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Bombay High CourtIndian Cases

Anandrao Bandu Jadhav And Anr. vs Bibijan on 2 September 1982

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Bombay High Court
Anandrao Bandu Jadhav And Anr. vs Bibijan on 2 September, 1982
Equivalent citations: AIR1983BOM32, AIR 1983 BOMBAY 32, 1982 (2) CIV LJ 565 1982 MAH LJ 748, 1982 MAH LJ 748
1. Order dated 10th Aug., 1981 passed by the trial Court below applications Exts. 18 and 21 in Regular Civil Suit No. 264 of 1978 is challenged in this petition therefrom by the original defendants.

2. The plaintiff applied to the trial Court for an order to delete issue No. 4 under the provisions of O. 14, R. 5 of the Code of Civil Procedure. The learned trial Judge, after hearing the rival contentions in that behalf, directed deletion of the said issue. Hence, this petition.

3. Going through the impugned order and the reasons given by the learned trial Judge for deleting issue No. 4, I find that the said order does not suffer from any error of jurisdiction. It was within the jurisdiction of the learned trial Judge to frame an issue or to delete one framed. Order 14, Rule 5 (2) of the Code of Civil Procedure expressly permits the Court to strike out an issue wrongly framed. If, in this light, the learned trial Judge has granted the plaintiff’s application in question and deleted issue No. 4, the order in that behalf is not liable to be set aside or reversed in this Court’s limited jurisdiction under S. 115 of the Code of Civil Procedure.

4. Even on merits, I find that there was no disclosure at all of any of the terms and conditions of the purported tenancy. There is nothing to indicate as to when the tenancy commenced. There is also nothing to indicate as to who created the tenancy. And as indicated, there is nothing to show as to what were the terms and conditions of the said purported tenancy.

5. As observed by this Court in Pandu v. Ananda, :

“Under O. 14 of the Code of Civil Procedure an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other. When a vague plea is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was crated. If …… the defendant is unable to furnish the same, the Court should not raise an issue on a vague plea that he, the defendant, is a tenant of any particular piece of land. Normally the rules of pleadings require that these particulars are the minimum particulars which a man must furnish before he can request the Court to frame an issue as regards the claim made for tenancy.”
If, in this situation, the learned trial Judge finds the issue in question to be one which ought not to be framed and raised and if framed one which deserves to be deleted, order in that behalf cannot be successfully assailed in a revision application under Section 115 of the Code of Civil Procedure.

6. Mr. Pradhan, learned counsel for the petitioners, however, contended relying on the e very ruling in Pandu’s case (supra), that the Court has no power to delete or strike out an issue already framed. I am afraid, reliance placed on the aforesaid ruling in that behalf is rather misconceived. The question of deleting or striking out an issue already framed was not a question arising for determination in the aforesaid ruling, much less has the question been considered and decided therein. Besides, as indicated, O. 14, R. 5 of the Court of Civil Procedure expressly permits the Court at any time before passing a decree to strike out any issue that appears to it to be wrongly framed. It would not be a correct reading of Pandu’s ruling to hold that even implicitly it seeks to lay down any legal position contrary to the aforesaid express provision of the Code of Civil Procedure.

7. In the result, the order passed by the trial Court is upheld and confirmed. This revision application challenging the same fails and is dismissed. Rule will stand discharged with costs. Interim stay vacated.

8. Revision dismissed