Renu Tiwari and Others Vs Additional Commissioner Judicial, Lucknow Mandal, Lucknow and Others

Neutral Citation No. - 2024:AHC-LKO:61283

Court No. - 8

Case :- WRIT - C No. - 6629 of 2024

Petitioner :- Renu Tiwari And Others Respondent :- Additional Commissioner Judicial, Lucknow Mandal, Lucknow And Others Counsel for Petitioner :- Hairdaya Narain Tiwari,Ankit Kumar Pandey,Atul Tiwari,Hari Mangal Singh Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey,Prabhakar Vardhan Chaudhary

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the petitioners, the learned standing counsel for the State-respondents and Shri P.V. Chaudhary, learned counsel, who had earlier put in appearance on caveat on behalf of the respondent No.3 and now has filed his Vakalatnama on behalf of the private-respondents No.5 and 6. Shri Vijay Bahadur Verma, learned counsel has also put in appearance on behalf of the private-respondent No.9 and has also filed his Vakalatnama, which is taken on record.

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The basic contest is between the petitioners and the privaterespondents No.3 to 9 herein, who were the plaintiffs in a suit filed by them before the Sub-Divisional Officer, Malihabad, Lucknow. The said suit was under Section 116 of the U.P. Revenue Code, 2006 (for short, 'Code, 2006') for division of land holding, which was filed on 20.07.2021. The present petitioners were the defendants No.2 to 4 in the said suit.

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Upon the notices issued, the petitioners herein had filed their written statement, a copy has been placed on record as Annexure No.5, denying the allegations and apart from raising a technical issue that the plaint was not properly signed by the plaintiffs, yet a plea was taken that the plaintiffs are not in possession. Apart from this fact another plea was taken that some oral settlement had taken place earlier and in terms of the said settlement, the parties were in possession of their respective portions, hence, the instant suit could not proceed.

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The submission of the learned counsel for the petitioners is that by means of the order dated 16.08.2022, the Sub-Divisional Officer, Malihabad, Lucknow has passed a preliminary decree allowing the suit without even framing the issues and taking evidence on record.

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It is in this regard, this Court on 06.08.2024 had required Shri Chaudhary, learned counsel for the private-respondents to seek instructions.

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It could not be disputed by Shri Chaudhary that in the suit before the Sub-Divisional Officer, Malihabad, Lucknow, neither any issues were framed nor any oral examination-in-chief of any of the witness was filed. However, his contention is that since the written statement did not take any cogent plea, hence, in absence of any real contest or defence even if no issues were framed, it will not cause any prejudice to the petitioners. For the aforesaid reasons, he submits that even if at all no evidence was led yet it will not impact the proceedings.

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Having considered the aforesaid submissions and on a perusal of the material on record, the fact which is undisputed is that a suit was filed by the private-respondents for division of land holding under Section 116 of the Code, 2006 before the Sub-Divisional Officer, Malihabad, Lucknow.

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Needless to say that the provisions of the Civil Procedure Code, 1908 (for short, 'CPC') is squarely applicable to the said proceedings under Section 116 of the Code, 2006 as per Section 214 of the Code, 2006.

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Now, in case, if the contention of the learned counsel for the private-respondents is taken note of then on perusal of the written statement of the present petitioners, a copy of which has been brought on record as Annexure No.5, it would reveal that in Para-11 and 17(a), a plea was taken by the defendants regarding the plaintiffs not being in possession and that in view of the settlement which occurred earlier, the suit for partition was not maintainable.

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Order XIV Rule 1 CPC clearly indicates how the issues are to be framed wherever there is a contest. The very fact which is stated in the plaint and traversed in the written statement gives rise to an issue. It may be an issue of fact or an issue of law. However, the fact remains that despite the plea in Para-11 and 17(a), admittedly, no issue was framed by the Court concerned. For the aforesaid reasons, no evidence admittedly was led by any of the parties. In such circumstances, it was apparently not justified on behalf of the Sub-Divisional Officer, Malihabad, Lucknow to have decreed the suit.

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Whether the parties filed their pleadings or evidence that is one thing, but a Judicial Officer who is exercising his powers and holing a Court is bound by the provisions of law which includes following the procedure in terms whereof the litigation

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is decided.

