The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1354 OF 2023 …. Dhaneswari Mishra Petitioner Mr. Anupam Dash, Advocate Narayan Debata …. Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 11.12.2023 1. 1. This matter is taken up through hybrid mode. 2. Order dated 16th September, 2023 (Annexure-7) passed by learned Senior Civil Judge, Rourkela in C.S. No. 10 of 2019 is under challenge in this CMP, whereby an application filed by
Legal Reasoning
the Defendant-Petitioner under Order XIV Rule 5 C.P.C. to frame an additional issue with regard to limitation and non- joinder of necessary party, has been rejected. 3.
Legal Reasoning
It is submitted by Mr. Dash, learned counsel for the Petitioner that the Opposite Party has filed the suit for the following relief: (i) Let a decree be passed directing the defendant to perform her part of agreement dated-01.09.1998 by filing proper/prescribed application before the RDA, Rourkela and thereafter physically appear before it (RDA, Rourkela) as and when require for re- allotment/transfer of the plot No-S2M-130 at Chhend Housing Project, Stage-II, Phase-II, site & service section at Gopabandhu Nagar, Rourkela in favour of the plaintiff and to execute a registered deed of sale of the suit house in favour of the plaintiff. (ii) Cost of the suit. (iii) Any other or further relief/reliefs to which the plaintiff is entitled under law and equity may also be passed. Page 1 of 8 // 2 // 4. The Defendant-Petitioner filed written statement refuting the claim in the plaint. It is also specifically stated at Paragraphs-2 and 21 of the written statement that the suit is barred by limitation and is not maintainable for non-joinder of necessary party. After closure of the evidence, when the suit was posted for argument, the Defendant-Petitioner filed an application to frame additional issue with regard to limitation as well as non-joinder of necessary party, which was rejected vide impugned order under Annexure-7. Hence, this CMP has been filed. 5. It is further submitted by Mr. Dash, learned counsel that learned trial Court made an attempt to explain that the sweeping issue with regard to maintainability of the suit covers the issue of limitation as well as non-joinder of necessary party. Learned trial Court also erroneously held that the Defendant-Petitioner has not stated as to who should have been impleaded as proper parties to the suit. It was also held that petition was filed at a belated stage without raising any objection with regard to framing of issues at the appropriate stage. It is his submission that the sweeping issue with regard to maintainability of the suit does not specifically cover the issue of limitation as well as non- joinder of necessary party. Further, it is the duty of the Court to frame the issue on facts and law that has been affirmed by one party and denied by other. In support of his submission, he relied upon the decision in the case of Makhan Lal Bangal –v- Manas Bhunia and others, reported in AIR 2001 SC 490, wherein it is held as under: Page 2 of 8 // 3 // “17. With the inevitable remand in the terms as above said, the exercise of appellate jurisdiction of ours under Section 116-A of the RPA comes to an end. There are a few aspects of the case which have caused us concern and before parting with the case we would like to place on record our views in that regard. The manner in which the election petition has been tried defeats the very purpose of entrusting jurisdiction to try an election petition to the High Court by Representation of People (Amendment) Act, 1966. Out of several, we propose to deal with only two aspects: (i) framing of issues, and (ii) recording of evidence. 18. In para 11, sub-paras (a) to (q) (in all 17 sub- paragraphs) of the election petition there are about 11 corrupt practices, all of serious nature, alleged by the petitioner. On all these corrupt practices, one sweeping issue was framed — Issue 2, reproduced in the earlier part of this judgment. So is the case with regard to the incidents alleged in sub-paras (i) to (xii) of para 27 of the election petition whereon the petitioner sought to build up a case of corrupt practice having been committed by the appellant by obtaining or procuring or abetting or attempting to obtain or procure the services from the gazetted officers and persons in the service of the Government in committing corrupt practice by improper reception of invalid votes and, refusal or rejection of valid votes materially affecting the result of election. As regards various instances of corrupt practices as alleged in these sub-paragraphs also an omnibus Issue 3, has been framed. 19. An election petition is like a civil trial. The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the the area of conflict is determined, Page 3 of 8 // 4 // the and plaint/petition real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided.” 6. It is his further submission that there is no legal bar to frame an additional issue even at the stage of argument. In support of his contention, he relied upon the decision in the case Page 4 of 8 // 5 // of Kishorelal Gupta –v- Devilal Kalwar @ Gowalla, reported in AIR 1971 Orissa 191, wherein it is held as under: “5. Thus it is clear that the duty to frame issues is put on the court and power inheres in the court to amend existing issues or frame additional issues on such terms as the court thinks fit. In exercise of this power, the court while the arguments had begun, framed an additional issue and thought it fit to allow parties to lead evidence on the additional issue as it was necessary in for determining controversy. The jurisdiction exercised by the court is in terms of Rule 5(1) of Order 14 of the Code.” the matter He, therefore, submits that learned trial Court has committed an error of law in rejecting the petition under Order XIV Rule 5 C.P.C. It is also submitted that in order to avoid multiplicity of litigation and to rule out a possibility of remand of the matter to learned trial Court to frame an additional issue on limitation as well as non-joinder of necessary party, learned trial Court should have allowed the petition and framed additional issues. He, therefore, prays for setting aside the impugned order under Annexure-7 and to direct learned trial Court to frame specific additional issue on limitation as well as non-joinder of necessary party. 