MAHOMADSHARIF KASAMJI RANGWALA Vs. AMIBAI ALLABUX RANGWALA
HIGH COURT OF GUJARAT
Mahmoed Sharif Kasamji Rangwala
Amibai Allabux Rangwala And Another
Click here to view full judgement.
(1.) HOW to construe the pleadings ? Can averments made by a party in the pleadings be dissected segregated and then read out of context? Or should the pleadings be read as a whole to ascertain the true import of the same ? How to gather the intention of the party making certain averments in the pleadings? is in substance the main question which has arisen in this revision application.
(2.) The opponents original plaintiffs filed Civil Suit No. 3697 of 197 8/10/1978 in City Civil Court Ahmedabad and prayed for possession of the suit property situated in Astodia area of Ahmedabad City and for injunction to the effect that the defendant be restrained from interfering with their possession. According to the plaintiffs the suit was based on possession and not on title. The petitioner defendant appeared in the suit and filed his written statement and thereafter as many as nine issues were framed by the trial court on 21/08/1980 One of the issues i.e. Issue No. 5 was as follows: Whether plaintiff No. 2 proves that he was in actual possession of the premises alleged to be dispossessed on 15-7-78? The plaintiffs submitted an application Exh. 10 5/09/1980 and prayed that certain issues be deleted. That application was rejected. Against that order of rejection the plaintiffs preferred Civil Revision Application No. 265 of 1981 in the High Court. Pending that civil revision application another application preferred by the plaintiffs to delete the relief regarding injunction was granted by the trial court. In Civil Revision Application No. 265 of 1981 this Court (Coram : R. C. Manked J.) passed the following order on 8/03/1982
"Mr. M.D. Pandya learned Counsel for the petitioners plaintiffs states that the plaintiffs application for amendment of the plaint whereby they sought to delete incidental relief for injunction has been granted by the trial court. In view of the amendment of the plaint it is academic to decide whether or not the learned trial Judge has erred in rejecting the plaintiffs application for amendment of the issues. In view of the amendment of the plaint it would be open to the plaintiffs to make a fresh application for amendment of the issues. The impugned order on the basis of unamended plaint is of no consequence and if and when the plaintiffs make fresh application for amendment of the issues the trial court shall decide it on merits uninfluenced by the view taken in the impugned order.
In view of what is observed above this revision application does not servive. It shall therefore stand rejected with no order as to costs. Rule discharged. Ad interim relief vacated. Thereafter on 20/01/1983 the plaintiffs filed another application Exh. 126 in the suit for deletion of certain issues and for framing certain other issues. The basis of the application appears to be that the suit of the plaintiffs was under the provisions of sec. 6 of the Specific Relief Act and it was based on previous possession of the plaintiffs and that it was not a suit based on title. Therefore the contentions raised by the other side based on title and on certain other grounds would be beyond the scope of the suit and hence the issues were required to be deleted and certain other issues were required to be framed. The application Exh. 126 was opposed by the other side inter alia on the ground that it was lacking in bona fides and it was actuated by mala fides and that it was with a view to cause delay in the proceedings and once an earlier application was dismissed the second application could not have been filed and when there are pleadings on record of the case the issues framed by the court should not be disturbed and the prayer that the counter claim pleaded by the defendant in the written statement be deleted cannot be granted. The trial court after looking at the pleadings and after hearing the parties came to the conclusion that the suit was essentially under the provisions of sec. 6 of the Specific Relief Act and was based on previous possession of the plaintiffs. Incidental averments with regard to the ownership of the property in question would not change the nature of the suit. Therefore the trial court held that the issues which pertained to the ownership of the suit property in question were beyond the scope of the suit and were not required to be decided and hence were ordered to be deleted. The trial court also came to the conclusion that since the suit was under sec. 6 of the Specific Relief Act and since it was based on the previous possession of the plaintiffs the counter claim by which the defendant wishes to raise the plea with regard to his ownership cannot be entertained in this suit. The trial court also came to the conclusion that the issue with regard to the bar of multifariousness and with regard to the nonjoinder of parties was also not necessary in view of its finding that the spit was essentially under the provisions of sec. 6 of the Specific Relief Act. Hence the trial court passed the following order on 24/01/1983 :
" Issues Nos. 1 to 4 and 6 to 8 are ordered to be deleted the counter claim of the defendant vide exh. 15 is ordered to be excluded and following two issues are framed in addition to issues Nos. 5 and 9 in issues exh. 18. The issues are now: renumbered as the two issues viz. (1) Whether the plaintiff is dispossessed from the rear portion of the second floor as stated in the plaint? and (2) Whether the suit is filed within the period of six months from the date of dispossession? are numbered as issues Nos. 1 and 2 and the original issues Nos. 5 and 9 are numbered as issues Nos. 3 and 4 The plaintiffs application is allowed with no order as to costs. Issues be amended accordingly."
It is this order which has been challenged by the petitioner original defendant in the present revision application.
(3.) The counsel for the petitioner contended that the plaint as it reads cannot be said to be a plaint under sec. 6 of the Specific Relief Act. According to him the suit originally filed was a suit based on title since there were averments of title in the plaint and there was prayer for injunction. Hence he contended that the trial court has committed a material illegality in reading the plaint as a plaint under sec. 6 of the Specific Relief Act.;
Copyright © Regent Computronics Pvt.Ltd.