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2019 DIGILAW 230 (ORI)

Basanta Manjari Devi v. Santosh Sablok

2019-03-20

A.K.RATH

body2019
JUDGMENT : A.K.RATH, J. 1. This petition challenges the order dated 2.8.2016 passed by the learned Additional Civil Judge (Sr.Division), Puri in C.S.No.04/311 of 2006-2004, whereby and whereunder, learned trial court has rejected the application of the plaintiff-petitioner to expunge a portion of the affidavit of evidence filed by defendant-opposite party no.1 and strike out issue no.4. 2. The plaintiff-petitioner instituted the suit for declaration that she is the owner in possession of the properties mentioned in Schedule A, B, E & F and entitled to the moveable properties mentioned in Schedule C & D, the legal heirs certificate as well as the order of mutation are void and not bind on her, recovery of possession, in the event she is dispossessed from the suit property during pendency of the suit and consequential reliefs. The case of the plaintiff is that she is the daughter of Madan Mohan Das and Manorama Devi. Her father and mother died on 2.1.1994 and 31.7.2000 respectively. Her brother Srikumar Das was a bachelor. He was a paraplegia patient. He was working as Clerk in the Fishery Department. He died on 8.6.1998 while in service. His obsequies were performed by her son Bibaswat Gautam. She is staying in her parental house to look after the old and ailing parents. Her brother had executed a will in favour of her son Bibaswat Gautam on 29.4.1998. Her son filed T.S.No.291 of 2000 in the Court of the learned Civil Judge, Senior Division, Puri for probate of the will. Defendant no.1 lodged a caveat and stated that she was the widow of Srikumar Das. But then, the Court did not decide the said issue. The case was dismissed on 7.5.2004. After death of her parents, the properties devolved on her. She is entitled to get back the movable properties mentioned in Schedule C & D. She is the absolute owner of the immovable properties mentioned in Schedule A, B, E & F. Defendant no.1 had no semblance of right, title and interest over the same. Defendant no.1 had not married to her brother. During the life time of her brother, defendant no.1 filed O.S.No.419 of 1994 against him for a decree of divorce. Her brother entered contest and filed written statement denying the marital status. An issue "Is the petitioner the legally married wife of opposite party?" was framed. During pendency of the suit, the defendant died. During the life time of her brother, defendant no.1 filed O.S.No.419 of 1994 against him for a decree of divorce. Her brother entered contest and filed written statement denying the marital status. An issue "Is the petitioner the legally married wife of opposite party?" was framed. During pendency of the suit, the defendant died. A petition was filed to implead the legal representatives of the deceased on the strength of the will. No objection was filed. While matter stood thus, the plaintiff filed a petition for abetment of the suit. Accordingly, the suit was abated on 16.11.1998. Before abatement of the suit, defendant no.1 managed to obtain the legal heirs certificate by playing fraud on defendant no.3. Defendant no.1 also filed Mutation Case No.3045 of 1998 on the basis of the legal heir certificate. Defendant no.4 in connivance with defendant no.1 allowed the mutation case. The same are not binding on her. 3. Defendant no.1 entered contest and filed a comprehensive written statement denying the assertions made in the plaint. The specific case of defendant no.1 is that she was the wife of Srikumar Das. 4. Learned trial court framed issues. Issue no.4 is "whether the defendant no.1 is competent to claim in this case styling as wife of late Srikumar Das, deceased brother of the plaintiff in view of the decision pronounced on 16.11.1998 in O.S.No.419 of 1994?" The parties filed affidavit of evidence. The plaintiff filed an application to expunge a portion of the affidavit of defendant no.1 with regard to marital status and to strike out issue no.4 and recast the issue. The same having been rejected, she filed C.M.P.No.850 of 2016. She withdrew the petition to file a better petition. Thereafter, she filed a petition seeking the same relief. Defendant no.1 filed objection. 