Kishore Kedia Vs Harsh Vardhan Tibrewal

By filing the present CMP application under Article 227 of the Constitution of India, the plaintiff in C.S. No.8 of 2012 pending in the Court of learned Civil Judge, Jr. Division, Jharsuguda has approached this Court challenging order dated 15.01.2026 at Annexure-8 passed by the trial court thereby rejecting the prayer of the Petitioners under Order 14 Rule 5 to frame and additional issue with regard to the adoption of the Defendant No.1.

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Learned Senior Counsel for the Petitioners at the outset contended that initially the Petitioners-plaintiff filed a suit for permanent injunction. The defendants after their appearance filed a

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Page 1 of 6.

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WS. In the WS the Defendant No.1 took a specific plea that he is the adopted son of late Smt. Pana Devi, widow of late Mulchand Tibrewal. On the basis of stand taken in the WS by the Defendant No.1, the plaintiff filed a petition under Order 14 Rule 5 at Annexure-3 requesting the learned trial court to frame an additional issue with regard to adoption of the Defendant No.1 by the abovenoted person. Such application having been rejected initially vide order dated 12.12.2025, the Petitioner has approached this Court by filing the present CMP application.

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In course of hearing, learned Senior Counsel for the Petitioner contended that since the Defendant No.1 has taken a specific stand that he is the adopted son of late Smt. Pana Devi, which came into knowledge of the Petitioner only after filing of the WS, the Petitioner filed an application before the learned trial court to frame a specific issue with regard to the adoption of the Defendant No.1 by late Smt. Pana Devi. He further contended that such an issue stemed from the ground taken in the WS and which is a very relevant issue to grant the decree of the permanent injunction as prayed for by the plaintiff in the suit.

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The learned trial court by virtue of the impugned order dated 15.01.2026 at Annexure-8 rejected such prayer on the ground that the plaintiff has not challenged the factum of the adoption as pleaded by the Defendant No.1 in his written statement and that the suit has been filed only for grant of decree of permanent injunction or mandatory injunction against the Defendant directing them to restore the diesel and petrol supply pump and to reinstall the same over the suit land and not to interfere if and when the plaintiff goes over the suit land and not to interfere in the control & management of the petrol pump

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Page 2 of 6.

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by the plaintiff. On a perusal of the rejection order dated 12.12.2025, this Court observes that the prayer for framing of an additional issue has been rejected on the ground that the plaintiff has not challenged the factum of adoption pleaded by the Defendant No.1.

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While the matter stood thus, the plaintiff filed an application seeking review of order dated 12.12.2025 under Order 47 Rule 1 CPC read with Section 151. The learned trial court by virtue of the impugned order dated 15.01.2026 passed in the abovenoted suit again rejected the review petition. Being aggrieved by such rejection of his review petition, the Petitioner calls in question the validity and legality of the order dated 15.01.2026 along with the order dated 12.12.2025 at Annexure-8 & 5 respectively.

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In course of argument, learned Senior Counsel appearing for the Petitioners stated before this Court that the application of the Petitioners for framing of an additional issue has been rejected only on the ground that the Petitioners have not challenged the factum of adoption as pleaded by the Defendant No.1 in his WS. He further contended that although the plaintiff has denied that the Defendant No.1 has no connection with the plaintiff he had not taken any specific plea challenging the factum of adoption. He further contended that factum of adoption was raised for the first time by the Defendant No.1 in his WS. Thus, there was no scope on the part of the plaintiff to challenge the same. However, considering the relevance of the ground taken in the WS by the Defendant No.1, learned counsel for the Petitioner further contended that the same is required to be heard and to be adjudicated in the present suit for permanent injunction and passed an effective decree in favour of the plaintiff.

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Accordingly, the learned Senior Counsel for the Petitioners emphatically argued that the issue with regard to the adoption of the Defendant No.1 by late Smt. Pana Devi is a valid and relevant issue which is required to be addressed before considering the prayer of the plaintiff in the suit for grant of a decree of permanent injunction. In view of the aforesaid position, the learned counsel for the Petitioner contended that the impugned rejection order at Annexures-5 & 8 rejecting the prayer of the Petitioners to frame an additional issue with regard to the adoption of the Defendant No.1 is highly illegal and arbitrary.

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Learned counsel for the Petitioners, drawing attention of this Court to the provisions contained in Order 14 Rule 5 of the CPC, stated before this Court that such provision in the Civil Procedure Code confers ample powers to the Court to amend the issue or frame additional issues at any time before passing a decree on such terms as it thinks fit. Though, the only condition that has been laid down in Rule 5 Order 14 is that all such amendments or additional issues are required to be verified as to whether the same enables the Court in determining the real matters in controversy between the parties. Such provision also confers power on the learned trial court to strike out any issue if the same is found to be wrongly framed or introduced at any stage before passing of a decree. In the aforesaid context, learned Senior Counsel for the Petitioners referred to the judgment of this Court reported in AIR 1971 OLR 191 .

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On a careful consideration of the submissions made by learned Senior Counsel for the Petitioners and on a critical analysis of the factual background of the present case, further on a close scrutiny of the legal provision involved in the present application, this Court

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found that the Defendant No.1 raised the issue with regard to the adoption in his written statement. It is not disputed that the issue of adoption will have a substantial bearing on the outcome of the suit and that the same is relevant to determine the matters in controversy between the parties before passing a decree of permanent injunction. On perusal of the impugned order at Annexures-5 & 8 this Court observes that the learned trial court has rejected the prayer of the Petitioners by passing a speaking and reasoned order.

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On a critical analysis of the impugned orders, this Court found that the learned trial court has rejected the application filed by the Petitioners principally on the ground that the factum of adoption was not challenged by the plaintiff. At this stage, this Court would like to observe that such a plea of adoption having been raised in the written statement by the Defendant No.1, the same could not have been challenged or pleaded in the plaint by the plaintiff. However, the Court is bound to consider all the issues involved in the suit and to pass a composite judgment taking into consideration the real issue in controversy between the parties. It is also not disputed that in view of the provisions contained under Order 14 Rule 5, the trial court shall have the liberty to frame or amend the issues at any stage of the suit before passing a decree.

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In view of the aforesaid analysis of fact as well as the legal position, further keeping in view the provisions contained under Order 14 Rule 5, this Court deems it proper to dispose of the CMP application by directing the learned trial court to have a relook at the grievance of the Petitioners with regard to framing of an issue regarding adoption of the Defendant No.1, before passing the final decree. It is further made clear that after evidence is laid from both

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sides, the learned trial court, at the stage of argument or before passing the decree, shall reconsider the grievance of the Petitioners with regard to framing of an additional issue with regard to the adoption. Accordingly, the Petitioners are granted liberty to bring up the plea for framing of an additional issue to the notice of the trial court at the time of final hearing of the suit. In such eventuality, the learned trial court shall address such grievance of the Petitioners by passing a speaking order, keeping in view the provision contained under Order 14 Rule 5 of the CPC and shall dispose of such application of the Petitioners before passing of the final decree.

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With the aforesaid observations and directions, the CMP application stands disposed of.

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( A.K. Mohapatra ) Judge

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Rubi

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Signature Not Verified

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Digitally Signed Signed by: RUBI BEHERA Reason: Authentication Location: OHC Date: 11-Mar-2026 10:34:21

Kishore Kedia v. Harsh Vardhan Tibrewal

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