Murarilal Sharma vs Ashok Kumar Garg

Heard finally with the consent of both the parties at the motion stage.

In this petition under Article 227 of the Constitution of India, petitioner has assailed the validity, legality and propriety of the order dated 26/08/2019 passed in Civil Suit No. 91-A/2018 by the 2nd Civil Jude Class-II, Morena (M.P.) whereby application under Order 14 Rule 5 of the CPC for framing additional issues on the basis of pleadings of the parties has been rejected.

Brief facts leading to filing of this case are that respondent/plaintiff has filed a suit for eviction and recovery of unpaid rent. It is pleaded that house in question was owned by Late Shri Goverdhan Das Garg and as per the oral partition between the plaintiff and his brother Shyam Sunder, the part of the house in which shop is being run by the the petitioner/defendant came in his share. The respondent/plaintiff further averred that on account of the aforesaid partition he became the tenant and was paying regular rent of the said shop. The respondent-plaintiff showed his bonafide requirement for the purpose of business of his son Vijay Kumar has sought eviction of the shop.

Petitioner/defendant appeared before the Trial Court and filed the written statement denying the averments made in the plaint, inter-alia contending that the shop in question was rented out to the defendant/petitioner by Prahlad Das on rent of Rs. 200/- per month. He also received Rs. 2000/- as advance through written agreement dated 18/07/1988. Petitioner/defendant never violated any condition of the said agreement which is still existing, therefore, respondent-plaintiff has no right to sue against him. During pendency of the aforesaid suit, petitioner filed an application under Order 6 Rule 17 of the CPC seeking amendment in the written statement on the ground that after death of late Shri Goverdhan Das Garg who was original owner of the property, son Shyam Sunder, Gopaldas, Prahaladdas, Ashok Kumar, Chhutto, Rajbai and one unknown daughter became owner of equal share i.e. 1/8 -1/8. This aspect was concealed and the present suit has been filed on the wrong facts based on oral family partition. Learned Trial Court allowed the application and permitting the defendant to incorporate the pleadings. In view of the aforesaid amendment, the petitioner filed an application under Order 14 Rule 5 of the CPC for framing the additional issues. Respondent/plaintiff filed reply to the said application denying the averments. Respondent/plaintiff further submitted that proposed issues are covered by issue Nos 1 and 6.

Earlier learned Trial court had framed the following issues :

1

क्या प्रतिवादी वादी का मुरैना टॉकीज वाली गली रूई की मण्डी मुरैना स्थित भवन तल मंजिल की दुकानों (जिसे अक्षपश्चात वादग्रस्त परिसर के नाम से संबोधित किया जावेगा) में 500 रू. प्रतिमाह की दर से मासिक किरायेदार आवाद है।

2

क्या प्रतिवादी ने वादी के वादग्रस्त परिसर के स्वत्वों से इंकार किया है।

3

क्या वादी को वादग्रस्त परिसर की अपने वयस्क पुत्र के कारोबार हेतु सदभावनापूर्वक वास्तविक आवश्यकता है।

4

क्या मुरैना शहर में वादी के पास उक्त प्रयोजन के लिये युक्तियुक्त रूप से उपयुक्त अन्य रिक्त स्थल उपलब्ध नहीं है।

5

क्या प्रतिवादी ने युक्तियुक्त कारण के बिना वादग्रस्त परिसर का वाद प्रस्तुती के ठीक पूर्व लगातार 6 माह से किरायेदार के प्रयोजन से उपयोग नहीं किया है।

6

क्या वाद के आवश्यक पक्षकार के असंयोजन का दोष है।

7

क्या वादी द्वारा न्यायशुल्क एवं अधिकारिता के प्रयोजन से वाद का उचित मूल्याकंन किया गया है।

8

क्या वादी द्वारा वाद मे समुचित न्यायशुल्क अदा किया गया है।

9

सहायता एवं व्यय

In the application under Order 14 Rule 5 of the CPC, the petitioner proposed following additional issues :

1

क्या विवादित भवन जिसमें किरायेदारी वाली दुकाने स्थित का स्व. गोवर्धनदास गर्ग के सभी वैधानिक वारिसान के मध्य बंटवारा हुआ ?

2

क्या स्व. गोवर्धनदास गर्ग के सभी वैधानिक वारिसान के मध्य बंटवारा होने से वादी किरायेदारी वाली दुकानों का स्वामी नहीं है ?

3

यह कि उक्त प्रस्तावित वाद प्रश्न प्रकरण के निराकरण में सहायक है।

It is contended by the learned counsel for the petitioner that the learned Trial Court while considering the application did not consider the fact that respondent/plaintiff has filed the present suit in representative capacity or individual capacity and that daughters who are necessary parties have not been impleaded. The aforesaid issue is an important issue which goes to the root of the case and the learned Trial Court ought to have framed the issue with regard to the same. In view of the aforesaid, the impugned order is not in accordance with law, therefore, reply be set-aside and as a consequence an application under Order 14 Rule 5 of the CPC needs to be allowed.

Learned counsel appeared for the respondent/plaintiff and denied the averments of the petition contending that on the basis of the pleadings, the Trial Court has rightly framed the issues and proposed issues are covered under issue Nos. 1 and 6 already framed by the Trial Court.

Heard learned learned counsel for the parties.

On perusal of the pleadings i.e. plaint, written statement, issues framed by the Trial Court and proposed issues, it can be seen from Para No.6 of the written statement in which it has been categorically admitted that respondent-plaintiff is receiving rent, therefore there is no need to frame additional issues. Moreover, the learned Trial Court has rightly come to the conclusion that proposed issues are covered in issues Nos. 1 and 6 which are already framed. Thus, the learned Trial Court has rightly rejected the application. Learned Trial Court has passed the order based on the sound principle of law.

Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution can not be exercised to correct all errors of a judgment of a court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See:Jai Singh and others vs. M.C.D. and others (2010) 9 SCC 385 and Shalini Shyam Shetty Vs. Rajendra Shankar Patil (2010) 8 SCC 329].

Furthermore, the Hon'ble Supreme Court in the case of Kazimunnisa Dead By Legal Representative Vs. Zakia Sultana (dead By L.Rs (2018) 11 SCC 208 has again considered the scope of Article 227 of the Constitution of India. Relevant para is reproduced herein below:-

"The High Court should have decided the matter by keeping in view the scope and ambit of Article 227 of the Constitution of India for its exercise as explained by the Supreme Court consistently in a series of decisions. The High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first appellate court by appreciating the entire evidence little realising that the jurisdiction of the High Court while deciding the writ petition under Article 227 is not akin to an appeal and nor can it decide the writ petition like an appellate court".

In the instant case, the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution. In view of the preceding analysis, the instant petition fails and is hereby dismissed.