[2026:RJ-JD:18128]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5412/2021 Padam Singh Sankhla S/o Shri Amar Singh Sankhla, Aged About

77 Years, B/c Sankhla, R/o C-E-53, High Court Colony, Jodhpur.

----Petitioner Versus

1. Ramesh Chandra S/o Shri Mohan Lal Bhatt, B/c Brahman, R/o Bhatton Ka Bass, Brahampuri, District Jodhpur.

2. Suresh Chandra S/o Shri Mohan Lal Bhatt, B/c Brahman, R/o Bhatton Ka Bass, Brahampuri, District Jodhpur.

3. Smt. Radha Rani D/o Shri Mohan Lal Bhatt, B/c Brahman, R/o Bhatton Ka Bass, Brahampuri, District Jodhpur.

4. Pankaj Bhatt S/o Shri Ramesh Chandra Bhatt, B/c Brahman, R/o Bhatton Ka Bass, Brahampuri, District Jodhpur.

----Respondents For Petitioner(s) : Mr. Abhinav Jain.

For Respondent(s) : Mr. Himanshu Bumb.

HON'BLE MR. JUSTICE MUKESH RAJPUROHIT

Order

17/04/2026

1. Instant petition has been preferred by the petitioner against the impugned order dated 23.02.2021, passed by the learned Additional District Judge No. 2, Jodhpur Metro, in Civil Appeal Decree Case No.43/2018, whereby the application filed by the petitioner under Order XIV Rule 5 read with Section 151 CPC has been rejected.

2. Learned counsel for the petitioner submits that a suit for possession and mesne profits was filed by the respondent-plaintiff, which came to be decreed vide judgment dated 09.08.2018, on the basis of issues framed by the learned trial Court. Against the said judgment and decree, the petitioner preferred an appeal, which is pending before the learned appellate Court. During the pendency of the appeal, the petitioner filed two separate applications under Order XIV Rule 5 CPC for framing certain additional issues. However, the learned appellate Court rejected both the applications by passing an unreasoned and non-speaking order.

3. Learned counsel further submits that an appeal is a continuation of the original proceedings, therefore, the petitioner is entitled to raise additional grounds and seek framing of necessary issues for proper adjudication of the dispute. In support of his submissions, he has placed reliance upon the judgment of the Hon’ble Supreme Court in Malluru Mallappa (D) Thr. LRs. vs. Kuruvathappa & Ors., reported in (2020) 4 SCC 313 wherein it has been held that a first appeal is a valuable right and the appellate Court is required to consider all questions of fact and law and decide the matter by recording reasons on all issues.

4. It is further submitted that, in view of the settled position of law, the petitioner has a right to move an appropriate application, and the court is under an obligation to ensure proper adjudication of the controversy.

5. Per contra, learned counsel for the respondent submits that the application under Order 14 Rule 5 CPC was not maintainable before the appellate Court and ought to have been filed before the trial Court. It is contended that, as the petitioner has filed the application under an incorrect provision, no relief can be granted and the learned appellate Court has rightly rejected the same. It is further submitted that, after the decree, the petitioner cannot be permitted to introduce new facts by seeking framing of fresh issues.

6. In rejoinder, learned counsel for the petitioner submits that the petitioner may be permitted to file a fresh application under the appropriate provision, i.e., Order 41 Rule 25 CPC, before the learned appellate Court and the same may be considered in accordance with law. In support of this contention, reliance has been placed upon the judgment of the Hon’ble Supreme Court in Pruthvirajsinh Nodhubha Jadeja (D) by LRs. vs. Jayeshkumar Chhakaddas Shah & Ors., reported in (2019) 9 SCC 533, wherein it has been held that mere non-mentioning or incorrect mentioning of a provision is not fatal if the Court otherwise has the power to grant the relief.

7. Having heard learned counsel for the parties at length and upon careful consideration of the rival submissions, as also perusal of the material available on record, this C