Since framing of issues is the duty of the Court, the Court even if on an earlier occasion has refused to frame an issue, can always correct its mistake

In the present matter Hon’ble Delhi High Court has explained the scope of Order 14 Rule 5.

 

I.A. No.3890/2013 (of D-3 to 8 u/O 14 R-5 CPC) in CS(OS) 3227/2011

KAWAL SACHDEVA ….. Plaintiff

Versus

MADHU BALA RANA & ORS ….. Defendants

 

CORAM :- HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

6. The senior counsel appearing for the defendants no.3 to 8 on 06.03.2013, in support of the contention that since the defendants no.3 to 8 have taken a plea in their written statement, even in the absence of any material thereon an issue ought to be framed, had referred to S. Surjit Singh Sahni Vs. Smt. Brij Mophan Kaur 65 (1997) DLT 670.
7. It was however put to the senior counsel appearing for the applicants / defendants no.3 to 8 on 06.03.2013 as to what meaning is to be ascribed to the word “material” in Order 14; whether issues are to be framed on the clever drafting of the Advocates or on the facts as emerging on record. It was also observed that it cannot be lost sight of that an issue once framed requires evidence to be led thereon and which means delay in the disposal of the suit. It was yet further observed in the order dated 06.03.2013 that this aspect, though may not have been considered at any earlier point of time, time has come for Courts to look into the said aspect and the law which may have been good in times gone by, cannot be said to be good in the face of a changing societal status where false pleas in pleadings have become rampant. It is therefore felt that unless the Courts peruse the pleadings together with the material on record to determine whether the plea taken can be said to be a material one or not so as to invite framing of an issue thereon, the litigants, interested in protracted trial, would by clever drafting of pleadings and taking of pleas which otherwise have no legs to stand, would have a large number of issues framed, entitling them to examine a number of witnesses, thereby making a mockery of the judicial process. It was also prima facie observed in the order dated 06.03.2013 that in the state of the pleadings in the present suit, the plea of collusion between the defendants no.1 and 2 is not made out. Liberty was also granted to the defendants no.3 to 8 to press this aspect if at any point of time in trial it was felt that the defendant no.2 is not pursuing her defence diligently and properly and is in collusion with the plaintiff and the defendant no.1.
8. Thus, the reluctance to frame the additional issues as sought.
9. Reference may at the outset be made to D.M. Deshpande Vs. Janardhan Kashinath Kadam (1998) 8 SCC 315 where in the absence of particulars viz. date, mode and terms of creation of tenancy in the pleadings, it was held that an issue on a bare claim of tenancy ought not to have been framed.
10. This Court in Lakshmikant Shreekant (HUF) Vs. M.N. Dastur & Company Pvt. Ltd. 1998 (44) DRJ 502 held that the Court is required to frame issues of fact or of law that necessarily and properly arise for determining the real controversy involved on the pleadings of the parties and that such issues arise when a material proposition of fact or law is affirmed by one party and denied by the other and the Court would not frame an issue which does not arise on the pleadings nor a issue need be framed on a point of law which is perfectly clear. It was further held that the Court is required to apply its mind and understand the facts before framing the issue. It was yet further held that if the plea is mala fide or preposterous or vexatious and can be disposed of without going into the facts or is contrary to law or the settled legal position, the Court will not be justified in adopting a hands off policy and allow the game of the defendant to have its sway.
11. Similarly in Zulfiquar Ali Khan Vs. Straw Products Limited 87 (2000) DLT 76 it was observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time.
12. The High of Bombay also in Mohammad Hayatkhan Karimkhan Vs. Taramati MANU/MH/1494/2010 held that in order to frame an issue it is necessary to consider whether the plea raised is bona fide or merely raised to delay decision in the matter and which entitles the litigant so raising the plea to remain in possession of the property until adjudication of the issue. It was further held that it is also necessary to see whether there is sufficient material placed on record to frame an issue and to make a reference. The learned Judge observed that it is well settled that no frivolous plea need be a matter of reference and the Court before framing an issue is entitled to see whether such plea is bona fide and has any basis in the material placed on record. Reliance was placed on the judgment of the Division Bench of that Court in Pulmati Shyamlal Mishra Vs. Ramkrishna Gangaprasad Bajpai 1981 Maharashtra Law Journal 321 laying down that it is not correct to assume that the Court is under any obligation to frame and remit the issue of tenancy mechanically, merely on the same being raised in the written statement without judicial satisfaction of its necessity and justification; that remittance of any such tenancy issue and the trial thereof is known to have become a long winding and time consuming process enuring the delay for the benefit of the person in possession of the land and which prompts and tempts such persons to take such pleas to perpetuate his unmerited possession. The Bombay High Court further held that the Court has a duty to examine the substance and refuse to frame and remit any issue if the same appears to be demonstrably frivolous and mala fide. Reliance in this regard was placed on the law laid down by the Apex court on Thomas Antony Vs. Varkey Varkey (2000) 1 SCC 35 though in the context of reference to a Tribunal but holding that the law making reference to the Tribunal mandatory cannot be said to have intended that even a patently frivolous, mala fide and illegal plea taken by a party merely to delay the proceeding and to remain in possession is to be referred to the Tribunal and the statutory provisions have to be read as envisaging a reference only where a bona fide and legally sustainable plea is taken.
