Khumanthem Ibeyaima Devi And Others vs Kangabam (O) Ketuki Dev And Ors

Kh. Nobin Singh, J

[1] Heard Shri R.K. Nokulsana, learned Senior Advocate assisted by Shri Y. Sanajaoba, learned counsel appearing for the petitioners; Shri R.K. Tomma, learned Advocate appearing for the respondent No.1 and Shri U. Augusta, learned Advocate appearing for the respondent No. 3. None appears for the respondent No. 2.

[2] This civil revision petition is directed against the order dated 11-05-2015 passed by the learned Civil Judge, Senior Division, Manipur-East (hereinafter referred to as "the Civil Judge") in Judl. Misc. Case No. 216 of 2015.

[3.1] Facts and circumstance which have led to the filing of this civil revision petition, in short, are that on 22-06-1998, the respondent No.1 filed a suit being OS No.20 of 1998 against the petitioners on the allegation that she is the lessee of the stall No.5(A), Purana Bazar, Imphal belonging to the Imphal Municipal Council. According to her, there are several shop stalls belonging to the Imphal Municipal Council, of which the suit stall is the one which is alleged to have been leased to the respondent No.2 who had voluntarily given it up in favour of the respondent No.1. The respondent No.1, on her becoming the registered lessee of the suit stall, asked the petitioners who were occupying it, to vacate the suit stall stating that she had become the lessee in respect of it and was entitled to possess it. The petitioners are alleged to have been put into occupation of the suit stall by the respondent No.2 who was once the lessee who raised no objection when the suit stall was re-allotted in favour of the respondent No.1. The petitioners requested the respondent No.1 to allow them to occupy the suit stall for sometime stating that they would vacate the same as and when they could shift to other suitable place for continuing their respective business. But the petitioners failed to vacate the suit stall despite repeated request being made by the respondent No.1 and accordingly, the said suit was filed by her against the petitioners.

[3.2] On 20-07-1998, a written statement on behalf of the petitioner No.1 was filed denying the averments made in the plaint. The said suit stall was leased out to the petitioners by the respondent No.2 on certain terms and conditions, because of which the petitioners paid the rent to the respondent No.3 directly and sometimes through the respondent No.2 and they are in occupation of it. After about eight months from the date on which the petitioner No.1 filed her written statement, the Imphal Municipal Council, the respondent No.3 filed its written statement. The respondent No.2 did enter appearance but did not file his written statement for quite some time and a written statement was filed by him only in the month of July, 1999.

[3.3] The issues were farmed by the learned Civil Judge in the month of December, 1999 but on many occasions, the parties could not file their lists of witnesses and moreover, the proceedings of the suit had to be adjourned due to general strikes, transfer of the presiding officer etc. In the month of November, 2000, the respondent No.1 filed an application for amendment of the plaint and after the same being allowed, a recast plaint was filed. Thereafter, in the month of January, 2001, an application was filed by the petitioners for amendment, the disposal of which took about six months. The respondent No.1 could not produce his witness for about three years.

[3.4] In CRP No.1 of 2004, the Hon'ble Gauhati High Court vide its order dated 07-01-2004 stayed the proceedings pending before the learned Civil Judge and after the disposal of the CRP, on 26-07-2006, the learned Civil Judge was informed about it. In the meantime, the counsel appearing for the respondent No.2 had expired and accordingly, the court's notice was issued to him and on 14-03-2007, his counsel appeared and prayed for time. In the month of May, 2007, the petitioners filed a Judl. Misc. Case praying for dismissal of the suit for want of cause of action but was rejected. Thereafter, the Judl. Misc Case No.4 of 2004 filed by the respondent No.1 for recalling her witnesses was taken up and after the same being allowed in the early part of 2011, the PW-1 and PW-2 were re-examined and discharged by the court in the month of May, 2012.

[3.5] In the month of June, 2012 the respondent No.1 filed an application for producing additional witness which was allowed and she closed her evidence in the early part of 2013. On 16-02-2014, the petitioners examined their witnesses and the recording of their evidence was closed in the month of July, 2014. Thereafter, the argument commenced and continued for about seven proceedings and during the course of argument, according to the petitioners, it had come to their knowledge that certain issues had been left out and accordingly, the petitioners filed the application being Judl. Misc. Case No. 216 of 2015 praying for framing additional issues. A written objection was filed by the respondent No.1 contending that no additional issues could be farmed on the basis of the documents exhibited without any pleading thereof and that the application was filed with a view to harass him and also to delay the disposal of the suit. Although the proposed issue existed at the framing the issues, it was given up by the petitioners and therefore, the prayer of the petitioners could not be entertained by the Court.

