Mr. Rajendra Prasad @APPELLANT@Hash Mr. B.H. Krishna

Having heard learned counsel for the petitioner and having perused the material placed on record, this Court is unable to approve the order dated

09.01.2018 passed by the Trial Court on I.A.No.18 filed by the defendant under Order XIV Rule 5 of CPC. By the application aforesaid, the

defendant/petitioner sought framing of an additional issue on the basis of the pleadings as taken in paragraphs 6(v) (vi) and (vii) of the written

statement.

The said prayer has been disallowed by the Trial Court with the observations that since the plaintiff has not filed rejoinder, there is no denial and

hence, no additional issue is required to be framed. The order of the Trial Court reads as under :

“Heard on I.A.18 filed by the Deft. 2 u/o.XIV Rule 5 of CPC. The above I.A. is filed on behalf of Deft.2, praying to frame additional issue as

shown infra.

Addl. Issue :

“Whether the suit of the plaintiff for permanent injunction is maintainable in the absence of relief for declaration of title in view of para No.6(v)(vi)

and (viii) of the written statement?

For the reasons stated in the affidavit annexed to the I.A.

The above suit is filed for the relief of permanent injunction.

In this case, even though Deft. 2 has taken many contentions in the written statement, since the plaintiff has not filed rejoinder to the said pleadings, or

contentions taken by the Deft.2, under Or XIV R-1 of CPC, addl. issue cannot be framed, when there is no denial. Hence, I.A.18 is dismissed, as not

maintainable.â€​

The objection raised by the defendant/petitioner, as regards to the very maintainability of the suit, is basically a proposition of law and

constitutes a part of the defence of the defendant. Even if the plaintiff has not filed a replication, that does not mean that the plaintiff has admitted

such a proposition. On the contrary, the very fact that the plaintiff seeks to maintain the suit for perpetualÂ

injunction and the defendant seeks to question its maintainability for want of the relief of declaration, it is evident that a material proposition of

law is affirmed by one party and denied by another. In the given circumstances it was required that an appropriate issue was framed for effectual

determination of all the matters in controversy.

Hence, and in view of the above, the impugned order dated 09.01.2018 is set aside. The Trial Court shall frame an appropriate issue in conformity

with this order and shall then proceed with the matter in accordance with law.

The petition stands allowed to extent and in the manner indicated above. No costs.