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UNION OF INDIA THR. GENERAL MANAGER, N.R. BARODA HOUSE versus SMT. HARNANDI DEVI

High Court of Judicature at Allahabad

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Union Of India Thr. General Manager, N.R. Baroda House v. Smt. Harnandi Devi - CIVIL REVISION No. 413 of 2002 [2006] RD-AH 8175 (21 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED

Civil Revision No.413 of  2002

Union of  India    Vs.       Smt.  Harnandi Devi  

Connected with

Civil Revision No.427 of  2002

Union of  India    Vs.       Smt.  Harnandi Devi  

Hon'ble  Prakash Krishna, J.

These two revisions were heard together and are being disposed of by a common judgment. This is plaintiff's revision of  original suit No.52 of  1998 in which the opposite party is the defendant.  

The revision No.413 of 2002 is directed against the order dated 8th March, 1998 by which the trial court rejected the application No.68 C of  the plaintiff  to hear and decide question of  jurisdiction as a preliminary issue.

Civil Revision No.427 of 2002 is directed against the order of 3rd of  April, 1999 rejecting the application No.70 C of the plaintiff  whereby the court below has refused to frame two additional issues as proposed by the plaintiff.

Suit No.52 of  1998 giving rise to the present revision has been filed  on the pleas inter alia that the plaintiff Union of India is the owner in possession of new plot No.439, 440, 421, 422 and 417 in village Doyami Park, Tehsil Hapur, Distt. Ghaziabad;  the Northern Railway Moradabad Division was earlier known as East India Railway which was taken by the Union of India and thus the plaintiff acquired the title of the aforesaid plots; these plots were used  for Railway Lines Station, Staff Quarters and for other activities connected with the Railway; in the year 1996 the Naib Tehsildar, Hapur on the basis of auction  Sales Certificate of the 1946 by East India Railway mutated the name of  defendant;  the said mutation  order is void and illegal.  The relief of declaration that the defendant does not acquire any right, title or interest  over the property in dispute on the basis of  auction sale certificate dated 23rd of  1946 (the month has not been mentioned  in the copy of the plaint filed before this Court)  and for permanent injunction restraining the defendant, her agents, servants and relatives from interfering in the peaceful possession of the plaintiff over the disputed property, have been claimed.

The suit is being contested by the defendant on number of pleas including that the jurisdiction of Civil Court is barred in view of  section 331 of U.P. Z.A. and L.R. Act.  It has been pleaded that the plaintiff  has got raised her house since the last 13 years and the disputed property was sold by East India Railway Company by means of  auction dated 22/23 April, 1948 and it was never vested  in the present plaintiff.   The auction took place as the  Railway was not utilizing the said land  and for it, it was waste land which was declared as such on or before 1920 when the Railway got removed its lines  from the disputed land  and constructed new Railway Line which is still in operation.  

On the basis of the pleadings of the parties, the trial court framed eight issues out of them issue no.4 is to the effect that whether the present suit is not maintainable in view of Section 331 of U.P.Z.A. & L.R. Act.   The plaintiff by means of  application  68 C pressed that issue no.4 be decided as a preliminary issue.  The court below by means of  its order dt.8th March, 1999 which is under challenge in the present revision has held that it is not appropriate to decide aforesaid issue as a preliminary issue as it requires evidence.   The court was of the view that since the date for recording of evidence has already been fixed, the plaintiff may produce the same and the issue shall be decided thereafter.  Against this order the revision No.413 of  2002 has been filed.

Revision No.413 of  2002

Shri V.K. Goyal, learned counsel for the applicant, submitted that the court below was not justified in not deciding the aforesaid issue as a preliminary issue and postponing its decision only after recording of  evidence.  He submitted that if the aforesaid issue is decided against the present applicant it would immediately take the necessary legal steps before court of  competent jurisdiction.  In contra,  Shri Pankaj Mithal, submitted that the revision is not maintainable as it is against an interlocutory order.  Elaborating the argument it was submitted that the decision of the court below does not amount to  ''case decided' within meaning of  section 115 of the Code of  Civil Procedure.

