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HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
Mr. Justice Narendra Singh Dhaddha, J
MANOJ DUBEY S/O LATE SHRI AWDESH CHAND – Appellant
Versus
SMT. NIRMALA DUBEY W/O LATE SHRI ANAND SWAROOP DUBEY – Respondent
CW / 3531 / 2020
Order :
1. This Civil Writ Petition has been filed by the petitioner-defendant No.5 (for short 'the defendant No.5') against the order dated 27.01.2020 passed by Additional District & Sessions Judge No.7, Jaipur Metropolitan in Civil Suit No.19/2013, whereby application under Order 14 Rule 5 read with Section 151 CPC filed by the defendant No.5 has been partly dismissed.
2. Learned counsel for the defendant No.5 submits that respondent Nos.1 to 4-plaintiffs (for short 'the plaintiffs') filed a suit against the defendants for partition in which defendant No.5 filed an application under Order 14 Rule 5 read with Section 151 CPC for framing of the additional issues but trial court vide order dated 27.01.2020 partly dismissed the application filed by the defendant No.5.
3. Learned counsel for the defendant No.5 also submits that trial court had committed error in not framing the additional issues regarding valuation, cancellation of Will and specific relief. So, order dated 27.01.2020 passed by the trial court be set aside and trial court be directed to frame the additional issues as per application filed by the defendant No.5.
4. I have considered the arguments advanced by learned counsel for the defendant No.5 and perused the impugned order.
5. A perusal of order dated 27.01.2020 passed by the trial court reveals that trial court while partly dismissed the application filed by the defendant No.5. So, in my considered opinion, trial court had framed the additional issues which were necessary for adjudication of the suit. So, the present petition being devoid of merit, is liable to be dismissed, which stands dismissed accordingly.
6. Pending application(s), if any, stand(s) dismissed.
The court upheld the trial court's decision to partly dismiss the application for additional issues, finding it necessary for the adjudication of the partition suit.
The trial Court has discretion in framing issues and did not err in dismissing the defendants' application as the proposed issues were already incorporated.
The Court's decision emphasized the importance of considering the maintainability of a suit in light of the properties owned by the deceased that were excluded from the partition suit.
In partition suits, additional issues may be rejected if existing issues sufficiently address the involvement of the parties and the matter at hand.
The main legal point established is that objections raised at the final arguments, which were not raised in the written submission or framed as issues, cannot be used to non-suit the plaintiffs.
The court upheld the dismissal of a writ petition against a trial court's order, finding no error in refusing to frame additional issues post-evidence completion.
Amendments to correct typographical errors in pleadings should be allowed as they do not affect the substance of the case.
The court determined that a specific prayer for cancellation in a suit justifies the removal of maintainability issues incorrectly framed by the Trial Court.
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