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Mahmoed Sharif Kasamji Rangawala Vs. Amibai Allabux Rangawala and anr. - Court Judgment

LegalCrystal Citation
SubjectContract;Civil
CourtGujarat High Court
Decided On
Judge
Reported inAIR1984Guj90; (1983)2GLR1481
ActsCode of Civil Procedure (CPC), 1968 - Order 6, Rule 2; Specific Relief Act, 1963 - Sections 6
AppellantMahmoed Sharif Kasamji Rangawala
RespondentAmibai Allabux Rangawala and anr.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate B.R. Shah, Adv.
Cases ReferredUdhay Singh v. Madbav Rao Scindia
Excerpt:
contract - possession - order 6 rule 2 of code of civil procedure, 1908 and section 6 of specific relief act, 1963 - whether present suit be treated as suit under section 6 - suit of plaintiff covered under section 6 as based on previous possession of plaintiff and not suit based on title - incidental averments regarding ownership of property not to change nature of suit - issue pertaining to ownership of suit property beyond scope of suit rightly deleted by trial court - held, present suit covered under section 6. - - 5. in the light of the aforesaid well-settled principle of construction of pleadings, the plaint in the instant cast will have, to be read. the petitioner-defendant can very well agitate the same in 2% proper forum at a proper stage......the application appears to be that the suit of the plaintiffs was under the provisions of sec, 6. specific relief act, and it was based on previous possession of the plaintiffs and that it was not a suit based on title. therefore the contentions raised by the other side based on title and on certain other grounds would be beyond the scope of the suit and hence the issues were required to be deleted and certain other issues were required to be framed. the application exh. 126 was opposed by the other side inter alia on the ground that it was lacking in bona fides and it was actuated by mala fides and that it was with a view to cause delay in the proceedings and once an earlier application was dismissed, the second application could not have been filed and when there can pleadings on.....
Judgment:
ORDER

1. How to construe the pleadings Can averment$ made by a party in the pleadings be dissected, segregated and then read out of context? Or, should the pleadings be read as a whole to ascertain the true import of the same? Now to gather the intention of the party making certain averments in the pleadings is, in substance, the main question which has arisen in this revision application.

2. The opponent-original plaintiffs filed Civil Suit No. 3697 of 1978 on 12-10-1978 In City Civil Court,. Ahmedabad, and prayed for possession of the, suit property situated in Astodia area of Ahmedabad City and for injunction to the effect that the defendant be restrained from interfering with their possession. According to the plaintiffs the suit was based on possession and not on title. The petitioner-defendant appeared in the suit and filed his written statement and thereafter as many as nine issues wore framed by the trial Court on 21-8-1980. One of the issues, i. e., issue 5 was as follows:

'Whether plaintiff 2 proves that he was in actual possession of the premises alleged to be dispossessed on 15-7-1978?'

The plaintiffs submitted an application Exhibit 105 on 5-9-1980 and prayed that certain issues be deleted. That application was rejected. Against that order of rejection the plaintiffs preferred Civil Revision Application No. 265 of 1981 in the High Court. Pending that civil revision application an-other application preferred by the plaintiffs to delete the relief regarding injunction was granted by the trial Court. In Civil Revision Application No. 265 of 1981 th1s. Court (Coram: R. C. Mankad. J.) passed the following order on 8-3-1982:

'Mr. M. D. Pandya, learned Counsel fat the petitioners-plaintiffs, states that the plaintiff's application for amendment of the plaint, whereby they sought to delete, incidental relief for injunction has been granted by the trial Court. In view of the, amendment of the plaint it is academic to decide whether or not the learned trial Judge, has effect in rejecting the plaintiffs' application for amendment of the issues. In view of the amendment of the plaint, it would be open to the plaintiffs to make a fresh application for amendment of the issues. The impugned order on the basis of unamended plaint is of no consequence and if and when the plaintiffs make fresh application for amendment of the issues, the trial Court shall decide it on merits uninfluenced by the view taken in the impugned order.

In view of what is observed above, this revision application does not survive. It shall, therefore, stand rejected with no order as to costs.

Rule discharged. Ad interim relief vacated.'

Thereafter on 20-1-1983, the plaintiffs filed another application, Exh. 126, in the suit for deletion of certain issues and for framing certain other issues. The basis of the application appears to be that the suit of the plaintiffs was under the provisions of Sec, 6. Specific Relief Act, and it was based on previous possession of the plaintiffs and that it was not a suit based on title. Therefore the contentions raised by the other side based on title and on certain other grounds would be beyond the scope of the suit and hence the issues were required to be deleted and certain other issues were required to be framed. The application Exh. 126 was opposed by the other side inter alia on the ground that it was lacking in bona fides and it was actuated by mala fides and that it was with a view to cause delay in the proceedings and once an earlier application was dismissed, the second application could not have been filed and when there can pleadings on record of the case, the issues framed by the Court should not be disturbed and the prayer that the counter-claim pleaded by the defendant in the written statement be deleted cannot be granted. The trial Court after looking at the pleadings and after hearing the parties came to the conclusion that the suit was essentially under the provisions of Section 6, Specific Relief Act, and was based on previous possession of the plaintiffs. Incidental averments with regard to the ownership of the property in question would not change the nature of the suit. Therefore the trial Court held that the issues which pertained to the ownership of the suit property in question were beyond the scope of the suit and were not required to be decided and hence were ordered to be deleted. The trial, Court also came to' the conclusion that since the suit was under Section 6, Specific Relief Act, and since it was based on the previous possession of the plaintiffs, the counter-claim by which the defendant wishes to raise the plea with regard to his owner ship cannot be entertained in this suit. The trial Court also came to the conclusion that the issue with regard to the bar of multifariousness and with regard to the nonjoinder of parties was also not necessary In view of its finding that the suit was essentially under the provisions of Section 6. Specific Relief Act. Hence the trial Court passed the following order on 24-1-1993:

