The court reinforced that additional issues cannot be framed without pleadings, emphasizing the necessity of a solid basis for claim and limited scope for interference under Article 227.

ORDER :

Sujoy Paul, J.

This petition filed under Article 227 of the Constitution of India takes exception to the order dated 21-3-2023 whereby application preferred by the petitioner/defendant under Order XIV, Rule 5 of CPC was dismissed.

2. Briefly stated, the respondent/ plaintiff filed a suit for partition and mesne profit which was registered as RCS-27-A/2013. After completion of pleadings, the Court below framed issues on 10-12-2012. The defendant then filed an application under Order 7, Rule 11 of CPC for rejection of plaint which was decided by the Court below on 7-2-2020 (Annexure P/6). Thereafter, petitioners/defendants filed an application under Order XIV, Rule 5 of CPC (annexure P/7) on 24-11-2022 and prayed for framing of two issues - (i) Whether plaintiff has properly valued his suit. (ii) Whether, suit filed by plaintiff is barred by pecuniary jurisdiction.

3. Shri Sanjay Agrawal, learned Senior Advocate submits that the Court below has rejected the said application solely on the ground that there is no pleading/ foundation in this regard in the written statement. The additional issues so proposed by application dated 24-11-2022 are purely legal in nature and therefore, whether or not said ground is taken in the pleadings of written statement, the Court below is bound to consider the same in the light of judgment of Gwalior Bench reported in 1986 M.P.L.J. 597, Dilipsingh Nathusingh vs. Malam Singh Dilip Singh . The Court below has erred in disallowing the said application.

4. Shri S. K. Jain, learned counsel for the respondent supported the order and submits that the issues are framed on the basis of rival pleadings and in absence of any pleading in the written statement, the Court below has not committed any error in rejecting the said application. The evidence of plaintiff has begun and at this belated stage, the Court below has rightly disallowed the said application.

5. The parties confined their arguments to the extent indicated hereinabove and also informed that application filed by petitioner under Order VII, Rule 11 of CPC was also dismissed by the Court below.

6. I have heard the parties at length and perused the record.

7. Before dealing with the rival contentions, it is apposite to consider Order XIV, Rule 1 CPC, which reads as under :—

“Issue arise when a material proposition of fact or law is affirmed by the one party and denied by the other.”

8. The core issue is whether the Court below was justified in holding that in absence of rival pleadings, no additional issues are required to be framed. This point is no more res integra. The Privy Council wayback in AIR (37) 1950 Privy Council 68, Kanda and Ors. vs. Waghu opined as under :—

“11. …..In Eshenchunder Singh vs. Shamachurn Bhutto, 11 M.I.A 7 at p.20:(16 W.R. 57(P.C)) Lord Westbury described it as an absolute necessity that the determinations in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made. The course decided upon by the learned District Judge offended against this principle and their Lordships consider that he was rightly overruled.”

(Emphasis supplied)

9. The Apex Court has drawn curtains on this aspect in the case of Kalyan Singh Chouhan vs. C. P. Joshi , AIR 2011 SC 1127 it was poignantly held as under :—

“Therefore, it is neither desirable nor required for the Court to frame an issue not arising on the pleadings. The Court should not decide a suit on a matter/point on which no issue has been framed (Vide : Raja Bommadevara Venkata Narasimha Naidu and Anr. vs. Raja Bommadevara Bhashya Karlu Naidu and Ors., (1902) 29 Ind App 76 (PC); Sita Ram vs. Radha Bai and Ors., AIR 19