5. Learned trial court assigned the following reasons and rejected the petition:- "In the W.S. the defendant No.1 at para-14 denied the pleading of the plaintiff and at par-15 has categorically stated that she was the wife of Srikumar Das and still continued as such and rightly made application for legal heir certificate. So the dispute between the parties is regarding the marriage of defendant No.1 with Srikumar Das. The property involved in this suit is the property of Srikumar Das. So the dispute between the parties is regarding the marriage of defendant No.1 with Srikumar Das. The property involved in this suit is the property of Srikumar Das. As the plaintiff has not technically prayed to declare that the defendant No.1 is not wife of his brother Srikumar Das, no issue has directly framed in that respect. But to answer the issue No.3, 4 and 7, this Court has not answer the marriage between the parties. The issue No.3 i.e. "Whether the legal heir certificate is fraudulent, void and illegal, can be answered on the basis of the marriage between the defendant No.1 and the Srikumar Ds as the legal heir certificate has been issued showing the defendant No.1 as wife of Srikumar Das. Similarly, in issue No.4 it is to be decided whether the defendant No.1 is competent to claim in this case styling as wife of Srikumar Das, the deceased brother of the plaintiff, in view of decision pronounced on 16.11.98 in O.S.419/94-I. Similarly one issue as Issue No.7 has been framed to decide whether the plaintiff is only entitled to get back the property mentioned in schedule C and D and the plaintiff is the owner in possession of the immovable property mentioned in schedule A, B, E and F of the plaint. The basis of answer to this issue is the marriage between defendant No.1 and Late Srikumar Das. Though there is no direct issue has been framed to decide whether the defendant No.1 is legally married wife of Srikumar Das in view of technicality in drafting of suit and in view of no prayer made by the plaintiff in that respect, but the marriage is a relevant fact to decide in this suit. Section 5 of the Indian Evidence Act clearly shows that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. Explanation attached to the said section reveals that this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure. Marriage between the defendant No.1 and Srikumar Das is relevant fact to determine fact in issue in this suit. Marriage between the defendant No.1 and Srikumar Das is relevant fact to determine fact in issue in this suit. The defendant No.1, as discussed above, is not disentitled to prove the marriage under principle of res judicata or issue estoppel. Hence, on this back ground, I hold that the evidence produced by the defendant No.1 regarding her marriage comes under the purview of relevant fact and she is entitled to prove her marriage in order to defend the claim." 6. Heard Mr.D.C.Mohanty, learned Senior Advocate along with Mr.R.N.Acharya, learned Advocate for the petitioner and Mr.D.P.Mohanty, learned Advocate for opposite party no.1 as well as Ms.Samapika Mishra, learned A.S.C for opposite parties 2 to 5. 7. Mr.D.C.Mohanty, learned Senior Advocate for the petitioner argued with vehemence that defendant no.1 is not the legal married wife of Srikumar Das, brother of the plaintiff. Defendant no.1 filed O.S.No.419 of 1994 for divorce against the brother of the plaintiff. Plaintiff's brother died during pendency of the suit. In the said suit, the issue no.3 was "Is the petitioner the legally married wife of opposite party?". The brother of the plaintiff died during pendency of the suit. The plaintiff filed an application for abatement of the suit. Accordingly, the suit was abated. In the instant suit, the issue with regard to marital status of defendant no.1 does not arise at all. In the previous suit, the issue with regard to marital status of opposite party no.1 with brother of Srikumar Das was framed as issue no.3. The same issue cannot be re-agitated in the subsequent suit before the Court, which has no jurisdiction to try the marital dispute. The Family Court is competent to decide the marital status. Issue no.4 has been framed on vague averments made in the written statement of defendant no.1. Thus, framing of issue no.4 is illegal. In the event the said issue is not struck off, it will have wide ramification on the properties and rights of the petitioner. He further submitted that a portion of the affidavit of evidence with regard to marital status may be expunged. 