Patel Sulochanaben and Another vs Alpaben and Others

K.S. Jhaveri, J.—As common facts and law are involved in both these petitions they are heard together and disposed of by this common order.

The Petitioners herein have challenged order dated 6th September 2010 passed by the Court of learned Principal Senior Civil Judge, Gandhinagar (for short, the trial court), having Camp at Kalol, below Exhibit 336 in Special Civil Suit No. 100 of 2001 whereby the trial court has recast issue No. 3 in the main suit. The Petitioners have also challenged order dated 6th September 2010 passed by the same Court passed below exhibit 176 in Special Civil Suit No. 49 of 2003 whereby the trial court has ordered to delete issue No. 2(3) in the suit.

The short facts leading to the filing of the present petitions are as under:

3.1 Respondents No. 1 and 2 instituted Special Civil Suit No. 100 of 2001 against the present Petitioners and other Respondents seeking a declaration that the registered sale deeds executed by Respondent No. 3 in favor of Petitioner No. 1 void and not binding to Respondents No. 1 and 2 as also that the registered sale deeds executed by Petitioner No. 1 in favour of Respondent No. 4 are void ab initio and not binding to Respondents No. 1 and 2.

3.2 Respondent No. 3, who happens to be the brother of Respondents No. 1 and 2 instituted Special Civil Suit No. 49 of 2003 in the Court of Civil Judge (Senior Division), Mehsana, having the Camp at Kalol, against the Petitioners and Respondent No. 4, seeking a declaration and permanent injunction to the effect that seven registered sale deeds dated 13th October 1999 executed by Respondent No. 3 in favour of Petitioner No. 1 were without consideration and hence void ab initio.

3.3 Subsequently, on a petition filed by Respondent No. 4, this Court ordered to consolidate both the aforesaid Civil Suits. Thereafter the Court of Principal Senior Civil Judge, Gandhinagar, having the Camp at Kalol, framed issues at Exhibit 330 in Special Civil Suit No. 100 of 2001 and at Exhibit 171 in Special Civil Suit No. 49 of 2003.

3.4 Respondents No. 1 and 3 moved an application at Exhibit 336 seeking incorporation of Issue No. 3 and to recast Issue No. 5, at Exhibit 330. The said application came to be partly allowed by adding Issue No. 3 at Exhibit 330 on the lines indicated by Respondents No. 1 and 2.

3.5 The Petitioners moved an application at Exhibit 173, seeking addition of issues referred to therein and another application being Exhibit 175 seeking recasting of the concerned issues at Exhibits 330 and 171. No orders were passed in these applications.

3.6 Respondent No. 3 moved an application at Exhibit172 in Special Civil Suit No. 49 of 2003, seeking to recast issues framed at Exhibit 171 on the lines indicated therein. In pursuance of the same issue No. 1(1) came to be added at Exhibit 171. Another order was passed by adding Issue No. 2(1) on the aspect as to whether the suit of Respondent No. 3 was barred by the period of limitation. Subsequently Issues No. 2(2) and 2(3) came to be added at Exhibit 171.

3.7 Respondent No. 3 moved an application at Exhibit 176 seeking deletion of issue No. 2(3), which was framed below Exhibit 171 on 21st July 2010. The trial court by order dated 6th September 2010 ordered to delete Issue No. 2(3).

Therefore in both these petitions the challenge is to the order passed below Exhibit 336 in Special Civil Suit No. 100 of 2001 and below Exhibit 176 in Special Civil Suit No. 49 of 2003. The Petitioners also prayed for a direction to hear and decide the applications at Exhibits 173 and 175 in Special Civil Suit No. 49 of 2003.

Learned Advocate for the Petitioners submitted that the impugned order runs counter to the proposition flowing from the provisions embodied in Order XIV of the Code of Civil Procedure, 1908 read with Sections 101, 102 and 103 of Indian Evidence Act, 1872.

5.1 He submitted that the Petitioners had objected to the framing of Issue No. 3 at its original form casting burden upon the Petitioners to prove that the sale deeds in their favor executed by Respondent No. 3 were legal and valid and the said issue was deleted and therefore subsequently the court ought not to have passed the order adding Issue No. 3. According to him Issue No. 2(3) was not required to be deleted as it is very relevant for deciding the suit.

5.2 He submitted that there exists materials on record to show that it is the contention of Respondents No. 1 and 2 to the effect that Respondent No. 3 was not having financial position to purchase huge land and therefore Issue No. 2(3) ought not to have been deleted.

5.3 He further submitted that though the Petitioners have filed two applications at Exhibits 173 and 175, the same were not decided and therefore this is a fit case to direct the trial court to decide the said applications.

Learned Advocate appearing for the Respondent submitted that the point whether Respondent No. 3 has purchased the property is not proposition of fact on which decision of the suit can be based.

