Allowed

Sandeep Sharma v. Narinder Sharma

Himachal Pradesh HC5 Nov 2019CMPMO/519/2019

Case brief

AI extract

What is this about?

High Court allowed the petition under Art. 227, held that cause of action requires scrutiny beyond plaint averments when parties plead contrary in written statement, and directed first appellate court to frame additional issue on cause of action without remand.

What did the court decide?

Present petition allowed. Impugned order set aside. First appellate court directed to frame additional issue on cause of action and decide appeal accordingly without remand.

Sandeep Sharma Vs Narinder Sharma — Civil Procedure and Limitation | Himachal Pradesh HC (2019)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CMPMO No. 519 of 2019 Decided on: November 5, 2019

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________________________________________________________________ Sandeep Sharma ……...Petitioner Versus Narinder Sharma …Respondent ________________________________________________________________ Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting¹ ? Yes. ________________________________________________________________ For the petitioner: Mr. Naresh K. Sharma, Advocate. For the respondent: Mr. Munish Datwalia, Advocate. _______________________________________________________________ Sandeep Sharma, J. (Oral)

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By way of present petition filed under Art. 227 of the Constitution of India, challenge has been laid to order dated 16.9.2019 passed by learned District Judge, Hamirpur, Himachal Pradesh in CMA No. 629 of 2017 in Civil Appeal No. 30 of 2017, whereby an application under Order XIV, rule 5 CPC having been filed by the petitioner-defendant (hereinafter, ‘defendant’) praying therein for framing of additional issues, came to be dismissed.

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2. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned by learned Court below, while passing impugned order dated 16.9.2019, this Court is in agreement with Mr. Naresh K. Sharma, learned counsel representing the defendant that learned Court below has wrongly interpreted the judgment rendered by Hon'ble Apex Court in Saleem Bhai vs. State (2003) 1 SCC 557.

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Whether reporters of the Local papers are allowed to see the judgment? .

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Careful perusal of aforesaid judgment rendered by Hon'ble Apex Court clearly suggests that the observation/finding of the court that the court, while ascertaining cause of action, is only required to take into consideration the averments contained in the plaint, is altogether in different context. In the case before Hon'ble Apex Court, controversy was with regard to rejection of plaint by a Court, while exercising power under Order VII, rule 11 CPC. Hon'ble Apex Court, while holding that an application under Order VII, rule 11 can be filed at any stage of suit before pronouncement of judgment, categorically held that for the purpose of deciding an application under clauses (a) and (d) of rule 11 of Order VII CPC, averments in the plaint are germane and pleas taken by the defendant in the written statement are wholly irrelevant at that stage. Aforesaid observation/finding returned by court below is definitely in the context of exercise of jurisdiction by court below under Order VII, rule 11 CPC.

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3. Bare perusal of the provisions contained in Order XIV, rule 5 CPC, which is reproduced herein below, nowhere suggests that the court, while determining the cause of action, if any, is only required to look into the averments contained in the plaint, rather, aforesaid provision of law casts a duty upon the court to frame issue, after reading the plaint and written statement, if any. At this stage, it would be apt to take note of Order XIV, rule 5 CPC:

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“5. Power to amend, and strike out, issues.

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(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

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(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.”

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4. It is quite apparent from the reading of aforesaid provision of law that the court, while framing issues, is not only required to go through contents of plaint and the written statement, but it is required to ascertain, upon what material propositions of fact and law, the parties are at variance and then to proceed to frame and record issues, on which right decision of the case appears to depend.

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5. In the case at hand, written statement filed by the defendant clearly reveals that specific objection has been taken on behalf of the defendant with regard to cause of action, as such, learned first appellate Court, which has otherwise wide powers under Order XLI, rules 23, 24 and 25, to frame issues, ought to have accepted the prayer made in the application filed on behalf of the defendant, under Order XIV, rule 5 CPC. Hence, findings recorded by learned Court below contrary to aforesaid settled position of law, require to be set at right.

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6. This Court sees no illegality or infirmity in the findings returned by learned Court below that the issue with regard to jurisdiction being purely legal in nature, can be raised at any stage of the proceedings. Similarly, this Court finds no error in the finding returned by learned Court below, qua plea/issue raised by the defendant with regard to non-framing of the issue on the point of valuation of the suit. Issue with regard to valuation for the purpose of court fee, is definitely an issue between the plaintiff and the court and defendant has no role to play in the same.

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7. Under the Code, first appellate Court has ample power to frame additional issues in case, it appears to it that the court from whose decree, appeal is preferred, has omitted to frame a particular issue and determine any question of fact, which may be essential for the right decision of the suit upon merits.

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8. Though, under Order XLI, rules 23, 25 CPC, court below being first appellate Court can remand the case back after framing additional issue(s) with the direction to trial court to decide the same within a stipulated time and thereafter return findings qua the same to the first appellate Court enabling it to pronounce the judgment, but under Order XLI, rule 24 CPC, first appellate Court can also resettle the issues, if necessary, especially when it is satisfied that there is sufficient evidence available on record enabling it to pronounce the judgment,

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specifically qua the issues proposed to be framed as additional issues.

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9. Since, there are specific pleadings contained in the plaint and written statement qua the issue of cause of action, this Court sees no necessity for the first appellate Court to remand the case back, but definitely in view of categorical finding returned by this Court qua the aforesaid issue of cause of action, this Court directs first appellate Court to frame a specific issue with regard to cause of action and after affording parties to lead evidence, decide the appeal accordingly.

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10. Consequently, in view of above, present petition is allowed. Order dated 16.9.2019 passed by learned District Judge, Hamirpur, Himachal Pradesh in CMA No. 629 of 2017 in Civil Appeal No. 30 of 2017 is set aside. Learned first appellate Court is directed to frame an additional issue, as observed above. Learned counsel for the parties to undertake before learned first appellate Court on 8.11.2019 , when matter is already fixed, enabling court below to proceed further with the matter in terms of directions contained in the instant judgment.

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11. The petition stands disposed of in the aforesaid terms, alongwith all pending applications.

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Copy Dasti .

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(Sandeep Sharma) Judge

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November 5, 2019 (Vikrant)

Sandeep Sharma v. Narinder Sharma

Case brief

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Sandeep Sharma v. Narinder Sharma

Case brief

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