In my view, it has now become necessary to direct the judges taking
up trial of suits that they should comply with provisions of Order XIV Rule
It
1(5) of C.P.C. and mentioned the said fact in the roznama of the suit.
would also be desirable to dictate the text of the issues to be settled
preferably in the presence of parties or their advocates so that there would
be no controversy as regards the text of the issues. It is hoped that if the
above procedure is followed while framing of issues, that will reduce the
instances of filing application for recasting of issues.
WRIT PETITION NO. 1885 OF 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Dr.Lingaraj Balasaheb Swami
v/s.
Sanjay Appasaheb Swami & Ors.
CORAM: R.Y.GANOO, J.
DATED : OCTOBER 09, 2013.
2. Rule made returnable forthwith. Mr.Amit Borkar, learned Advocate
1.
appearing for the respondent waives service.
pps
By consent, this petition is
taken up for final hearing.
The petitioner is defendant in Special Civil Suit No.444 of 2004
3.
Kolhapur.
presently pending on the file of learned Civil Judge, Senior Division at
The respondent nos.1 to 3 have filed the aforesaid suit for
recovery of damages by alleging that a particular news item which appeared
in daily "Lokmat" on 5.4.2004 was published at the instance of the present
petitioner and that the text of the said item is defamatory.
The petitioner
above mentioned filed a written statement and thereafter the learned Judge,
by order dated 15.7.2005 framed following issues:
Do plaintiffs prove that news flashed at the instance of
"1.
defendant in daily 'Lokmat' dated 5.4.2005 is false, defamatory
and their prestige/image has been lowered down in the society
as alleged?
2. Whether the suit is pre-matured?
3. Do plaintiffs prove the amount of Rs.10,00,000/- towards
compensation is just and reasonable?
4. Are plaintiffs entitled to suit claim amount?
5. What relief and decree?
Thereafter, an application for recasting of the issues was made by the
Said application dated
respondents being Application below Exhibit 12.
4.
13.1.2006 was attended to by the learned trial Judge and he by order dated
31.7.2009 recast the issues. The re-cast issues are as follows :
1.
Do the plaintiffs prove that the criminal complaint filed
2.
by the defendant was malicious?
Whether said criminal compliant was filed by the
Whether the defendant is responsible for flashing news
3.
defendant without any reasonable and portable cause?
in daily "Lokmat" newspaper dated 5.4.2004 of the complaint.
4.
Whether due to the acts of defendant prestige/image of
the plaintiffs is lowered down in the society as alleged?
After the order dated 31.7.2009 framing aforesaid four issues, the
5.
present petitioner filed application dated 9.9.2010 for recasting the issues
and suggested as many as four issues. This application dated 9.9.2010 i.e.
application Exhibit 27 was rejected by the learned trial Judge by order dated
12.1.2012. This petition is filed to challenge this order dated 12.1.2012.
I have heard learned Advocates on both sides.
At the outset it is
6.
required to be mentioned that order dated 12.1.2012 was passed without
affording hearing to the petitioner or his Advocate.
This is being stated on
On perusal of the issues which were framed on 15.7.2009 as well as
7.
the basis of the observations made in the order dated 12.1.2012.
on 31.7.2009 it is apparent that the learned trial Judge has not considered
the pleadings in the proper perspective and has not attended to the job of
framing of the issues in the proper manner. It is required to be mentioned
that following two issues came to be framed by the learned trial Judge on
recasting.
1.
Do the plaintiffs prove that the criminal complaint filed
by the defendant was malicious?
2.
Whether said criminal compliant was filed by the defendant
without any reasonable and portable cause?
It is just difficult to understand as to how these two issues arise on the
8.
basis of the pleadings which were before the court. It is true that in the suit
filed by the respondents there has been a reference to a criminal complaint
filed by the respondents against the petitioner being Criminal Complaint
The said complaint was filed in the Court of Judicial
A mere reference in the said plaint as
Magistrate, I Class, Kolhapur.
No.41 of 2004.
regards the said criminal complaint could not be a ground to frame the
aforesaid issues as regards the complaint which came to be filed by the
present respondents.