Shri  V.K. Goyal also submitted that the plaintiff does not propose to  give any evidence on the aforesaid issue and since the said issue has been framed on the basis of   allegations made in the written statement , it is appropriate that the issue relating to jurisdiction should be decided first.  

There is dispute between the counsel for the parties on the question as to whether the evidence of the parties has been closed or is still to be recorded. Shri Pankaj Mithal submitted that evidence of plaintiff has already been closed vide order dt.1st of  Feb., 2000. The said order has been confirmed in revision by the High Court.  Undaunted by the failure of the revision, the plaintiff filed writ petition No.34370 of  2000 Union of India  Vs. Smt. Harnandi challenging the order dt. 1st of Feb.,2000 and the writ petition has been dismissed vide judgment and order dt. April, 13, 2005.  Reference in this connection was made to the contents of para 10 of the counter affidavit sworn by Shri R.K. Tyagi, filed along with the stay vacation application No.120206 of 2005. However, in reply Shri Goyal submitted that although that writ petition has been dismissed but the court has permitted the plaintiff to lead the evidence.  In the absence of the copies of  relevant orders and judgments referred to above , it is not possible  to say anything  further in the matter.  Be that as it may, it is for the trial court to take a decision in this regard.

Coming to the objection raised by Shri Pankaj Mithal that the revision is not maintainable as the court below has decided nothing and has just postponed the decision of  issue no.4 to a subsequent date, there is substance in his argument that such an order does not amount to  ''case decided' within meaning of   section 115 of C.P.C. 1908.

In the case of Baldev Das  Vs. Filmistan Distributors AIR  1970 S.C. 406 wherein Supreme Court has held that every order of the court in the course of suit does not amount to a case decided.  A case can be said to be decided if the court adjudicates same rights or obligations.  Every order in the suit cannot be regarded  as a case decided within the meaning of Section 115 C.P.C. Orders passed merely for the progress of proceedings are not orders deciding a case.  They are steps  towards the final adjudication of the case, and only regulate the procedure and do not affect any right or obligation of the parties.

In the case of M.L. Sethi Vs. R.P. Kapoor AIR 1970 S.C. 2379  it has been held that the jurisdiction of High Court under section  115 is a limited one. The section is not directed against conclusion of law or fact, in which question of jurisdiction is not involved.  

The section empowers the High Court to satisfy itself on these matters -    (a) the order of the subordinate court is within jurisdiction, (b) the case is one in which the court ought to exercise the jurisdiction (c) that in exercise of jurisdiction the court has not acted illegally, i.e. law, or with material irregularity by committing some error of procedure in the course of trial which is material that, it may have affected the ultimate decision.  And if the High Court is satisfied on these matters it has no jurisdiction to interfere because it differs with the subordinate court on question of fact or law.  A distinction has to be drawn between the errors committed by subordinate courts in deciding questions of law, which have relation to, or are concerned with question of jurisdiction of the said court, and errors of law which have no such relation or connection.

In view of above, the order under revision cannot be interfered with by this court.  However, it may be noted that during the course of argument Shri V.P. Goyal candidly stated at the Bar that the plaintiff does not want to give any evidence on issue no.4. The evidence of the parties have been closed, as per stand taken by Shri Pankaj Mithal, learned counsel for the opp.party.   It shall be open to the trial court to hear and decide issue no.4 as a preliminary issue and this order shall not come in its way, if an application for deciding the issue no.4 as a preliminary issue is filed before it by the plaintiff.

With the aforesaid observation the revision is dismissed with cost of Rs.1,000/-. The plaintiff has got the proceedings unnecessary stayed for a period of  about  7 years.  It filed the revision with delay and thereafter the application for condonation of delay was dismissed in default which was subsequently restored.  The case of the defendant is  that the present suit is a frivolous suit and the plaintiff wants to linger the hearing of the suit for one reason or the other.  Therefore, the plaintiff should  pay the cost of  revision assessed at Rs.1000/-.

