Mohammad Mustafa @APPELLANT@Hash Akbar Ali and Ors

Sandeep Sharma

1.Being aggrieved and dis-satisfied with order dated 20.9.2018, passed by the learned Senior Civil Judge, Court No.1 Sundernagar, District Mandi,

H.P., whereby an application under Order 14 Rule 5 read with Section 151 CPC, praying therein for framing of additional issues, having been filed on

behalf of the petitioner/defendant (hereinafter referred to as the defendant) came to be dismissed, defendant has approached this Court in the instant

proceedings filed under Article 227 of the Constitution of India, praying therein to allow the aforesaid application and issue direction to the court below

to frame additional issue as farmed in the application referred here in above.

Briefly stated facts as emerge from the record are that by way of an application under Order 14 Rule 5 read with Section 151 CPC, defendant

prayed for framing of additional issue to the effect that Khadim Ali, died in the year, 1947. Plaintiffs filed suit for declaration and permanent

prohibitory injunction under Sections 34, 37 and 38 of the Specific Relief Act, praying therein for decree of declaration to the effect that mutation No.

810 dated 3.10.1990, is null and void and does not confer any right on the defendant and similarly, the alleged Will of Khadim Ali be declared null and

void being concocted one. Aforesaid suit having been filed by the plaintiff came to be resisted by way of written statement filed by defendant No.1.

Close scrutiny of pleadings adduced on record by the parties suggests that the plaintiff claimed succession qua the estate of one Khadim Ali. As per

pleadings available on record, Khadim Ali died in the year, 1947. Respondents/plaintiffs claimed that Khadim Ali never executed any Will and Will, if

any, is null, void, wrong and illegal because parties belong to Sunni community and are governed by the Mohammadan law and as such, Khadim Ali

could not have executed the Will. Plaintiffs also challenged the Will and subsequent mutation No. 810, dated 3.10.1990. Defendant contested the suit

on the ground that Khadim Ali bequeathed the land in favour of the defendant and mutation No. 810 dated 3.10.1990, is legal and void. On the

pleadings of the parties, court below framed following issues:-

“1.Whether the Will executed by deceased Khadam Ali in favour of the defendants could not have been executed by the deceased and therefore,

it is invalid? OPP.

2.Whether the plaintiffs are entitled to decree for declaration qua the ownership and possession, as prayed for? OPP.

3.Whether the plaintiffs are also entitled to decree for consequential relief of permanent prohibitory injunction? OPP.

4.Whether the suit is not maintainable? OPD.

5.Whether the plaintiffs have no locus standi? OPD.

6.Whether the suit is barred by limitation? OPD.â€​

“Order 14 Rule 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.â€​

Record further reveals that after framing of issues, evidence was led on record by the respective parties and at the time of final arguments,

defendant moved an application under Order 14 Rule 5 read with Section 151 CPC, praying therein for framing of additional issue as has been taken

note herein above. In the application, defendant claimed that issue qua the fact that Khadim Ali died in the year, 1947, has not been framed, but

careful perusal of the pleadings adduced on record by the respective parties clearly suggest that there is no dispute at all with regard to the death of

Khadim Ali in the year, 1947. Plaintiffs in para-3 of the plaint has specifically stated that Khadim Ali died in the year, 1947, which fact has not been

specifically denied by the defendant in his written statement and as such, learned court below rightly concluded that order 14 Rule 1 clearly provides

that issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. In the case at hand, there is no dispute at

all inter-se parties with regard to the factum of death of Khadim Ali as is evident from the pleadings available on record, rather dispute inter-se parties

is only qua the Will alleged to have been executed by Khadim Ali and issue qua the same has been already framed as has been reproduced herein

above.

Leaving everything aside, this Court finds that court below on the basis of pleadings adduced on record by the respective parties has already framed

relevant issues qua the legality and validity of Will alleged to have been executed by the Khadim Ali. Careful perusal of impugned order reveals that

prior to filing of application at hand, defendant had also filed an application under Order 8 Rule 1-A(3) CPC, seeking therein permission to place on

record documents, but same was dismissed, whereafter defendant approached this Court by way of CMPMO No. 483 of 2016, which was also

dismissed. Order passed by this Court was taken to Hon’ble apex Court by way of SLP, but same was also dismissed. Impugned order passed by

the court below further suggests that even in evidence, when defendant and plaintiff No.3 stepped into the witness box as PWs, he categorically

deposed that Khadim Ali died in 1947, but not even single suggestion was ever put to PW1 as to when Khadim Ali died in the year, 1947 or not.

Consequently, in view of the detailed discussion made herein above, this Court has no hesitation to conclude that impugned order passed by the

court below is based upon proper appreciation of law as well as facts and as such, does not call for any interference and as such, same is upheld.

Accordingly, present petition is dismissed being devoid of any merits.