Remanded

Smt. Madhu and 2 Others v. Badlu Prasad and 4 Others

Allahabad HC17 Oct 2024A227/11041/2024

Case brief

AI extract

What is this about?

In a petition under Article 227, the High Court set aside an order rejecting an application for framing additional issues in a partition suit. The Court directed the trial court to frame issues regarding a construction raised by defendants and dispose of the suit within one year.

What did the court decide?

The impugned order setting aside the application for framing additional issues is set aside; the trial court is directed to frame the additional issue and dispose of the suit within one year.

Smt. Madhu and 2 Others vs Badlu Prasad and 4 Others — Partition | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:174639

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Court No. - 9

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Case :- MATTERS UNDER ARTICLE 227 No. - 11041 of 2024

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Petitioner :- Smt. Madhu And 2 Others Respondent :- Badlu Prasad And 4 Others Counsel for Petitioner :- Indra Jit Singh,Sr. Advocate Counsel for Respondent :- Manish Tandon

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Hon'ble Rohit Ranjan Agarwal,J.

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The petitioners, before this Court, who are three in number are defendants in Civil Suit No.103 of 2012 which was filed by respondent no.1, Badlu Prasad for partition. The predecessors of petitioners had filed their written statement on 04.05.2012 wherein in additional pleas they have come up with a case that construction was raised in Plot No. 215B which adjoins the house in which partition has been sought. The court below on 31.07.2012 had framed four issues, which are as under:-

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"1- कययवयददवववयवदतमकयननमबर 215 'बद' बलयक, पनकककयनपपरनगरमम 1/4 भयगकक अलगकरयकरकबज़यदखलपयपकरननकयअधधकरदहह ?

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2- कययवयददककईवयदहनतपकउतपननहहहहआहह ?

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3- कययवयदददयरयवयदकयममलयययकनकमवकययगययहहएवयपदतनयययशपलकअपययरपहह ?

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4- कययवयददवकसदअनयअनपतकषककपयपकरननकयअधधकयरदहह?"

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The petitioners on 19.07.2023 moved an application 13Ga2 under Order XIV Rule 5 C.P.C. for framing of additional issues. The said application has been rejected by court below on the ground that it is highly time barred and has been moved to delay the suit.

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Sri O.P. Singh, learned Senior Counsel appearing for petitioners submits that specific plea was taken in written statement but the court below has not framed the issue which goes to the root of the matter and if the issues are not framed, the petitioner will suffer irreparable loss.

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Sri Manish Tandon, learned counsel appearing for plaintiffrespondent no. 1 submits that only written statement was filed by predecessors of petitioners and no counter claim under Order VIII Rule 6A was filed. However, he did not dispute the fact that in

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para no. 9 and 10 of additional pleas, the defendants have set up their case of raising house over Plot No. 215B which issue has not been framed by court below.

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I have heard respective counsel for the parties and perused the material on record.

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It is clear from the reading of written statement filed by predecessors of petitioners that their claim has been made over Plot No. 215B over which a house has been constructed and the claim was made by petitioners for framing the issues for including the said plot in question. Further, I find that the issue which was framed on 31.07.2012 does not consider the material proposition as raised by defendants in their written statement. The reasoning given by court below for rejecting the application moved under Order XIV Rule 5 C.P.C. is unsustainable and the same is hereby set aside.

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As the matter relates to partition and the case is at evidence stage, the court below is hereby directed to include all the issues which have been raised by defendants and the same shall be dealt with while deciding the earlier issues framed in the year 2012 while deciding the said suit. The court below shall make every endeavour to decide the partition suit as expeditiously as possible preferably within a period of one year from the date of production of certified copy of this order.

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In view of above, the writ petition stands disposed of.

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Order Date :- 7.11.2024 SK Goswami

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Digitally signed by :- SHIVAKANT GOSWAMI High Court of Judicature at Allahabad

Smt. Madhu and 2 Others v. Badlu Prasad and 4 Others

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Smt. Madhu and 2 Others v. Badlu Prasad and 4 Others

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