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Sri Ram Vs. Ram Swaroop and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 137 of 1976
Judge
Reported in1976WLN(UC)436
AppellantSri Ram
RespondentRam Swaroop and anr.
DispositionApplication allowed
Cases Referred and Bhaskar Macilal and Ors. v. Narandas Chimlal Soni and Anr.
Excerpt:
.....for deleting irrelevant issue--no substantial progress in suit--delay in application for deleting issue is nut material.;(c) civil procedure code - section 115 & order 14 rule 5--court refusing to strike out irrelevant issue--held, it is material irregularity & revision lies.;the trial court has acted with material irregularity refusing to strike down issue no. 1 on the application of the plaintiff under order 14 rule 5 cpc and the order in the present case deserves to be interfered with by this court. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years..........his defence. at the present suit of the plaintiff only relates to the southern wail of his house and the land lying on the southern side of his house, the existence of properties whish have been enumerated in the plaint, only to describe the boundaries of the plaintiff's house, do not give rise to any material proposition of fact, as any dispute in react thereof is not required to be resolved in the present suit. if any unnecessary statement has been made in the pleadings, which has no material baring on the questions to be decided for the purposes of giving relief of refusing relief to the plaintiff, then they need not be made subject matter to issues under order 14 rule 1 cpc. la my view, it ii wholly unnecessary for the decision of the present suit or for the determination of.....
Judgment:

D.P. Gupta, J.

1. In this revision application notice was issued to the opposite parties and Mr. Goyal appears on behalf of the defendant-opposite parties Nos. 1 and 2.

2. I have heard both the learned counsel.

3. The trial Court had framed issue No. 1 as to whether the 'gall' lying towards the east of the plaintiff's house and the vacant plot of land lying towards the west of the plaintiff's house belonged to the plaintiff. The plaintiff submitted an application under Order 14 Rule 5 CPC praying that issue No. 1 was unnecessary and should be deleted. The trial Court by/its order dated November 10. 1975, however, disused the application of the plaintiff The present revision application has been directed egaipst that part of the order of the trial Court dated November 10, 1975 by which the application of the plaintiff dated February 11, 1974 has been rejected and issue No. 1 has been maintained. Certified copies of the plaint and the written statement have been placed on record by the earned Counsel for the applicant. From a perusal of the plaint it appears that although the plaintiff has mentioned the boundaries of the home in question, manly that towards the east there is a land belonging to the plaintiff and towards the west there is a plot of the plaintiff, but the dispute in the suit relates to the southern wall of the plaintiff's house and 1' 9' land on the southern side of the plaintiff's ho use. The relief claimed in the suit also relates to the southern wall of the plaintiffs house. Thus neither the 'gali' to yards the east of the plaintiff's house nor the plot of the land towards the west thereof are subject matter of dispute in the suit. In the written statement, the defendant has denied that the 'gali' towards the east bloused to the plaintiff and be has claimed that the same was owned by him. It was on that bash probably that issue No. 1 was framed. However, under Order 14 Rule 1 CPC issues should be confined to material propositions of fact or law which are affirmed by one party and dialed by the other. Those propositions of fact or law are material propositions, for the purposes of Order 14 Rule 1 CPC, which a plaintiff must allege in order to show his right to suit and the defendant must allege in order to constitute his defence. At the present suit of the plaintiff only relates to the southern wail of his house and the land lying on the southern side of his house, the existence of properties whish have been enumerated in the plaint, only to describe the boundaries of the plaintiff's house, do not give rise to any material proposition of fact, as any dispute in react thereof is not required to be resolved in the present suit. If any unnecessary statement has been made in the pleadings, which has no material baring on the questions to be decided for the purposes of giving relief of refusing relief to the plaintiff, then they need not be made subject matter to issues under Order 14 Rule 1 CPC. la my view, it ii wholly unnecessary for the decision of the present suit or for the determination of the relief prayed for in the suit or for the denial of such relief that toe Court should enter into such questions as to whether the 'gali' towards the east and the plot of land to wards the west of the plaintiff's house belonged to the plaintiff or they belonged to somebody else. Toe trial Court only considered the fact that there is an averment in the plaint and a denial thereof in the written state orient without further considering the question the to whether such averment raised material questions which are required to be determined in the suit. Having considered the pleadings of the parties, I am definitely of the view that issue No. 1 which has been framed in the suit is wholly unnecessary as it relates to a controversy, which does not constitute material proposition of fact required to be determined in the suit. In my opinion, issue No. 1, therefore should not have been framed in the suit.

4. Mr. Goyal, earned Counsel for the opposite parties submitted that the application for deletion of issue No. 1 was submitted by the plaintiff after several adjournments and as such the prayer should not have been considered. 1 find that no substantial progress was made in the suit and mere delay in filing the application in such circumstances is not material.

5. Then it was urged by Mr. Goyal that (his Court should not interfere in its revisions) jurisdiction with the order passed by the trial court & reliance was placed Gopi Chand v. The Chief Secretary, Government of Rajasthan ILR (1962) 2 Rajasthan 83 and Bhaskar Macilal and Ors. v. Narandas Chimlal Soni and Anr. AIR 1966 Bombay 608. 1 do not think that a proposition as broadly argued by Mr. Goya) has been laid in any of the two decisions en which reliance has been pleased by him. Even in Bhaskar Manilal's case it was held that where in exercising the discretionary rower the trial Court acts unreasonably the High Court undoubtedly can and must interfere. In my opinion, the trial Court has acted with material irregularity defusing to strike down issue No. 1 on the application of the plaintiff under Order 14 Rule 5 CPC and the order in the present case deserves to to interfered with by this Court.

6. The revision application is accordingly allowed. The order passed by the trial Court dated November 10, 1975 so far as it relates to issue No. 1 is set aside and issue No. 1 as framed in the suit is ordered to be deleted.


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