The failure to frame issues and take evidence in a civil suit constitutes a significant procedural defect, warranting the setting aside of the decree.

JUDGMENT :

Jaspreet Singh, J.

1. Heard learned counsel for the petitioners, the learned standing counsel for the State-respondents and Shri P.V. Chaudhary, learned counsel, who had earlier put in appearance on caveat on behalf of the respondent No.3 and now has filed his Vakalatnama on behalf of the private-respondents No.5 and 6. Shri Vijay Bahadur Verma, learned counsel has also put in appearance on behalf of the private-respondent No.9 and has also filed his Vakalatnama, which is taken on record.

2. The basic contest is between the petitioners and the private-respondents No.3 to 9 herein, who were the plaintiffs in a suit filed by them before the Sub-Divisional Officer, Malihabad, Lucknow. The said suit was under Section 116 of the U.P. Revenue Code, 2006 (for short, 'Code, 2006') for division of land holding, which was filed on 20.07.2021. The present petitioners were the defendants No.2 to 4 in the said suit.

3. Upon the notices issued, the petitioners herein had filed their written statement, a copy has been placed on record as Annexure No.5, denying the allegations and apart from raising a technical issue that the plaint was not properly signed by the plaintiffs, yet a plea was taken that the plaintiffs are not in possession. Apart from this fact another plea was taken that some oral settlement had taken place earlier and in terms of the said settlement, the parties were in possession of their respective portions, hence, the instant suit could not proceed.

4. The submission of the learned counsel for the petitioners is that by means of the order dated 16.08.2022, the Sub-Divisional Officer, Malihabad, Lucknow has passed a preliminary decree allowing the suit without even framing the issues and taking evidence on record.

5. It is in this regard, this Court on 06.08.2024 had required Shri Chaudhary, learned counsel for the private-respondents to seek instructions.

6. It could not be disputed by Shri Chaudhary that in the suit before the Sub-Divisional Officer, Malihabad, Lucknow, neither any issues were framed nor any oral examination-in-chief of any of the witness was filed. However, his contention is that since the written statement did not take any cogent plea, hence, in absence of any real contest or defence even if no issues were framed, it will not cause any prejudice to the petitioners. For the aforesaid reasons, he submits that even if at all no evidence was led yet it will not impact the proceedings.

7. Having considered the aforesaid submissions and on a perusal of the material on record, the fact which is undisputed is that a suit was filed by the private-respondents for division of land holding under Section 116 of the Code, 2006 before the Sub-Divisional Officer, Malihabad, Lucknow.

8. Needless to say that the provisions of the Civil Procedure Code, 1908 (for short, 'CPC') is squarely applicable to the said proceedings under Section 116 of the Code, 2006 as per Section 214 of the Code, 2006.

9. Now, in case, if the contention of the learned counsel for the private-respondents is taken note of then on perusal of the written statement of the present petitioners, a copy of which has been brought on record as Annexure No.5, it would reveal that in Para-11 and 17(a), a plea was taken by the defendants regarding the plaintiffs not being in possession and that in view of the settlement which occurred earlier, the suit for partition was not maintainable.

10. Order XIV Rule 1 CPC clearly indicates how the issues are to be framed wherever there is a contest. The very fact which is stated in the plaint and traversed in the written statement gives rise to an issue. It may be an issue of fact or an issue of law. However, the fact remains that despite the plea in Para-11 and 17(a), admittedly, no issue was framed by the Court concerned. For the aforesaid reasons, no evidence admittedly was led by any of the parties. In such circumstances, it was apparently not justified on behalf of the Sub-Divisional Officer, Malihabad, Lucknow to h