Civil Revision No.427 of  2002

The trial court by the order dt.7th April, 1999 rejected the application  No.70 C of the plaintiff to frame the following two issues as additional issues:-

(1) Whether the land in suit was agricultural land?

(2) Whether the defendant has acquired any right in the      agricultural land?

The court below has refused to frame the aforesaid two proposed issues as additional issues on the ground that they do not arise from the pleadings of the parties.  The suit has been instituted for declaration, declaring that the proceedings for mutation are null and void and for permanent injunction.  The question as to whether the disputed property is an agricultural land or it is otherwise has no relevancy. There is no such allegation in the plaint nor the nature of land has been disputed by the defendant in the written statement.  Reliance placed by the plaintiff in this regard on para 12 of the plaint has been held by the trial court to be misplaced one.  The learned counsel for the plaintiff except making submission that it is duty of  court to frame proper issues could not make out a case that the nature of the land is in dispute between the parties.  It may be of  some relevance that the plaintiff in para 2 of the plaint has stated that in the year 1977-78 consolidation proceedings took place in the village new numbers were allotted in place of  old numbers to the disputed plot.

Order 14 of C.P.C. provides settlement of issues and determination of suit on issues of law or on issues agreed upon.  Rule 1 of Order 14 prescribes the framing of issues. Sub  Rule 2 of Order 14 Rule 1 says that material propositions are those propositions of law or fact which plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Further sub rule (3) says that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.  A bare reading of Order 14 Rule 1 and its various sub rules shows that in the absence of  allegation made by the plaintiff in the plaint with regard to the fact  to show a right to sue,  an issue would not arise.  In the present case, the trial court has found that the factual averment that the land in question is agricultural land has neither been stated in the plaint nor it has been said so in the written statement, the question of framing of  the aforesaid two  additional issues does not arise and  no fault can be found out in the order of the trial court.  The allegation of the defendant is that the plaintiff during the course of hearing did not seriously press the aforesaid framing of aforesaid two additional issues.  Apart from it, the proposed issues are neither necessary nor proper issues.  The issues  which have already been framed covered the entire gamut  of  dispute as per pleadings of the parties.  The issues were framed after due opportunities to the parties.

Strong reliance was placed  by the plaintiff on the judgment of  Punjab and Haryana High Court; Rajendra Tandon Vs. Thomas Nasir Masih 1999 (1) Civil Court Cases 702. It consists of only three paragraphs.   In paragraphs No.1 and 2 the respective case of the parties has been noted.  The paragraph 3 on which reliance was placed, is being reproduced:-

"It goes without saying that it is the duty of the Court to frame issues.  The same should be framed correctly taking note of the controversy that arises from the pleadings of the parties for the disposal of the suit. From the pleadings of the parties, it is abundantly clear that  it is in controversy whether the property was purchased  by the said defendant vide sale deed dated 22.12.93 and Sardar Masih had  executed a will dated 13.1.87. Once  it is so, merely because  the petitioner had on earlier occasions not claimed the additional  issue will not debar them from approaching  the Court for framing the additional issue. It is for the added reason that the evidence had not yet started in the trial Court."

No doubt it is duty of court to frame issues that arise from the pleadings of the parties for the disposal of the suit.  It necessarily follows that the factual averments which have not been pleaded cannot be subject matter of  an issue.  In my view the aforesaid judgment does not advance the case of the plaintiff.

There is no jurisdictional error in the order of the trial court.

In view of the above, there is no merit in the revision.  The revision is also dismissed with cost of  Rs.1000/-.

Both the revisions lack merit and dismissed with cost of  Rs.1000/- (in each revision).

Dt.21.04.2006

LBY


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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