'Issues 1 to 4 and 6 to 8 axe ordered to be deleted, the counter-claim of the defendant vide Exh. 15 is ordered to be excluded and following two issues are framed in addition to issues 5 and 9 in issues Exh. It. The issues are now renumbered as the two issues, viz. (1) Whether the plaintiff is dispossessed from the rear portion of the second floor as stated in the plaint, and (2) Whether the suit is filed within the period of six months from the date of dispossession are numbered as issues 1 and 2 and the original issues 5 and 9 are numbered as issues 3 and 4. The plaintiff's application is allowed with no order as to costs. Issues be amended accordingly.'

It is this order which has been challenged by the petitioner-original defendant in the present revision application.

3. The counsel for the petitioner contended that the plaint as it reads cannot be said to be a plaint under Section 6, Specific Relief Act. According to him, the, suit originally filed was a suit based on title since there were averments of title in the plaint and there was prayer for injunction. Hence he contended that, the trial Court has committed a material illegality in reading the plaint as a plaint under Section 6, Specific Relief Act.

4. It is not permissible to construe the pleadings as suggested by the counsel for the petitioner. The pleadings cannot be compartmentalized, dissected, segregated and then read. The correct method of reading the pleadings is that the pleadings have got to be read as a whole to ascertain their true import. It is not permissible to cull out a sentence or a passage and to read it out of context in isolation. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleading taken as a whole. In this connection reference may be made to the decision of the Supreme Court in the case of Udhay Singh v. Madbav Rao Scindia, reported in AIR 1976 SC 744, wherein the aforesaid principles have been laid down.

5. In the light of the aforesaid well-settled principle of construction of pleadings, the plaint in the instant cast will have, to be read. In the instant case a copy of the plaint was shown to me and certain averments pertaining to the ownership of the suit property made by the plaintiffs in the plaint were pointed out to me and on the basis thereof it was contended that the suit is based on title. While describing the background of the dispute betw4cen the parties certain statements regarding ownership of the property have been made, but they are mere incidental and ownership is not the basis of the suit and no relief is claimed on the basis of ownership of the property. On the other hand, on reading paras 3, 4 and 11 of the plaint, it becomes clear that the suit in substance is based on possession and it is under Section 6, Specific Relief Act. The, contention is that the relief of injunction was prayed for and therefore the suit should be treated as a suit under Section 9, C. P. C., and not a suit under Section 6, Specific Relief Act. This contention is required to be noted for the purpose of being rejected simply for the reason that in the plaint as it stands today, there is no prayer for relief of injunction. The prayer for deletion of relief regarding injunction has already been granted by the trial Court by its order passed below Exh. 114. Moreover it is always within the right of the party to delete a particular prayer and there is no challenge to the order passed by the Court by which the Court granted prayer regarding deletion of relief regarding injunction and that order passed by the trial Court has become final.

6. The counsel for the petitioner further contended that by ordering to delete the issues And framing new issues, the trial Court has committed a serious procedural error inasmuch as the trial Court has prima facie decided the issues against the defendant. According to the counsel for the Petitioner the issues pertained to the claim of ownership and counter-claims pleaded by the defendant, by ordering to delete these issues the trial Court has prima facie decided the issues against the petitioner-defendant. There is no substance in this contention also. Once it is decided by the trial Court that the suit is under Section 6, Specific Relief Act, the scope of the suit becomes very limited. The Court will have to decide the question regarding possession and will have to decide as to who was in possession of the suit property within six months immediately preceding the date of filing of the suit. The section itself makes it clear that the question of title and other issues are not to be lone/ into by the Court when the suit is under Section 6, Specific Relief Act. By deleting the issues the trial Court has not decided the Issues. What has been done by the trial Court is only to the effect that within the limited scope of the suit, this much can only be decided by the Court and if other questions are sought to be agitated by the petitioner-defendant and if they are available to him. the petitioner-defendant can very well agitate the same in 2% proper forum at a proper stage. The argument that the trial Court has prima facie; decided these issues has no basis whatsoever and hence the argument that there is a procedural irregularity has no merit whatsoever. On the contrary, it would have been otherwise, had the trial Court retained these very issues after con-ting to the conclusion that the suit was under Section 6, Specific Relief Act. Only, the questions which fell within the purview 'of Section 6, Specific Relief Act could be decided in such a suit. Therefore an issue 1which did not fall within the scope of S. 6 Specific Relief Act, though raised by the trial Court earlier, was required to be deleted. In this view of the matter there is no illegality or material irregularity committed by the trial Court and no jurisdictional error is pointed out and hence this revision application fails and is rejected, Rule discharged with no order as to costs. in the facts and circumstances of the case, it is directed that the trial Court shall dispose of the, suit as expeditiously as possible.

7. Application rejected.


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