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This Court had an occasion to consider the matter of non framing of issue in a suit for division of land holding in Kamlakant v. Board of Revenue & Ors., MANU/UP/4553/2022 , wherein this Court had noticed the observations of the Apex Court in Makhan Lal Bangal v. Manas Bhunia, (2001) 2 SCC 652 and in Para 29 to 31 of Kamlakant (supra) held as under:-

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"29. It is sought to be argued by the respondent no. 5 that the said plea regarding family settlement/partition as well as the plea regarding division of the property of Village Bhikhipur and Village Sherva Uparhar is nothing but a false plea which is apparent on the face of record and cannot be countenanced by the Court.

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Be that as it may, this Court finds that the written statement did contain a plea to which the respondent no. 5 has an explanation which has been furnished before this Court but the fact remains that whether it is the plea raised by the petitioner or the explanation furnished by the respondent no. 5 which is correct cannot be examined by this Court in absence of an issue or evidence in exercise of writ jurisdiction under Article 226 of the Constitution of India as the said plea arises from a pure question of fact which requires evidence to be established.

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Admittedly, no issue was framed by the Trial Court and none of the parties had led evidence to the aforesaid effect. Framing of issues is a very important stage of a trial and it charters the course for evidence. At this juncture, this Court is reminded of a decision of the Apex Court in the case of Makhan Lal Bangal Vs. Manas Bhunia reported in (2001) 2 SCC 652 where the importance of framing of issues and its impact on the trial has been considered. In para 19 and 20, it has been held as under:-

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An election petition is like a civil trial. 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 there from. 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 scheme of Order 14 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

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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.

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20.In the case at hand, each one of the corrupt practices alleged by the petitioner and denied by the defendant, should have formed the subjectmatter of a distinct issue sufficiently expressive of the material proposition of fact and of law arising from the pleadings. Failure to do so has resulted in an utter confusion prevailing throughout the trial and also in the judgment of the High Court as was demonstrated by the learned counsel for the appellant during the hearing of the appeal attacking the findings arrived at by High Court. On some of the points in dispute the High Court has observed that no proof of the said fact (alleged in the petition) was necessary so far as the petitioner is concerned because there was no specific denial of the allegations made or as there was no answer by the defendant to the allegations of the petitioner on points of substance. The contradiction with which the trial and the judgment suffer is writ large. If a material proposition of fact or law alleged in the petition was not denied or was not specifically denied in the written statement within the meaning of Rule 5 of Order 8 CPC and such tenor of the written statement had persuaded the learned designated Election Judge in forming an opinion (belatedly while writing the judgment) that there was an admission by necessary implication for want of denial or specific denial then there was no need of framing an issue and there was no need for recording of evidence on those issues. Valuable time of the court would have been saved from being wasted in recording evidence on such averments in pleadings as were not in issue for want of traverse, if it was so!"

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In light of the aforesaid fact where it is not disputed that the issues were not framed and the evidence was not led, this Court is unable to sustain the impugned order dated 16.08.2022 so also the order passed by the revisional Court dated 29.06.2024. In view thereof, the impugned orders are set aside. The matter shall stand restored on the board of Sub-Divisional Officer, Malihabad, Lucknow, who shall after affording full opportunity of hearing to the parties but without granting any necessary adjournment decide the matter afresh keeping in view the observations made by this Court including the provisions of CPC. An endeavour would be made to complete the exercise within a period of six months from the date, a certified copy of this order is placed before the authority concerned. The parties shall cooperate in early disposal of the matter. In case any of the

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party attempt to misuse the liberty, it shall be open for the Court concerned to proceed in accordance with law.

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It is also made clear that this Court has not examined the merits of any plea of the parties and the impugned orders have been set aside only for procedural defects.

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With the aforesaid observations, the writ petition is allowed . There shall be on order as to costs.

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Order Date :- 5.9.2024 Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Renu Tiwari and Others v. Additional Commissioner Judicial, Lucknow Mandal, Lucknow and Others

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Renu Tiwari and Others v. Additional Commissioner Judicial, Lucknow Mandal, Lucknow and Others

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