8. Per contra, Mr.D.P.Mohanty, learned Advocate for opposite party no.1 submitted that defendant no.1 is the legally married wife of Srikumar Das. She filed O.S.No.419 of 1994 for a decree of divorce. Her husband died. The suit was abated. The plaintiff has claimed the properties left out by Srikumar Das. 8. Per contra, Mr.D.P.Mohanty, learned Advocate for opposite party no.1 submitted that defendant no.1 is the legally married wife of Srikumar Das. She filed O.S.No.419 of 1994 for a decree of divorce. Her husband died. The suit was abated. The plaintiff has claimed the properties left out by Srikumar Das. Defendant no.1, being the legal married wife of Srikumar Das, is entitled to succeed to his properties. In the present suit, the vital issue is with regard to the marital status of defendant no.1 with Srikumar Das. There is no provision in the CPC to expunge a portion of the affidavit of evidence filed by any party. 9. Before adverting into the contentions raised by the counsel for the parties, it will be necessary to set out Order 14 Rule 1 CPC, which is quoted hereunder: "1. Framing of issues- (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one-party and denied by the other shall form the subject of distinct issue. (4) Issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence." 10. The word "issue" has not been defined in CPC. 10th Edition of Black's Law Dictionary at page 959 defines the 'Issue' as a point in dispute between two or more parties. 11. On a bare reading of Order 14 Rule 1 CPC, it is evident that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. 10th Edition of Black's Law Dictionary at page 959 defines the 'Issue' as a point in dispute between two or more parties. 11. On a bare reading of Order 14 Rule 1 CPC, it is evident that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. Sub-rule 2 defines that material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Sub-rule 3 provides that each material proposition affirmed by one-party and denied by the other shall form the subject of distinct issue. Sub-rule 4 provides that issues are two kinds. (a) issues of fact & (b) issues of law. Sub-rule 5 provides that at the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and [after examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Sub-rule 6 declares that nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. 12. The issues are the nerve centre of the suit. Dealing with the scope and ambit of Order 14 Rule 1 CPC, the apex Court in the case of Makhan Lal Bangal v. Manas Bhunia and others, (2001) AIR SC 490, held : "19.... ... .The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order XIV of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies, not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided." 13. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided." 13. In Ramrameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249 , the apex Court held that framing of issues is a very important stage in civil litigation and it is the bounden duty of court that due care, caution, diligence and attention must be bestowed while framing of issues. 14. Reverting to the facts of the case and keeping in view of the law laid down by the apex Court in the decisions cited supra, this Court finds that O.S.No.419 of 1994 was filed by defendant no.1 against Srikumar Das for a decree of divorce. The suit abated. No issue was decided. In the instant suit, the plaintiff asserts that she being the sole survivor is entitled to succeed the properties of her brother Srikumar Das after death of the parents. The defendant no.1 is not the legal married wife of Srikumar Das. Defendant no.1 pleads that she is the legal married wife of Srikumar Das. Apart from issue no.4, there are other vital issues. 15. The question does arise whether the civil court has jurisdiction to try the suit if the issues are inextricable mixed up and some issues raised are exclusively triable by the Family Court constituted under the Family Courts' Act, while others exclusively triable by the Civil Court . 16. This Court had the occasion to deal with the provisions of Coal Bearing Areas (Acquisition & Development) Act, 1957 vis- -vis jurisdiction of the Civil Court to try the suit in the case of Nakula Sahoo & others v. Smt. Durpadi Singh & others, (2016) 1 ILR(Cut) 504. Taking a cue from the decision of the apex Court in the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 , this Court held that if the issues are inextricably mixed up with each other, it is the Civil Court where the suit is filed will continue to have the jurisdiction over the issues and the civil court would be competent to decide the same. 17. 17. In view of the same, the Civil Court has jurisdiction to try issue no.4 along with other issues. There is no reason for expunction of portion of the affidavit of evidence. 18. The reasons assigned by the learned trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution. The petition is dismissed. There shall be no order as to costs.