This itself clearly goes to show that there was non
application of mind by the learned trial Judge while recasting the issues
while deciding application below Exhibit 12.
To that extent the aforesaid
two issues were wrongly framed and certainly require deletion thereof.
9.
The petitioner thereafter filed application below Exhibit 27 and
The
suggested that issues as mentioned in the said application be framed.
learned trial Judge rejected the said application and has not indicated as to
why he does not want to frame the issues as suggested by the petitioner in
application dated 9.9.2010. From the aforesaid developments it is clear that
the job of framing of issues has not been done in the proper manner. The
learned trial Judge has not considered the plaint as well as the written
statement in the proper perspective and has not arrived at decision as to
which facts are in issue. It is in these circumstances, I am inclined to set
aside the order dated 31.7.2009 below Exhibit 27 and restore the application
below Exhibit 27 to the file of the court with direction to the learned trial
Judge to hear the advocate for the plaintiff and the advocate for the
defendants and thereafter frame the issues afresh by going through the
plaint and written statement.
Needless to mention that in view of above
directions the issues framed on 31.07.2009 will have to be quashed and set
10.
aside.
It is required to be observed that the provisions of Order XIV of Code
of Civil Procedure deal with the stage namely “Framing of issues”.
The
provisions of Order XIV Rule 1(5) C.P.C. clearly mandate that at the time
of framing of issues, the judge who has to frame the issues has to hear the
parties or their pleaders. It would be proper to reproduce the text of Order
XIV Rule 1(5) of C.P.C. .
"1(5). At the first hearing of the suit the Court shall, after reading the
plaint and the written statements, if any, and after examination under Rule 2
of Order X and after hearing the parties or their pleaders, ascertain upon
what material propositions of fact or of law the parties are at variance, and
shall thereupon proceed to frame and record the issues on which the right
decision of the case appears to depend."
pps
On the basis of the record which is before the court, it is apparent that
Order XIV Rule 1(5) of C.P.C.
the learned trial Judge did not comply with the mandatory provisions of
This, in my view, has resulted in injustice
It is noticed by this court that on many occasions the job of framing
11.
to both the sides.
of issues is done without hearing parties or their advocates that is to say the
provisions of Order XIV Rule 1(5) of C.P.C. requiring hearing of the parties
or their advocates is not followed.
Rule 1(5) of Order XIV of C.P.C. is
drafted with the intention that the parties or their advocates would afford
necessary assistance to the court in the matter of pin pointing the facts in
issue which will eventually help in drafting the text of the issues to be
framed in the suit. Once the issues are framed after complying with the
provisions of Order XIV Rule 1(5) of C.P.C. it is unlikely that the parties
It will also help in framing proper
will request for recasting of issues.
12.
issues.
In my view, it has now become necessary to direct the judges taking
up trial of suits that they should comply with provisions of Order XIV Rule
It
1(5) of C.P.C. and mentioned the said fact in the roznama of the suit.
ig
would also be desirable to dictate the text of the issues to be settled
preferably in the presence of parties or their advocates so that there would
be no controversy as regards the text of the issues. It is hoped that if the
above procedure is followed while framing of issues, that will reduce the
instances of filing application for recasting of issues.
13.
For the reasons mentioned aforesaid, following order is passed to
dispose of this petition.
ORDER
Order dated 12.1.2012 below Exhibit 27 passed by the learned Civil
Judge, Senior Division, Kolhapur in Special Civil Suit No.444 of 2007 is
set aside. Application below Exhibit 27 is restored to the file of said court
for hearing and disposal in accordance with the provisions of law and in the
light of this judgment.
Issues framed on 31.7.2009 are quashed and set aside.
iii. The learned trial Judge shall hear and dispose of application below
ii.
Office to supply authenticated copy of the order to both the sides.
iv.
Exhibit 27 on or before 30.11.2013.
v.
The petitioner shall place the authenticated copy of this order before
the learned trial Judge for acting upon it.
vi.
The Registrar General, High Court, Bombay is directed to circulate a
copy of this judgment to all the Judges within the State of Maharashtra and
State of Goa.
In the facts of the case, there shall be no order as to costs.
iv.
[R.Y.GANOO, J.]
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