Case Note & Summary
The petitioner, Tulshiram Kasale, filed a civil suit (RCS No.143/2008) against his brother and others seeking partition of ancestral property. During the trial, the petitioner moved an application (Exhibit 28) praying for framing an additional issue: 'Whether the partition deed executed between petitioner and his brother was null and void in view of provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.' The trial court rejected this application. Aggrieved, the petitioner filed Writ Petition No.6055 of 2014 challenging that order. In a connected Writ Petition No.6056 of 2014, the petitioner challenged the order on Exhibit 83, which appears to be another interlocutory order. The High Court heard both petitions together. The court observed that under Order 14 Rule 5 of the Code of Civil Procedure, 1908, the court may frame additional issues at any time before judgment if it is necessary for determining the real controversy. The court found that the proposed issue was relevant to the suit and its framing would help in just adjudication. The court set aside the trial court's order on Exhibit 28 and directed the trial court to frame the additional issue. The court also disposed of Writ Petition No.6056 of 2014 as not pressed or with similar direction. The judgment was delivered by Justice T.V. Nalawade on 15th February 2019.
Headnote
A) Civil Procedure Code - Framing of Issues - Order 14 Rule 5 - Additional Issue - The trial court has discretion to frame additional issues at any stage before judgment if necessary for determining the real controversy - The court held that the issue regarding validity of partition deed under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 was relevant and necessary for just decision - Held that rejection of application was improper (Paras 3-5).
Issue of Consideration
Whether the trial court erred in rejecting the application for framing an additional issue regarding the validity of the partition deed under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
Final Decision
Writ Petition No.6055 of 2014 is allowed. The order passed below Exhibit 28 in RCS No.143/2008 is quashed and set aside. The trial court is directed to frame the additional issue as proposed. Writ Petition No.6056 of 2014 is disposed of accordingly.
Law Points
- Framing of additional issue
- Partition deed validity
- Bombay Prevention of Fragmentation and Consolidation of Holdings Act
- 1947
- Civil Procedure Code Order 14 Rule 5
