Ghisilal Sukhlecha And Ors vs Deepchand Sukhlecha And Ors

This writ petition has been filed by the petitionersplaintiffs (hereinafter referred to as 'the plaintiffs') against the order dated 29.8.2019 passed by the Trial Court in Civil Suit No. 250/2012, whereby the application filed by the respondentsdefendants (hereinafter referred to as 'the defendants') under Order 14 Rule 5 CPC has been allowed; earlier framed issue no.4 has been deleted and in its place, a new issue has been framed.

Facts of the case are that the plaintiffs filed a suit for partition of the property, permanent injunction and mesne profit. Summons were issued to the defendants. They put in appearance. Written statement was filed and thereafter the issues were framed by the Trial Court inter-alia the issue no.4 that whether the property has been partitioned. The defendants filed an application under Order 14 Rule 5 CPC for deleting the earlier framed issue no.4 and re-framing the same, which has been allowed by the Trial Court vide its order dated 29.8.2019. Hence, this writ petition.

Learned counsel for the plaintiffs submits that the suit was filed in the year 2001. Thereafter issues were framed and plaintiffs evidence was completed and the matter was posted for defendants' evidence. No ground was set up by the defendants in their application under Order 14 Rule 5 CPC for re-framing the issue no.4, which was already framed. Hence, the impugned order is liable to be quashed and set-aside.

Heard. Considered.

Having regard to the submissions made by learned counsel for the plaintiffs, it is noticed that the defendants filed an application under Order 14 Rule 5 readwith Section 151 CPC before the Trial Court mentioning therein that they filed the written statement denying the averments made with regard to partition of the property. They submitted that the original plaintiff had gone in adoption to Phool Chand and thus was having no right in the suit property. The plaintiff was residing in the suit property with the permission of the defendant no.1 and the defendant no.1 is the owner of the property. It was also stated by the defendants in the application that the defendant no.1 partitioned the property amongst his three sons in the year 1991. Thereafter defendants no. 2 to 4 rented out the property and paid the house tax in the Municipal Council. The defendants filed the documents in regard thereto, but no issue with regard to the aforesaid defence was framed. On the contrary, issue no.4 was wrongly framed despite the fact that no such averment was made in the written statement. Thus issue no.4 was rightly deleted by the Trial Court vide its order dated 29.8.2019 and a new issue no.4 was framed by the trial court.

In this view of the matter, I am in agreement with the findings arrived at by the Trial Court in its order dated 29.8.2019.

The power under Article 227 of the Constitution is to be exercised in cases of jurisdictional error, apparent perversity, patent illegality or manifest injustice, which is not the situation here in this case.

For the aforesaid reason, the writ petition fails and the same is dismissed.

Consequent upon the dismissal of the writ petition, all pending applications stand disposed of accordingly.