHARMA

body2017
ORDER : Alok Sharma, J. 1. Heard the counsel for the petitioner-defendant (hereinafter 'defendant') and perused the impugned order dated 20.11.2015 passed by the Additional Senior Civil Judge No. 1, Jaipur District dismissing the defendant's application under Order 14, Rule 5 CPC for framing of an additional issue as to whether the adoption deed dated 25.01.1962 whereby the plaintiff Bheru (now deceased and represented by his Legal Representatives) was legal and valid adopted. 2. Facts relevant are that in para 2 of the plaint/suit where the relief sought was the cancellation of the will dated 26.08.1969 executed by Mahadev, it was averred that the plaintiff Bheru was adopted by Mahadev. In the written statement the defendants denied the said averment and stated that the adoption deed dated 25.01.1962 was not valid and legal and consequently the plaintiff Behru himself also the beneficiary of the impugned will dated 26.08.1969 had no cause of action to lay the suit for cancellation of that very will. Yet by an over-right/error an issue as to the validity of the adoption deed of 25.01.1962 was not framed. Hence the application under Order 14, Rule 5 CPC for framing an additional issue in that regard was filed. The application for framing the additional issue as sought was opposed by the plaintiff stating that framing an issue on the validity and legality of the adoption deed dated 25.01.1962 was not germane to the relief prayed for in the suit. More so in view of the fact that plaintiff Bheru's natural mother one Dhaka Bai had herself challenged the adoption of Bheru in civil suit No. 5/2001. The trial court on consideration of the respective contentions on framing of the additional issue as prayed by the defendants, dismissed the application under Order 14, Rule 5 CPC. Hence this petition. 3. Mr. Yash Sharma counsel for the defendant submitted that it is trite that when an averment of fact is made in a plaint and denied in the written statement, an issue has been struck in regard thereto. Hence this petition. 3. Mr. Yash Sharma counsel for the defendant submitted that it is trite that when an averment of fact is made in a plaint and denied in the written statement, an issue has been struck in regard thereto. He submitted that in the instant case the issue with regard to the legality and validity of the adoption deed dated 25.01.1962 was central to the controversy before the trial court (and the plaintiff and the defendant were at odds in regard thereto) inasmuch as in the event of it being found that the adoption deed dated 25.01.1962 was not legal and valid, the plaintiff Bheru (deceased) now represented by his Legal Representatives would have no cause of action to lay a challenge to will dated 26.08.1969 for the reason that as the natural born son of Narayan he was entitled to the benefit thereof along with the defendants also the sons through Dhaka Bai. In support of his contention Mr. Yash Sharma relied upon the three judge bench decision of the Apex Court in the case of Makhan Lal Bangal v. Manas Bhunia & Others, [ (2001)2 SCC 652 ] emphasing the importance of framing of issues in a trial and the responsibility of the parties and the court too to ensure that appropriate issues, based on the pleadings, are framed for a just and proper determination of the lis between the contesting parties. Mr. Yash Sharma submitted that non-framing of the issue with regard to the validity and legality of the adoption deed dated 25.01.1962 whereon the plaintiff found his purported legal right and denial thereof by the defendant mandated an issue thereon being framed. Non-framing in the first instance was also the shortcoming of the trial court doing its duty. That should have been rectified by allowing the framing of an additional issue. It was submitted that the reason for which the trial court has dismissed the application for framing of additional issue, that the mother of the defendants in the suit had herself filed a suit for cancellation of the adoption deed dated 25.01.1962, was misdirected. It was submitted that the defence of the defendant in the suit by plaintiff Bheru (now represented by his LRs) seeking cancellation of the will dated 26.08.1969 was not connected to the suit filed by Dhaka Bai. The two were independent proceedings to be addressed on evidence independently laid. It was submitted that the defence of the defendant in the suit by plaintiff Bheru (now represented by his LRs) seeking cancellation of the will dated 26.08.1969 was not connected to the suit filed by Dhaka Bai. The two were independent proceedings to be addressed on evidence independently laid. 4. Mr. Sanjay Mehrishi counsel for the respondent-plaintiff has supported the impugned order. 5. Heard. Considered. 6. Mr. Yash Sharma is correct in stating that an issue has to be framed where a material fact is asserted by the plaintiff and denied by the defendant. Admittedly the plaintiff Bheru had asserted in his suit that he was adopted by Mahadev under adoption deed dated 25.01.1962. And on that fact was premised challenge to the will dated 26.08.1969. That fact was denied by the defendants. An issue ought to have been struck on this aspect of the matter without anything more. More particularly as the legality and validity of the adoption deed dated 25.01.1962 was crucial to the maintainability of the suit for cancellation of the will dated 26.08.1969 in view of the fact that the erstwhile plaintiff Bheru along with the defendants were sons of late Narayan and his widow Dhaka Bai and all were beneficiaries of the will in contest. 7. I am of the considered view that the trial court has misdirected itself in refusing to frame the additional issue as sought by the defendants on the irrelevant ground that a challenge to the adoption deed dated 25.01.1962 by Dhaka Bai under which Bheru, her natural son was purportedly adopted by Mahadev, had also been laid in a separate suit. Each suit has to be decided on evidence laid therein. Commonality of issues in two separate suits is not prohibited in law. Question relating to section 10 CPC which may arise in a given case have to be addressed with reference to the overall frame of the two suits. Prayer for consolidation of the two suits is also another aspect to be resolved by the contesting parties-and to be addressed by the court in its discretion at the appropriate time. 8. Consequently, this petition is allowed. The impugned order dated 20.11.2015 passed by the Additional Senior Civil Judge No. 1, District Jaipur is quashed and set aside. Prayer for consolidation of the two suits is also another aspect to be resolved by the contesting parties-and to be addressed by the court in its discretion at the appropriate time. 8. Consequently, this petition is allowed. The impugned order dated 20.11.2015 passed by the Additional Senior Civil Judge No. 1, District Jaipur is quashed and set aside. It is directed that an additional issue as prayed for by the defendant in his application under Order 14, Rule 5 CPC be framed. 9. The petition stands accordingly allowed.