13. The Bombay High Court in Sociedade Patriotica Dos Baldios Das Novas Conquistas Vs. Sudhakar Sagun Bhandari MANU/MH/0819/2008 also held that under order 14 of the CPC an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other and when a vague plea is taken, the Court should hesitate to frame an issue on such a vague plea, unless the party is able to give particulars in support of the plea. To the same effect is the judgment of yet another Bench of the Bombay High Court in Uttam Sambha Deshmukh Vs. Yamunabai MANU/MH/0387/1998 where a bald plea unsubstantiated by any documentary evidence was held to be not sufficient for the purpose of framing an issue.
14. This Bench also in order dated 12.03.2013 in CS(OS) No.505/2010 titled as Kavita Chaudhri Vs. Eveneet Singh; order dated 03.04.2013 in CS(OS) No.791/2011 titled Satish Handa Vs. Ashok Diwan and order dated 07.11.2012 in CS(OS) No.2695.2011 titled Satya Gupta Vs. Guneet Singh held: (i) that the Court under Order 14 Rule 1(5) is required to, after reading the plaint and the written statement and after examination under Rule 2 of Order 10 and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and to thereupon proceed to frame and record the issues on which the right decision of the case appears to depend; (ii) that issues are not to be framed on whatsoever pleas are contained in the pleadings but on material pleadings of fact and law and a plea which has no basis in law to stand on and / or a plea qua which law is well settled cannot be said to be a material plea inviting framing of an issue thereon; and (iii) it cannot be lost sight of that framing of an unnecessary issue invites unnecessary evidence and arguments and which protracts disposal of the suits.
15. Mention may lastly be made of the judgment of the Division Bench of this Court in Vijaya Myne Vs. Satya Bhushan Kaura 142 (2007) DLT 483 (DB) though in the context of order 12 Rule 6 of the CPC but holding that admissions can even be constructive which can be inferred from vague and evasive pleadings and that admissions can even be inferred from the facts and circumstances of the case. If it were to be held that on every plea, howsoever vague and unsubstantiated, an issue needs to be struck, there can be no effective application of Order 12 Rule 6 CPC as laid down in this judgment.
16. Applying the aforesaid principles, I am unable to agree with the counsel for the applicants / defendants no.3 to 8. Though undoubtedly the defendants no.3 to 8 have in their written statement taken a plea of the letting by the defendant no.2 being on behalf of the defendant no.1 who is the attorney of the owner of the property and the rent payable by them being less than Rs.3,500/- per month, this suit in a Civil Court for possession of the premises is barred by Section 50 of the Rent Act but the fact remains; (i) that the defendants have never in the past taken the said plea; (ii) there is no material before this Court to support the said plea; (iii) it is not as if the applicants / defendants no.3 to 8 had no opportunity in the past to take such a plea – there have admittedly been a number of complaints and litigations and in which the applicants / defendants no.3 to 8 claimed to be tenant under the defendant no.2 only and never claimed to be a tenant under Major Ranbir Singh Rana or the defendant no.1 or of letting though by the defendant no.2 being with the consent of Major Ranbir Singh Rana or the defendant no.1; (iv) even the documents of letting are by the defendant no.2 only and admittedly do not state the letting by the defendant no.2 being with the consent of or on behalf of the plaintiff or the defendant no.1; and, (v) oral evidence contrary to the written document is barred. 25. The plea thus of the applicants / defendants no. 3 to 8 on which issue is sought thus fails to meet all the parameters listed hereinabove of a plea on which issue is required to be framed.
17. S. Surjit Singh Sahni supra, a judgment of the Single Judge of this Court relied upon by the plaintiff in the hearing on 6th March, 2013 is not apposite to the matter in controversy. That is a judgment on the scope of Order 14 Rule 5 of the CPC and lays down that since framing of issues is the duty of the Court, the Court even if on an earlier occasion has refused to frame an issue, can always correct its mistake. In that case an issue proposed was refused in the light of law then prevalent but was again sought upon change in the legal position. In that context an observation was made that the reason that the plaintiff may eventually lose cannot be a ground to refuse issue. However, the said sole observation in the judgment cannot be said to be taking a different view than the case law discussed hereinabove.
18. It cannot be lost sight of that the six tenants impleaded as defendants no.3 to 8 even if were to examine themselves, their examination and cross examination itself will stretch for a year if not more. It cannot also be lost sight of that no bar can be put on each of the said defendants examining witnesses other than themselves and once that is permitted, the same will enable the applicants / defendants to perpetuate their possession of the premises, it ultimately held to be illegal, for at least a decade if not decades.
19. Though jurisprudentially our justice delivery system is an adversarial one but even the said system does not require the Court / Judge to be a mute spectator in the litigation before it and to apply its mind only at the stage of final decision and by which time, if the litigants are shrewd or cunning, the delay may end up in denial of justice. The Courts have to keep pace with the times and cannot notwithstanding the practice, of the litigants taking false pleas to suit their purpose, becoming rampant, continue to act in a passive manner to conduct the trial mechanically. The Supreme Court recently in Maria Margarida Sequeira Fernandes Vs. Erasmo Jack De Sequira (2012) 5 SCC 370 has also observed that the Judge has to play an active role.