?r\R^5 ^ 5":;"^; r:^. ^ ^'^ *^i'^.i» y ^fc y U 1 1 ,<-7 C^-.fd6^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR W.P. fU/A.227) No. /-f 2 2 /2009 PETITIONERS DEFENDANTS ^1] /^ ^w/ ^yi' ^'^y ^' 's? ^ RESPONDENT PLAINTIFF ^ 2] ^3] -4] -5] 6] 7] ^"" 1] / 2] Kunjan S/o. Jagsai Uraon, Aged about 47 years., R/o. Kedarpur, Tahsil Ambikapur, District Surguja (CG) Mu. Dario, D/o. Jagsai Uraon, Aged about 45 years^ R/o. Sureshpur^ Tahsil Patthalgaon, District Jashpur (CG) Mu. Meera Bai, D/o. Jagsai Uraon, Aged about 43 years, R/o. Chidapara, Tahsil Sitapur, District Surguja (CG) Mu. Sukhmaniya, D/o. Jagsai Uraon, Aged about 41 years/R/o. Golabuda, Tahsil Dharamjalgarh, District Raigarh (CG) Mu. Budhmaniya, D/o. Jagsai Uraon, Aged about 39 years, R/o. Golabuda., Tahsil Dharamjaigarh., District Raigarh (CG) Mu. Laxmaniya, D/o. Jagsai Uraon, Aged about 37 years, R/o. Golabuda, Tahsil Dharamjaigarh, District Raigarh(CG) ,, Mu. Jagani, Wd/o. Jagsai Uraon, Aged about 65 years, R7o. Golabuda, Tahsil Dharamjaigarh, District Raigarh (CG) VERSUS Smt. Kuchubai., W/o. Thepa Uraon, Aged about 52 years., R/o. village Golabuda, Tahsil Dharamjaigarh, At present R/o. Chidapara, Tahsil Sitapur, District Surguja (CG) State of Chhattisgarh, through: Collector, Raigarh (CG) ..... Respondent/defendant no.8 VIQNI ^o NoiiniiiSNOD 3H^\iO Z-ZZ 3T[3II^IV ^aaNH NOIII13<I 1IUM PiNtt^ mGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Writ Petition (227) No. 422/2009 PETITIONERS : Kunjan and others Versus RESPONDENTS : Smt. Kuchubai and another Appearance: Shri Manoj Paranjpe, counsel for the petitioners. Miss. Sangeeta Mishra, Panel Lawyer for the State/respondent No.2. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ORAL ORDER (08.02.2011) This is defendants petition under Article 227 of the Constitiition of India. The Trial Court has rejected their application under Order 14 Rule 5 ofCPC for fi-aming additional issues for trial. (2) Plaintiff Kuchubai has filed the suit for declaration, partition and separate possession. On the basis of pleadings raised by the parties, the Trial Court framed six material issues for trial on 25/08/2008. The petitioners moved application under Order 14 Rule 5 of CPC on 3/11/2008 inter-alia submitting that issues regarding the parties being governed by their own custom, regarding the Trial Court having no jurisdiction to tiy the suit on the strength of proper valuation of the claim and regarding the order of mutation having ^, become final and the plaintiff is estopped from challenging said objection, have not been framed. <) I .-2- [: (3) The Trial Court rejected the prayer after observing that tlie proposed additional issues are already covered under the issues No.l to 5 already framed by the Court. (4) Learned counsel for the petitioner would submit that tfie proposed issues are not covered and the petitioner vvould be prejudiced at the tinie of leading evidence, if specific issues as proposed in the application are not framed. (5) He would submit that for complete and effective adjudication of the dispute fi'aming of additional issues are necessary in the interestofjustice. (6) This Court has gone through the pleadings made by the parties in the plaint and written statement respectively. Proposed additional issue No.l is regarding the parties being governed by their own custom. Issue No.l already framed by the Court is also to the effect as to whether the parties are governed by Indian Succession Act. While recording finding on issue No.l the Trial Court would necessarily by required to examine .whether the parties are governed by their own custom or by the provisions of Succession Act. Thus, proposed additional issue No.l is covered under the issue No.l. (7) Proposed additional issue No.2 is about maintainability of the suit and the competency of the Court of Civil Judge, Class-II to try the suit as according to the defendants the Court ofCivil Judge Class- II does not have the pecuniaryjurisdiction to try the suit. Pleading in Mis regard has been made in para 9 of the written statement. In the '^^ -3 opinion ofthis Court, in view ofthe specific pleading made in para 9 of the written statement proposed additional issue No. 1 should have been framed by the Trial Court. (8) Proposed additional issue No.3 is about the plaintiff being estopped from challenging order ofmutation. This issue need not be framed separately because while deciding issue No.4 about plaintiffs entitlement to seek a decree for partition, the Court is required to address itselfto the tegal entitlement oftheparties. (9) In view of the above, the writ petition is allowed in part. The Trial Court shall frame proposed additional issue No.2 regarding the jurisdiction of the Civil Judge Class-II to tty the suit in view of pleadings in para 9 ofthe vvritten statement. (10) Prayer regarding other additional issues are rejected. (11) This Court had earlier issued notice to the respondents. However, even after two years respondent No. 1 has not been sen7ed, however, since proceedings ofthe Trial Court has been stayed by this Court vide its order dated 23/01/2009, the present order is passed in the absence of respondent No. 1 as by this order only an additional issue is framed and rights of the parties are not affected, hovvever respondent No.l shall be at libert>'r to move an application for modification ofthis order on any permissible ground. (12) Petition stands partly allowed. ^ Sd/- prashantKumarMishra Judge