Disposed

Lrs. of Mohan Lal v. Lrs. of Nandlal

Rajasthan HC2 Sept 2024CW/14042/2024

Case brief

AI extract

What is this about?

Writ petition challenging rejection of application to frame additional issues post-plaint amendment. High Court held that framing additional issues was mandatory upon amendment of pleadings and relief, regardless of non-proposal by plaintiff, and set aside the impugned order.

What did the court decide?

Impugned order set aside; Trial Court directed to frame additional issues on the next date.

Lrs. of Mohan Lal Vs Lrs. of Nandlal — Civil Procedure and Limitation | Rajasthan HC (2024)

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[2024:RJ-JD:36209]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 14042/2024

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Lrs. Of Mohan Lal, S/o Late Ramlal Tiwari, Resident Of Bus Stand Road, Near Petrol Pump, Gangapur, Bhilwara, Through-

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1/1. Kanchan Devi W/o Late Mohan Lal Tiwari, Aged About 70 Years, Gangapur.

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1/2. Narayan Lal S/o Late Mohan Lal Tiwari, Aged About 35 Years, Gangapur.

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1/3. Sunil Kumar S/o Late Mohan Lal Tiwari, Aged About 32 Years, Gangapur.

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1/4. Giriraj S/o Late Mohan Lal Tiwari, Aged About 33 Years, Gangapur.

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----Petitioners

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Versus

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Legal Representatives Of Nandlal, S/o Late Ramlal Tiwari, Resident Of Ward No.7, Near Shastri Park, Shastri Nagar, Gangapur, District Bhilwara Through-

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1/1. Chandrashekhar S/o Nandlal Tiwari, Gangapur, At Present Resident Of Saanwalia Mix Ice Cream, Street No. 5-6 Ki Khol, Parola Road, Dhulia (Maharashtra).

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1/2. Manohar D/o Late Nandlal Tiwari W/o Jata Shankar Sharma, Mhow, Tehsil Railmagra, District Rajsamand (Raj.).

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1/3. Sushila D/o Late Nandlal Tiwari W/o Ganpat Sharma, Kurj, Tehsil Railmagra, District Rajsamand (Raj.)

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1/4. Maya D/o Late Nandlal Tiwari W/o Lakshmi Shankar @ Lal Ji Upadhyay, Mohi Tehsil And District Rajsamand (Raj.)

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1/5. Durga D/o Late Nandlal Tiwari W/o Om Prakash Sharma, Pahuna, At Present Sanwalia Mix Ice Cream, Street No. 5- 6 Ki Khol, Parola Road, Dhulia (Maharashtra).

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1/6. Sita D/o Late Nandlal Tiwari W/o Durgesh Joshi, Dhanet, District Chittorgarh (Raj.)

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1/7. Sarita D/o Late Nandlal Tiwari W/o Manmohan Upadhyay, Near Central Hospital, Behind Bhairu Bavji, Gangapur, Tehsil Sahada District Bhilwara (Raj.)

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Asha Devi W/o Chetan Prakash, Gangapur Tehsil Sahada District Bhilwara.

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[2024:RJ-JD:36209]

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Municipal Corporation Gangapur District Bhilwara, Trough The Executive Officer, Municipal Corporation Gangapur District Bhilwara.

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...Contesting Defendants

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1. Vimla Devi D/o Late Mohan Lal Tiwari W/o Rampal Sharma, C-25, Azad Nagar, Bhilwara.

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Chanda Devi D/o Late Mohan Lal Tiwari W/o Satya Narayan Sharma, Near Chhoti Pulia, 104/a Subhash Nagar, Bhilwara.

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Jashoda Devi D/o Late Mohan Lal Tiwari W/o Kush Kumar Sharma, Near Bade Charbhuja Temple, Bhagwa Chowk Kunwaria, District Rajsamand.

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Krishna D/o Late Mohan Lal Tiwari W/o Prabhulal Sharma, Khandel, District Rajsamand.