7. Heard Mr. Dash, learned counsel for the Petitioner and perused the materials on record as well as the case law cited. 8. Basing upon the pleadings of the parties, learned trial Court on 15th September, 2021 (Annexure-4) framed the following issues: “ 1. Whether the plaintiff has got cause of action to file the suit? 2. Whether the suit is maintainable? 3. Whether the defendant has executed one agreement for sub-lease of suit house in favour of the Page 5 of 8 // 6 // plaintiff and in pursuance of that agreement the defendant has received cash of Rs.1,15,000/- on 01.09.1998? 4. Whether the defendant has executed one general power of attorney in favour of plaintiff for doing all sorts of construction work, demolition and re- construction of work over the suit land? 5. part of agreement on dated 01.09.1998? Whether the plaintiff is agreed to perform the 6. To what other relief the plaintiff is entitled ? 9. Admittedly, the Defendant-Petitioner did not raise any objection with regard to framing of issues at that stage. On the other hand, the Defendant-Petitioner participated in the trial of the suit. After closure of the evidence from both the sides, an application under Order XIV Rule 5 C.P.C. has been filed for framing of additional issue on the question of limitation as well as non-joinder of necessary party. It is submitted that the Defendant-Petitioner at Paragraphs-2 and 21 of the written statement has made specific averments with regard to limitation and non-joinder of necessary party. 10. For better appreciation, Paragraphs-2 and 21 of the written statement filed by the Defendant-Petitioner are quoted hereunder for adjudication. “(2) That, the suit is unfounded on fact, devoid of merit, actuated with mala fide intention, hit under the provisions of Specific Relief Act and also barred by law of limitation. xxx xxx xxx (21) That, there is absolutely no cause of action for the present suit, barred by law of limitation and non- joinder of necessary parties; hence the suit may be dismissed with the exemplary cost imposed on the Plaintiff”. Page 6 of 8 // 7 // 11. The question of limitation is a mixed question of fact and law. However, Mr. Dash, learned counsel for the Petitioner submits that the Plaintiff in the present suit prayed for a direction to the Defendant to perform her part of agreement dated 1st September, 1998. The suit has been filed in the year, 2019. It is, therefore, submitted that the suit is clearly barred by limitation as it was not filed within three years from the date of execution of the so called agreement. Section 3 of the Limitation Act, 1963 reads as under: “3. Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.” 12. Even if a defence with regard to limitation is not taken, it is the duty of the Court to ascertain as to whether the suit is barred by limitation or not. Admittedly, no specific averment is made as to how the suit is barred by limitation. Be that as it may, learned trial Court while adjudicating the petition has specifically stated that Issue No.2, i.e. ‘whether the suit is maintainable’, covers both limitation as well as non-joinder of necessary party. Thus, it appears that learned trial Court is conscious of the fact that the Court has to adjudicate as to whether the suit is barred by limitation. 13. Although at Paragraph-21 of the written statement, it is stated that the suit is bad for non-joinder of necessary party, but the Petitioner has not stated as to who are the necessary or proper parties not impleaded. Evasive statements with regard to limitation as well as non-joinder of necessary party have been Page 7 of 8 // 8 // made in the written statement. As held by the Hon’ble Supreme Court in the case of Makhan Lal Bangal (supra), if an affirmation on facts or law made by a party is denied by the other, the Court has a duty to frame an issue to that effect. It is also held therein that the parties are bound to assist the Court in the process of framing of issues. Admittedly, no such assistance was rendered by the Petitioner in the process of framing of issues. In the instant case, evasive statements with regard to limitation as well as non-joinder of necessary have been made. Parties being aware of the pleadings and issue framed, have adduced evidence in the matter and the suit is posted for argument. At that stage, an application under Order XIV Rule 5 C.P.C. was filed without explaining as to what prevented the Defendant-Petitioner to raise objection with regard to framing of issues, as aforesaid. 14. In that view of the matter, when the Court has already framed issue with regard to maintainability of the suit and has held that the same will cover the objection with regard to limitation as well as non-joinder of necessary party, this Court feels that learned trial Court has committed no error in rejecting the petition under Order XIV Rule 5 C.P.C. 15. As such, I find no infirmity in the impugned order under Annexure-7. Hence, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 15-Dec-2023 11:03:51 bks (K.R. Mohapatra) Judge Page 8 of 8