[4] On 11-05-2015, the learned Civil Judge, after hearing the counsel appearing for the parties, disposed of the said application, the operative portion of which reads as under"

"The plaintiff had examined her witnesses including herself and the defendants No. 1 and 2 had also examined their witnesses and the defendants No. 1 and 2 had closed their evidence on 21-7-2014 and final argument was heard in part in two three series and the final hearing is at the stage of closing and deliver the judgment. The prayer of the petitioner to frame the additional issues at this stage cannot be entertained for the observation given above and moreover from the reliefs claimed by the plaintiff especially in relief No. 1 the plaintiff prays for a decree declaring that she is the best person entitled to possess the suit stall as its authorized lessee of the proforma defendant No. 4 which is the crux of the case to be decided after appreciating the pleadings of the parties as well as the documents produced by them."

[5] It has been submitted by Shri R.K. Nokulsana, the learned Sr. Advocate appearing for the petitioners that the farming of additional issues is permissible under the provisions of Order XIV Rule 5 CPC, as no decree has yet been passed by the learned Civil Judge. It has further been submitted by him that with the change in the method of allotment of the stalls by the Imphal Municipal Council, the additional issues are required to be framed in order to determine the real controversy between the parties, for which the documents had already been exhibited by the trial Court. Combating his contention, it has been submitted by Shri R.K Tomma, the learned counsel appearing for the respondent No.1 that in the absence of any pleading as regards the said documents, no additional issues can be framed by the Court.

[6] The issue involved herein relates to the interpretation of the provisions of Order XIV Rule 5 of CPC which reads as under:

"5. Power to amend and strike out issues. - (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.

(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."

[7] On perusal of the provisions of Order XIV Rule 5 CPC, it is seen that the issues which have been framed earlier, can be amended or additional issues can be framed before any decree being passed by the Court subject to the condition that it is permissible only to determine the matter in controversy between the parties. In the present case, it is not in dispute that a final decree has not yet been passed by the learned Civil Judge and that the suit is pending at the stage of argument. Admittedly, the stalls of the Imphal Municipal Council were earlier allotted on lease basis and both the parties claimed that they are the leases in respect of the suit stall on the ground that it was given to them on lease by the respondent No.2. It may be noted that the stalls are allotted temporarily by the Imphal Municipal Council, the respondent No.3. The contention of the learned counsel appearing for the petitioners is that during the pendency of the suit, the Imphal Municipal Council, in exercise of power conferred under the provisions of the Manipur Municipalities Act, 1994, had issued the Bye-Laws namely the Imphal Municipal Council (Registration and Licensing of Shops) Bye- Laws, 1998. In terms of the provisions of the said Bye-Laws, the registration certificates and shop licences have been issued in favour of the petitioners and the relevant documents filed by the petitioners in respect thereof, have been marked as Ext. B/7, B/8, B/14 and B/15 in the suit. The fact that these documents have been exhibited, cannot be disputed by the respondent No.1 as is evident from the impugned order and all that she submitted, is that since there is no pleading in respect of the said documents, no additional issue can be framed by the Court. Moreover, the additional issue proposed by the petitioners, could have been considered by the learned Civil Judge while framing the issues, if there was a prayer made by the petitioners for that purpose. The petitioners failed to do that and they became wiser after about fifteen years. The contention of the respondent No.1 appears to be correct to that extent but the fact remains that there has been a change in the method of allotment of stalls by the Imphal Municipal Council. While the stalls were being allotted earlier on lease basis, the allotment of stalls has been made by issuing licenses after the issuance of the said Bye-Laws. In other words, the allottees become licenses on payment of fees and leasehold rights are no longer in existence. If that be so, any decree passed by the learned Civil Judge will have no meaning at all in view of the change in the method of allotment of stalls and in the absence of any issue relating to the change in the circumstances because of the said Bye-Laws, it may not be possible for the Court to determine the real controversy between the parties. To allow framing of additional issues will not amount to decreeing the suit and it is still for the petitioners to prove their case in the trial of the suit. The learned Civil Judge had not considered these aspects and the application was rejected by the learned Civil Judge only on the ground that the suit was at the stage of final argument and the prayer for framing additional issues could not be entertained by it. The learned Civil Judge has failed to consider the real controversy between the parties after the change in the method of allotment of stalls, in the sense that it has failed to see the likely effect of any decree being passed by it on the lis between the parties, when the registration certificates and shop licenses have been allegedly issued by the Imphal Municipal Council in favour of the petitioners. Considering the submissions made by the counsel appearing for the parties, this Court is of the view that this civil revision petition has substance and merit.

[8] For the reasons stated hereinabove this civil revision petition is allowed and consequently, the impugned order dated 11-05-2015 passed by the learned Civil Judge, Senior Division, Manipur-East in Judl. Misc. Case No.215 of 2015 is quashed and set aside subject to the payment of Rs.5000/- (Rupees five thousand ) only as costs to be paid to the respondent No.1 by the petitioners within a period of three weeks from today. The learned Civil Judge is directed to frame additional issue after hearing the parties in respect thereof. Keeping in mind the fact that the suit has been pending for the last more than twenty years, the learned Civil Judge is expected to make an endeavour to dispose of it at the earliest possible.

List the suit before the learned Civil Judge, Senior Division, Manipur-East on 28-08-2019 for further proceedings and the parties are directed to appear before it on the date mentioned above.