Important Point
By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discuses the evidence and no amount of evidence can be looked into on a plea never put forward.

Headnote:Constitution of India – Article 136 – Supreme Court does not interfere with each and every interim order passed by High Court like grant or refusal to grant stay, but, there may be occasions when it is called upon to step in, in its corrective jurisdiction – Such occasions would be rare – Merely because the Supreme Court passes an order of stay in the circumstances of a case deviating from what the High Court has done, it cannot be expected that the High Court will suddenly find merit in the matter pending before it and it will be guided by the interim order passed by this Court. (Paras 10 and 11)
       Code of Civil Procedure, 1098 – Section 115 r/w Order VI, rule 17 – Trial Court striking portions of written amendments and High Court refusing to stay the order – By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discusses the evidence – No amount of evidence can be looked into on a plea never put forward, so it is not necessary at this stage to shut out any evidence – In order to rule out any possibility of a truncated trial, the operation of the orders striking out portions of the written statement of defendants 11, 12 and 13 and portions of the affidavit tendered in chief-examination by the plaintiff directed to be stayed – Continuation of the trial of the suit also directed. (Paras 12 and 13)
       AIR 1930 PC 57 – Relied upon.
       Facts of the case :
       The suit out of which these appeals arise is one filed by Mrs. Charu Kishor Mehta, the appellant. The dispute relates to the administration of a trust named Lilavati Kirtilal Mehta Medical Trust governed by The Bombay Public Trust Act, 1950. The suit challenged a notice dated 27.4.2006 issued for convening a meeting of the trustees on 29.4.2006 to resolve certain disputes and sought a declaration that the resolution allegedly adopted by that meeting was illegal and void and other incidental reliefs. By an order of this Court dated 26.3.2007 in Civil Appeal No. 1575 of 2007, the suit was directed to be taken up and disposed of as expeditiously as possible and at least within a period of six months from that date. An interim arrangement was also made by that order.
       Defendant No. 11 in the suit is the husband of the plaintiff and defendants 12 and 13 are their children. They were impleaded by way of an amendment of the plaint. Defendant No. 11 filed a written statement supporting the case of the plaintiff. Defendants 12 and 13 filed a joint written statement. They also essentially supported the plaintiff. According to the contesting defendants, the written statements filed, sought to introduce averments not germane to the plaint and seeking to widen the scope of the controversy. They therefore filed an application seeking to have such pleadings in the two written statements struck out. Defendants 11 to 13 opposed that prayer. The trial court passed an order striking out paragraphs 4 to 31, 35 and 36 of the written statement of defendant No. 11 and paragraphs 4, 7, 11 and 12 from the joint written statement of defendants 12 and 13. Feeling aggrieved, defendants 11 to 13 filed W.P. No. 4407 of 2007 before the High Court challenging the said order. While the High Court issued notice on the Writ Petition returnable by 20.7.2007, it refused to stay the suit or the operation of the order dated 30.4.2007. It is this refusal to grant an interim order of stay that is impugned in SLP (C) No. 10954 of 2007.
       Findings of the Court :
       In order to rule out any possibility of a truncated trial, it is necessary to stay the operation of the orders striking out portions of the written statement of defendants 11, 12 and 13 and portions of the affidavit tendered in chief-examination by the plaintiff.

JUDGMENT

P.K. Balasubramanyan, J.—

1.Leave granted.

2.When the Petitions for Special Leave to Appeal challenging the orders of the High Court came up for admission, the contesting respondents appeared to oppose them. So, with the consent of parties and taking note of the limited issue that is before this Court, we are disposing of these matters finally here and now.

3.The suit out of which these appeals arise is one filed by Mrs. Charu Kishor Mehta, the appellant, in the two appeals arising out of Petitions for Special Leave to Appeal - CC Nos. 5818 and 5819 of 2007. The dispute relates to the administration of a trust named Lilavati Kirtilal Mehta Medical Trust governed by The Bombay Public Trust Act, 1950. The suit challenged a notice dated 27.4.2006 issued for convening a meeting of the trustees on 29.4.2006 to resolve certain disputes and sought a declaration that the resolution allegedly adopted by that meeting was illegal and void and other incidental reliefs. By an order of this Court dated 26.3.2007 in Civil Appeal No. 1575 of 2007, the suit was directed to be taken up and disposed of as expeditiously as possible and at least within a period of six months from that date. An interim arrangement was also made by that order. It is the common case that pursuant to the direction of this Court, the trial has commenced, the plaintiff examined in part, and her examination remains incomplete, to be continued later. As of now, a witness for the plaintiff is being examined. It is also submitted that as per the direction of this Court, the suit has to be disposed of before 26.9.2007.

4.Defendant No. 11 in the suit is the husband of the plaintiff and defendants 12 and 13 are their children. They were impleaded by way of an amendment of the plaint. Defendant No.11 filed a written statement supporting the case of the plaintiff. Defendants 12 and 13 filed a joint written statement. They also essentially supported the plaintiff. According to the contesting defendants, the written statements filed, sought to introduce averments not germane to the plaint and seeking to widen the scope of the controversy. They therefore filed an application seeking to have such pleadings in the two written statements struck out. Defendants 11 to 13 opposed that prayer. The trial court passed an order dated 30.4.2007 striking out paragraphs 4 to 31, 35 and 36 of the written statement of defendant No. 11 and paragraphs 4, 7, 11 and 12 from the joint written statement of defendants 12 and 13. Feeling aggrieved, defendants 11 to 13 filed W.P. No. 4407 of 2007 before the High Court purporting to invoke Article 227 of the Constitution of India, challenging the said order. While the High Court issued notice on the Writ Petition returnable by 20.7.2007, it refused to stay the suit or the operation of the order dated 30.4.2007. It is this refusal to grant an interim order of stay that is impugned in SLP (C) No. 10954 of 2007.

5.Meanwhile, the plaintiff filed an affidavit in lieu of her chief-examination in terms of Order XVIII Rule 4 of the Code. The contesting defendants filed an application for striking out that part of the evidence in the affidavit, which, according to them, travelled outside the pleadings in the plaint. The plaintiff filed an objection to that application. By order dated 13.6.2007, the trial court accepted the plea of the contesting defendants and struck out paragraphs 11, 21 to 25, 27 and 29 in the affidavit of examination-in-chief filed by the plaintiff. Feeling aggrieved by that order, the plaintiff filed W.P. No. 4698 of 2007 invoking Article 227 of the Constitution of India, challenging the order of the trial court. Though the High Court admitted the Writ Petition and issued notice returnable on 20.7.2007, it declined to grant a stay of trial of the suit or of the operation of the order dated 13.6.2007. Feeling aggrieved by the refusal of the High Court to grant an interim order pending disposal of the Writ Petition, the plaintiff has come up

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2007 Supreme(SC) 928

Important PointBy and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discuses the evidence and no amount of evidence can be looked into on a plea never put forward.

Cases Referred (1)

Important Point
By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discuses the evidence and no amount of evidence can be looked into on a plea never put forward.