6.1 According to him Section 4 of Benami Transactions (Prohibition) Act, 1986 does not permit cognizance of any defence based on the Benami Transaction and there is no dispute that property was purchased in the name of Respondents No. 1 and 2 and therefore the issue whether or not consideration has been paid from the funds of Respondent No. 3 is not relevant and necessary for the decision of the suit.

6.2 He submitted that if such issue is allowed to remain, it will be in violation of the provisions Benami Transactions (Prohibition) Act.

6.3 Learned Advocate for Respondent further submitted that the Respondents No. 1 and 2 were not parties to the execution of seven sale deeds dated 13.10.1999 and in fact names of Respondents No. 1 and 2 have been struck off from the sale deeds. He further submitted that the alleged release declaration does not carry signature of Respondents No. 1 and 2. He therefore submitted that in view of the above the trial court has rightly recast the issue.

I have heard the learned Counsel for the parties and also gone through the relevant provisions of law touching the controversy.

7.1 The Issue No. 3 sought in application Exh.336 is to the effect that:

Whether the Defendants No. 1 and 2 prove that the sale deeds dated 13.10.1999 executed by Defendant No. 3 are legal and genuine

7.2 The Issue No. 2(3) sought to be deleted in application Exhibit 176 reads as under:

Whether the Plaintiffs prove that they have purchased the property from their own funds or not

As regards issue No. 3, it is well settled law that for the purpose of framing issues the Court can always look at the contents of the documents as per Order 14, Rule 3 of CPC and also submissions made by the Advocate. Admittedly Respondents No. 1 and 2 were not parties to the execution of seven sale deeds dated 13th October 1999. In fact names of Respondents No. 1 and 2 have been struck off from the sale deeds. There is no mention of alleged release declaration in the seven sale deeds. The alleged release declaration is not registered.

8.1 It is also pointed out that the alleged release declaration does not carry signature of Respondents No. 1 and 2 and even the persons before whom it is purported to have been signed was not competent to attest the signature and was not in the service of the City Civil Court at the relevant time. It is under these circumstances that the trial court has recast the issue No. 3. In any case the issue as framed by the trial court will not in any case prejudice the case of the Petitioners.

8.2 From the record it is seen that Respondents No. 1 and 2 have filed Special Civil Suit No. 100 of 2001 praying for various reliefs including for setting aside 7 sale deeds dated 13th October 1999 executed by Respondent No. 3 in favour of the Petitioners and also for canceling the alleged Release Declaration dated 16th August 1999.

8.3 As per Order 14, Rule 2 of CPC, issues are to be framed on material proposition of law and facts of which parties are at variance and which are necessary for decision of the suit. It is required to be noted that the issues are not to be framed on each and every material proposition or point at variance, but are to be framed which are necessary for decision of the suit. So far as the present case is concerned, the point of variance whether Respondent No. 3 has purchased the property cannot be a proposition of fact on which decision of the suit can be based.

8.4 At this stage it is also required to be noted that Section 4 of Benami Transactions (Prohibition) Act, 1986 does not permit cognizance of any defence based on Benami Transaction i.e. consideration passing from third party and not from the person who purchased the property.

8.5 In the present case there is no dispute that the property was purchased in the name of the Respondents No. 1 and 2 and therefore the issue whether or not consideration has been paid from the funds of Respondent No. 3 is not relevant and necessary for the decision of the suit. It is wholly irrelevant whether the Respondent No. 3 has paid the sale consideration from his own funds or not. If that issue is allowed to remain, it would obviously mean that the trial court is taking cognizance of defence not permitted u/s 4 of the Benami transactions (Prohibition) Act, 1986.

8.6 I am therefore of the view that the said issue has rightly been deleted by the trial court. In any case, the Petitioners have not been able to show as to how the said fact is relevant for the decision of the suit or the deletion thereof would cause prejudice to the Petitioners.

I also do not find any merits in the contention of the Petitioners that once the parties are at variance, issues must be framed. This contention cannot stand in view of the provisions of Order 14 of Civil procedure Code. It may not be out of place to mention that in Special Civil Suit No. 49/2003 Respondent No. 3 has specifically pleaded, in response to Petitioners'' amendment application, that defence of the Petitioners is barred by provisions of Benami Transactions (Prohibitions) Act. In that view of the matter the Petitioners cannot raise any plea against the deletion of issue No. 2(3).

On Going through the impugned order and the reasons given by the learned trial Judge for deleting issue No. 2(3), I do not find that the said order suffers from any error of jurisdiction. It was within the jurisdiction of the learned trial Judge to frame an issue or to delete one framed. Order 14, Rule 5 (2) of the CPC expressly permits the Court to strike out an issue wrongly framed. If, in this light, the learned trial Judge has granted the Plaintiff''s application in question and deleted issue No. 4, the order in that behalf is not liable to be set aside or reversed by this Court in its limited jurisdiction under Article 227 of the Constitution of India.

In the premises aforesaid, I do not find any merits in the petitions. The same are therefore dismissed. Notice in each matter is discharged with no order as to costs. Ad interim relief stands vacated.