Partly allowed

Suresh Bhimrao Jagdale v. Vishnu Shridhar Mehunkar and Ors.

Bombay HC20 Feb 2013WP/325/2013

Case brief

AI extract

What is this about?

The High Court of Bombay, Aurangabad Bench, dismissed a writ petition challenging an order rejecting a request to frame an issue on valuation and non-joinder. The court quashed the impugned order, directing the lower court to frame the issue before adjudication on merits.

What did the court decide?

Impugned order quashed; Application Exhibit 53 partly allowed; Issue on valuation and court fees to be framed.

Suresh Bhimrao Jagdale Vs Vishnu Shridhar… — Civil Procedure and Limitation | Bombay HC (2013)

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1 wp 325.13

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 325 OF 2013

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Suresh S/o Bhimrao Jagdale, Age : 60 Years, Occu. : Pensioner, R/o 23, Mauli Vidya Niketan, Jalna Road, Aurangabad. .. Petitioner

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Versus

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Vishnu S/o Shridhar Mehunkar, Age : 43 Years, Occu. : Service, R/o House No. 2, White House, N-7, CIDCO, Aurangabad.

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Pandit S/o Marutirao Shisagar, Age : 51 Years, Occu. : Service, R/o Deogeri College, Aurangabad.

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Vinayak S/o Sopanrao Shisagar, Age : 50 Years, Occu. : Agril., R/o Mahalia College, Parbhani.

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Ashok S/o Bahurao Patil, Age : 52 Years, Occu. : Agril., R/o Samarth Nagar, Aurangabad. Tq. & Dist. Aurangabad.

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2 wp 325.13

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Vivyak S/o Sakharam Bagal, Age : 37 Years, Occu. : Agril., R/o Vasmat, Tq. Vasmat, Parbhani. .. Respondents

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Shri A. R. Vaidya, Advocate for the Petitioner. Shri Hemant Surve, Advocate for the Respondent No. 1.

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CORAM : S. V. GANGAPURWALA, J. DATE : 20TH FEBRUARY, 2013.

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ORAL JUDGMENT :

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. Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

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The respondent No. 1/plaintiff has filed a suit claiming declaration and injunction. The petitioner/defendant No. 1 resisted the suit raising various defences. The Court framed the issues. The present petitioner filed an application requesting the Court to frame the issue pertaining to valuation of suit and non joinder of necessary parties. The Court rejected the application. Aggrieved thereby present petition.

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Shri Vaidya, the learned counsel for the petitioner submits that the only request made by the petitioner was to frame the

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3 wp 325.13

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issue, but the Court has commented on the merits of the matter. According to the learned counsel, a fact affirmed by one party and denied by another, gives rise to an issue. The learned counsel submits that, the said issues are relevant for the effective adjudication of the dispute.

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Shri Surve, the learned counsel for the plaintiff submits that the Court has properly considered all the facets of the matter and has rightly passed the order. Considering the prayers made, the plaintiff has properly valued the suit and that has been rightly considered by the Court. According to the learned counsel in the written statement also vague averments are made without specifying the proper valuation. The Court was justified in passing the order. Even the valuation report which is filed was not filed with the written statement, as such could not have been considered by the Court. The learned counsel submits that the issues as suggested are not necessary.

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In view of provisions of Order 14 of the Code of Civil Procedure when party affirms a particular fact and the same is denied by another party, it gives rise to the issue. It is another aspect whether the party is in a position to prove the said issue.

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4 wp 325.13

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The petitioner herein in the written statement has challenged the valuation made by the plaintiff. In the light of that it gives rise to an issue.

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If the issue is framed, the parties have to prove and disprove the said issue. It would be premature at this stage to comment upon the same. Firstly when an application was given for framing of additional issue, the Court ought to have framed the said issue and thereafter ought to have afforded opportunity to the parties to prove the same. In stead the Court has dealt with the matter about the valuation and the non joinder of necessary parties, as if it is deciding the issues, without the same being framed. It appears that no ground is raised about the non joinder of necessary party in the written statement. When the written statement is bereft of said ground, the same would not give rise to an issue.

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In the light of the above, the impugned order is quashed and set aside. The application Exhibit 53 is partly allowed. The Court would frame the issue with regard to valuation and Court fees and decide it along with other issues.

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5 wp 325.13

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It is made clear that I have not dilated on the merits of the contentions regarding valuation. The parties may prove the same.

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Rule accordingly is made absolute in above terms. No

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costs.

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Sd/[ S. V. GANGAPURWALA, J. ]

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bsb/Feb. 13

Suresh Bhimrao Jagdale v. Vishnu Shridhar Mehunkar and Ors.

Case brief

What is this about?

What did the court decide?

Suresh Bhimrao Jagdale v. Vishnu Shridhar Mehunkar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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