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2023 DIGILAW 260 (UTT)

Kailash Chandra v. Omkar

2023-04-05

SHARAD KUMAR SHARMA

body2023
JUDGMENT : The petitioners before this Court are the defendants in a Suit, which was preferred by the respondents/plaintiffs, being Suit No. 160 of 2012, Mr. Omkar and another Vs. Shyam Lal and others. The principal relief in the Suit, was in relation to the subject matter of the property as described in para 1 of the plaint, it was for the grant of a decree of permanent injunction, as against the present defendants i.e. the petitioners herein. 2. The Suit was objected and the defendants petitioners had filed a written statement on 22.02.2013. In the written statement thus filed, the major issue of concern for the present writ petition, would be the pleadings as raised in para 10 of the written statement, which is extracted hereunder in its entirety. **10- ;g fd okn i= ds in la- 10 ds leLr dFku dkYifud Hkzked ,oa vlR; gksus ds dkj.k dFkuksa dks vLohdkjrs gq, dBksj izfrokn fd;k tkrk gS oknh i{k dk izfroknhx.k ds fo:} izLrqr fu;kstu dk okn gsrqd dHkh Hkh vFkok fdlh izdkj vkt fnu rd mRiUu ugha gqvk gSA okn gsrqd ds vHkko esa oknh i{k dk izLrqr okn O;ogkj izfdz;k lafgrk 1908 ds vkns'k 7 fu;e 11 ds vkyksd esa lO;; [kf.Mr fd;s tkus ;ksX; gS **rFkk oknhx.k dk okn jsltwfMdsVk ds fl}kar ls Hkh ckf/kr gSA*^ as it was amended later. 3. After permission of the amendment, as made by the learned trial Court, vide its order dated 16.01.2019, an application was filed by the defendants petitioners, invoking the provisions contained under Order XIV Rule 5 of the Code of Civil Procedure, praying for formulation of an additional issue, for the purposes of facilitating the decision to be rendered in the said Suit. The said application for formulation of an additional issue, as prayed for by the present defendants i.e. the petitioners herein, was rejected by the learned trial Court on 01.02.2019, which later on stood affirmed by the judgment dated 25.07.2019, as rendered in Civil Revision No. 2 of 2019, Roop Raj and others Vs. Onkar and Another, hence the writ petition. 4. The learned counsel for the petitioners submits that in view of the language used under Order XIV Rules 3 & 4 to be read with Rule 5, particularly, of the CPC, a party to the proceedings can add, amend or modify an issue at any stage of the proceedings. Onkar and Another, hence the writ petition. 4. The learned counsel for the petitioners submits that in view of the language used under Order XIV Rules 3 & 4 to be read with Rule 5, particularly, of the CPC, a party to the proceedings can add, amend or modify an issue at any stage of the proceedings. There cannot be any doubt about the said provision, that striking or amendment of the issues could be at any stage of the proceedings before the Court renders the final judgment, but then the issue herein would be as to whether the insertion of an issue, could be by way of resort to under Order XIV Rule 5, by way of formulation of an issue in relation to Order VII Rule 11 of CPC and that too, when it was chosen to be filed after the amendment was being permitted to be carried in the written statement by the order dated 16.01.2019. 5. The learned Senior Counsel appearing for the plaintiffs /respondents submits, that the incorporation of the issue sought to be incorporated under Order XIV Rule 5, though is permissible at any stage, but he submits that the additional issue, in relation to Order VII Rule 11 of CPC cannot be permitted by invoking Order XIV Rule 5 of CPC; because it has had to be decided as a principal issue by the trial Court, before venturing to decide the Suit itself on its own merit. 6. There cannot be any dispute on that issue and the logic behind it is, that the issue under Order VII Rule 11 of CPC, since it goes to the very root cause as to whether the suit is maintainable or not instead of proceedings to decide the Suit itself on merits, the Court should first venture to decide the issue under Order VII Rule 11 of CPC before stepping into decide any other issues involved in the suit. 7. It is not in dispute in view of the pleadings raised in para 10 of the written statement, that the plea of Order VII Rule 11 of CPC was the principal plea incorporated in the written statement in its para 10. 7. It is not in dispute in view of the pleadings raised in para 10 of the written statement, that the plea of Order VII Rule 11 of CPC was the principal plea incorporated in the written statement in its para 10. But in the form in which the pleading was raised it was raised, in relation to Order VII Rule 11, it was never attempted to be pressed into by the defendants, to be formulated as an issue, to be decided as a preliminary stage before the trial Court proceeds to decide the other issues. In that eventuality, the plea raised by the learned Senior Counsel for the respondents, that under the garb of an amendment made pertaining to raising the plea of bar of sustainability of a suit due to res judicata, cannot be taken as to be a shield or an alternative mode to incorporate an issue pertaining to Order VII Rule 11 of CPC, by virtue or under the garb of an amendment permitted by an order dated 16.01.2019, because if the said formulation of an issue in relation to Order VII Rule 11 of CPC is permitted, it goes against the basic spirit of deciding Order VII Rule 11 of CPC as an initial issue before deciding any other issues on its own merit. 8. There is another reason the amendment made by the defendants in the written statement was confined to the following effect:- **rFkk oknhx.k dk okn jsltwfMdsVk ds fl}kar ls Hkh ckf/kr gSA** 9. The amendment made in para 10, as extracted above at the most, it could have permitted the present petitioners to get an additional issue formulated by filing of an application under Order XIV Rule 5, it could be confined to as to whether the suit was barred under the principles of res judicata or not as contemplated under Section 11 of Code of Civil Procedure. 10. Formulation of an issue about the suit being barred under Section 11 of the CPC, cannot be adopted as an alternative mode to enable to formulate an issue pertaining to Order VII Rule 11 of CPC, which otherwise has been waived of by the defendants to get it initially framed in the shape of pleading which has been already raised in para 10 of the written statement. As such, the application preferred by the defendants under Order XIV Rule 5 for framing of an additional issue would be confined to the following effect:- “As to whether the suit is barred by the principles of res judicata or not?” 11. With this plea, an issue which could be permitted under an application preferred by the defendants under Order XIV Rule 5 of CPC, this could be framed as an additional issue under Order XIV Rule 5 of CPC, but since the said issue entails a mix question of fact and law, it has to be decided along with other issues and not under the common pedestal as to be an issue under Order VII Rule 11 of CPC. 12. Hence, the writ petition only partly succeeds, that the formulation of an issue on the basis of an application filed by the defendants petitioners would be confined to the effect, that as to whether in the light of the amended plea of the defendants, the suit of the plaintiffs respondents was barred by the principles of res judicata or not, it would be an issue which has to be decided along with other issues after enabling the parties to the proceedings to lead their respective evidences, pertaining to the bar under Section 11 of the Code of Civil Procedure. 13. Subject to the aforesaid, the writ petition partly succeeds.