AI Structured Summary
Not yet generated for this judgment
Judgment
The petitioner has preferred this writ petition under Article 227 of the Constitution of India claiming the following reliefs:
“ (I) By appropriate writ order or direction, the impugned order dated 20.05.2014 may kindly be quashed and set aside and the application of the
respondent No. 1 to 6 (defendants No. 1 to 7) under order 6 Rule 17 CPC be dismissed.
2 Any other order or direction, which this Hon’ble Court deemed just and proper be passed in favour of the petitioner.â€
Brief facts of this case, as noticed by this Court, are that the petitioner instituted a suit for partition and declaring the sale deed dated 16.12.1992 as
void ab-initio and pre-emption in the year 1993. The written statement was filed on 18.07.1993. The trial court framed issues on 06.11.2001 and the
petitioners proceeded with their affidavits and when the defendant did not turn up an ex-parte decree was passed on 22.02.2006 in favour of
petitioners. An application to set aside the judgment and decree was moved by the respondents and the suit was restored consequently. The
respondents No. 1 to 6 moved an application under Order 6 Rule 17 of CPC on 08.10.2013 inter alia praying that para 12 of the written statement be
deleted and a new para twelve be added. Learned court below has vide order dated 20.05.2014 allowed the application partly and has ordered that
new para 12-A be added in alternate to Para 12 of the written statement.
Learned counsel for the petitioner Shri SL Jain however submitts that framing an alternate paragraph beyond the relief claimed by the respondents
was not in consonance with the settled legal proposition.
Learned counsel for the petitioner has further averred that the petitioner’s prayer was only to include para 12 A and keeping para 12 A as an
alternate is contrary to law.
Learned counsel for the petitioner has relied upon the judgment passed by Hon’ble Apex Court in Union of India Vs. Ibrahim Uddin & Anr.
reported in (2012) 8 Supreme Court Cases 148, the relevant portion reads as under :-
“relief not founded on the pleadings cannot be granted. A decision of a case cannot be based on grounds outside the pleadings of the parties. No
evidence is permissible to be taken on record in absence of the pleadings in that respect. The court cannot travel beyond the pleadings as no party can
lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by
the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties
having full knowledge of the issue in controversy lead the evidence and the court records a finding on it. â€
Learned counsel for the petitioner has also averred that the written statement has been sought to be amended only by respondent No. 1 to 7
whereas the written statement was on behalf of respondent No.8.
Learned counsel for the respondents Shri Abhishek Sharma, however, refutes the submission with a prayer that in case alternate prayer of allowing
para 12-A as an alternate to para 12 is not acceptable as per the argument of counsel for the petitioner, then the same may be made para 12 instead
of para 12 of the existing written statement. Learned counsel for the respondent has however justified the inclusion of the para 12 A of the written
statement.
After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that the learned court below has recorded
relevance of para 12-A in light of the fact that the basic element of pre-emption has been lost by the plaintiff. The learned court below has however
included 12 A along with para 12 whereas this Court agrees with the preposition laid down by the counsel for the petitioner that such alternate to para
12 was not prayed for and in fact if at all the court was satisfied regarding its relevancy then the para 12 A ought to have replaced para 12 particularly
pertaining to the written statement to the extent of respondent No. 1 to 7. Since the relevancy of the para 12 A has been recorded by the learned
court below and this Court on prima facie examination also finds the prayer of the respondents to be correct for amending the para 12 A, therefore,
deems it appropriate to modifying the impugned order to the extent that the written statement for the purpose of petitioner No. 1 to petitioner No. 7
shall read as 12 A, which shall substitute the original Para 12 of written statement.
In light of the aforesaid observations, the present writ petition is disposed of.