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----Respondents

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For Petitioner(s)

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: Mr. Muktesh Maheshwari with Mr. Gourav Choudhary

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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02/09/2024

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The present writ petition has been preferred against the order dated 06.03.2024 passed by the Additional District Judge, Gangapur, District Bhilwara in Civil Suit No.104/2015 whereby the application under Order 14 Rule 5, CPC as preferred on behalf of the petitioner-plaintiff has been rejected.

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Vide the application under Order 14 Rule 5, CPC, a prayer to frame additional issues was made on behalf of the plaintiff on the premise that the plaint had been amended after the order dated 30.01.2023 on an application under Order 6 Rule 17, CPC having been passed. After the amended plaint having been filed, even the amended written statement was filed and hence, the additional

[2024:RJ-JD:36209]

[CW-14042/2024]

(3 of 5)

issues qua the said amendment were required to be framed. However, the learned Court proceeded on to reject the application on the premise that no additional issues had been proposed on behalf of the plaintiff.

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Heard learned counsel for the petitioner and perused the material available on record. 3. A bare perusal of the order-sheets makes it clear that on 11.01.2023, the application under Order 6 Rule 17, CPC was allowed, in pursuance to which the amended plaint was filed on 30.01.2023. The amended written statement was filed on 31.05.2023 and on this date, the matter was posted for framing of issues on 15.07.2023.

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Both the order-sheets dated 31.05.2023 and 15.07.2023 reflect that the matter had been posted for framing of issues. However, it seems that on 24.07.2023, because of an application under Order 8 Rule 9, CPC been filed on behalf of the plaintiffs, the matter proceeded on the said application and further, on the subsequent application filed under Order 22 Rule 3, CPC. However, the Court while deciding the application under Order 8 Rule 9, CPC vide order dated 17.10.2023, posted the matter for plaintiff’s evidence.

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A bare perusal of the order-sheet dated 17.10.2023 reflects that the words "कायमी तनकिकयात " have been crossed by learned ” Court and have been replaced by "साኚ᭻वादी . 5. In view of the above facts and in view of the admitted fact that the plaint was amended and even the amended written statement was filed, additional issues were to be framed as a necessary corollary.

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[CW-14042/2024]

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The finding as recorded by the Court that no requirement to frame the additional issues was found, seems to be incorrect on the face of it.

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Admittedly, what was permitted to be amended and added, were the pleadings regarding the construction raised by the defendants during the pendency of the suit, and a consequential prayer for mandatory injunction. Therefore, an issue definitely was required to be framed qua the said prayer which was subsequently permitted to be added.

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The mere non-proposal of the amended issues by the plaintiff could not relieve the Court of its duty to frame the additional issues and once a prayer had been made on behalf of the plaintiff to frame the additional issues qua the amended pleadings and relief, the Court should have proceeded on to frame so.

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In view of the above observations, the present writ petition is disposed of while setting aside the impugned order dated 06.03.2024. The learned Trial Court is directed to frame additional issue/issues strictly to the extent of the amendment as allowed vide order dated 11.01.2023. As submitted on record, the plaintiff’s evidence has not been led yet therefore, the Court shall be under an obligation to frame the additional issue/issues on the very next date itself.

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The present order has been passed by this Court without issuing notices to the respondents, in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, keeping into consideration the fact that keeping the present petition

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pending after staying the further suit proceedings, would be against the interest of the respondents only.

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However, if the respondents defendants propose to contest the present writ petition and challenge the present order, they would be at liberty to get the present writ petition restored and pray for recalling of the present order. In the said circumstances, further proceedings in Civil Suit No.104/2015 pending before the Additional District Judge, Gangapur, District Bhilwara shall remain stayed.

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Stay petition and all pending applications, if any, stand disposed of .

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(REKHA BORANA),J

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8-Devanshi/-

Lrs. of Mohan Lal v. Lrs. of Nandlal

Case brief

What is this about?

What did the court decide?

Lrs. of Mohan Lal v. Lrs. of Nandlal

Case brief

What is this about?

What did the court decide?

What the court decided

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