MOHRU Vs. MST. SARA DEVI

JUDGEMENT

(1.) Heard the counsel for the petitioner-defendant (hereinafter 'defendant') and perused the impugned order dated 20.11.2015 passed by the Additional Senior Civil Judge No. 1, Jaipur District dismissing the defendant's application under Order 14, Rule 5 CPC for framing of an additional issue as to whether the adoption deed dated 25.01.1962 whereby the plaintiff Bheru (now deceased and represented by his Legal Representatives) was legal and valid adopted.

(2.) Facts relevant are that in para 2 of the plaint/suit where the relief sought was the cancellation of the will dated 26.08.1969 executed by Mahadev, it was averred that the plaintiff Bheru was adopted by Mahadev. In the written statement the defendants denied the said averment and stated that the adoption deed dated 25.01.1962 was not valid and legal and consequently the plaintiff Behru himself also the beneficiary of the impugned will dated 26.08.1969 had no cause of action to lay the suit for cancellation of that very will. Yet by an over-right/error an issue as to the validity of the adoption deed of 25.01.1962 was not framed. Hence the application under Order 14, Rule 5 CPC for framing an additional issue in that regard was filed. The application for framing the additional issue as sought was opposed by the plaintiff stating that framing an issue on the validity and legality of the adoption deed dated 25.01.1962 was not germane to the relief prayed for in the suit. More so in view of the fact that plaintiff Bheru's natural mother one Dhaka Bai had herself challenged the adoption of Bheru in civil suit No. 5/2001. The trial court on consideration of the respective contentions on framing of the additional issue as prayed by the defendants, dismissed the application under Order 14, Rule 5 CPC. Hence this petition.

(3.) Mr. Yash Sharma counsel for the defendant submitted that it is trite that when an averment of fact is made in a plaint and denied in the written statement, an issue has been struck in regard thereto. He submitted that in the instant case the issue with regard to the legality and validity of the adoption deed dated 25.01.1962 was central to the controversy before the trial court (and the plaintiff and the defendant were at odds in regard thereto) inasmuch as in the event of it being found that the adoption deed dated 25.01.1962 was not legal and valid, the plaintiff Bheru (deceased) now represented by his Legal Representatives would have no cause of action to lay a challenge to will dated 26.08.1969 for the reason that as the natural born son of Narayan he was entitled to the benefit thereof along with the defendants also the sons through Dhaka Bai. In support of his contention Mr. Yash Sharma relied upon the three judge bench decision of the Apex Court in the case of Makhan Lal Bangal v. Manas Bhunia and Others, [(2001)2 SCC 652] emphasing the importance of framing of issues in a trial and the responsibility of the parties and the court too to ensure that appropriate issues, based on the pleadings, are framed for a just and proper determination of the lis between the contesting parties. Mr. Yash Sharma submitted that non-framing of the issue with regard to the validity and legality of the adoption deed dated 25.01.1962 whereon the plaintiff found his purported legal right and denial thereof by the defendant mandated an issue thereon being framed. Non-framing in the first instance was also the shortcoming of the trial court doing its duty. That should have been rectified by allowing the framing of an additional issue. It was submitted that the reason for which the trial court has dismissed the application for framing of additional issue, that the mother of the defendants in the suit had herself filed a suit for cancellation of the adoption deed dated 25.01.1962, was misdirected. It was submitted that the defence of the defendant in the suit by plaintiff Bheru (now represented by his LRs) seeking cancellation of the will dated 26.08.1969 was not connected to the suit filed by Dhaka Bai. The two were independent proceedings to be addressed on evidence independently laid.