HON'BLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION NO.3205 OF 2010 Dated: 14.12.2010 Between: Dumala Laxmi ..... PETITIONER AND Giri Anjamma and others. .....RESPONDENTS The Court made the following : HON'BLE SRI JUSTICE G. CHANDRAIAH WRIT PETITION NO.3205 OF 2010 ORDER: This revision is filed by the petitioner aggrieved by the order, dated 22.6.2010 in I.A.No.230 of 2010 in O.S.No.40 of 2006 on the file of the Senior Civil Judge, Sircilla, Karimnagar District. The petitioner herein is respondent No.1 in the above I.A. and plaintiff in the suit. Respondents 1 and 2 herein are petitioners in the above I.A. and defendants 1 and 2 in the suit. Respondent No.3 is the 2nd respondent in the above I.A. and 3rd defendant in the suit. I.A.No.230 of 2010 is filed by defendants 1 and 2 in the suit under Order 14 Rule 4 read with Section 152 of C.P.C., requesting to recast the existing issues by adding additional issues as mentioned in the petition. The said application was allowed by the Court below. Aggrieved by the same, the present revision petition is filed by the plaintiff. The case of the plaintiff is that one late Kachakayala Ramaiah, a resident of Vemulawada village was the owner and he was in possession of the suit schedule properties and he died intestate in the year 1988 leaving behind his wife Kachakayala Balavavva as his sole legal heir, who succeeded to the suit properties described in plaint schedules A & B. The said Kachakayala Balavva died intestate on 13.1.2001. She was in possession of the suit properties described in the plaint schedules A and B as owner till her death. The said Balavva did not leave any legal heirs mentioned in Section 15(1)(a) of Hindu Succession Act like sons, daughters and husband. As the said Balavva inherited the suit properties described in plaint schedules A and B properties from her husband, under Section 15(1)(b) of Hindu Succession Act, the heirs of her husband Kachakayala Ramaiah become entitled to the suit properties. But, there are no legal heirs of her husband also. Consequently, the suit properties devolved upon the heirs of the father of Kachakayala Balavva under Section 15(1)(d) of Hindu Succession act. The plaintif is the sister of the said late Kachakayala Balavva, whereas defendants 1 to 3 are the daughters of deceased sister of Kachakayala Balavva by name Challa Sathavva W/o Sathaiah who died about 30 years back. The plaintiff and defendants 1 to 3 are the only legal heirs of late Kachakayala Balavva under Section 15(1)(d) of Hindu Succession Act, upon whom the suit properties described in plaint schedules A and B devolved upon the death of Kachakayala Balavva. The plaintiff is entitled to half share and defendants 1 to 3 together are entitled to the remaining half share in the suit properties. After the death of Kachakayala Balavva, defendant No.1 unlawfully entered into the possession of suit properties under a false claim of registered gift deed dated 1.6.2000 said to have been executed by late Balavva. In a suit i.e., O.S.No.24 of 2003 filed by one Kayam Laxmi alias Kachakayala Laxmi @ Rajeshawari the daughter of the plaintiff, against the defendant No.1 herein, both of them claimed the suit properties of the suit. After full trial, the Court delivered judgment on 22.7.2006 dismissing the suit and holding that the said Kayam Laxmi and defendant No.1 are not the adoptive daughters of late K. Ramaiah and late K. Balavva and that the registered gift deed dated 1.6.2000 set up by the 1st defendant herein is not true and valid. Therefore, the plaintiff filed the suit for partition and separate possession of half share out of the plaint A and B schedule properties. On behalf of the defendants, written statement was filed contending inter alia that defendant No.1 is the adopted daughter of Kachakayala Ramaiah and his wife Balavva in view of the fact that they had no issues and the 1st defendant was taken in adoption by the said Ramaiah and Balavva by performing necessary necessities including that of giving and taking when she was aged 4 years and the said ceremonies of adoption took place in the house of adoptive parents Kachakayulu Ramaiah and Balavva at Vemulawada as per Hindu Shastra and custom prevalent in their community and since the date of said adoption defendant No.1 resided with her adoptive parents. Adoptive father of defendant No.1 K. Ramaiah died leaving behind him, his wife Balavva and the adoptive daughter the 1st defendant as his legal heirs. Further, the adoptive parents of defendant No.1 performed the marriage of 1st defendant and the 1st defendant is residing with her husband and children in the house of her adoptive parents at Vemulawada. The adoptive father of 1st defendant Ramaiah died in the year 1988 whereas adoptive mother Balavva died on 13.1.2001. There was an oral partition between her adoptive mother Balavva and 1st defendant in the year 1990 and in the said partition, the house property mentioned in Schedule B fell to the defendant No.1 while the properties of schedule A fell to the share of Balavva and Balavva resided in schedule B house along with 1st defendant and she was maintained by 1st defendant till her death. The said Balavva during her life time executed a registered Gift Settlement Deed dated 1.6.2000, whereby she gifted schedule A lands i.e., S.No.590/B area Ac.2.11 guntas and Sy.No.591/B area Ac.2.19 guntas in total an area of Ac.4.30 guntas situated at Vemulawada by delivery of possession and from the date of said Gift Settlement Deed, defendant No.1 has been in peaceful possession and enjoyment of said lands as absolute owner as per said Gift Settlement deed. It is stated that schedule B house came to the share of the defendant No.1 in oral partition referred to above. In pursuance thereof, the adoptive mother of the 1st defendant filed a notarized affidavit dated 23.6.2000 before the Gram panchayat, Vemulawada and in the said affidavit, she admitted that 1st defendant is her adoptive daughter by requesting the Gram panchayat to mutate the name of 1st defendant in Grampanchayat property tax register in respect of schedule B house and gave an application to the Gram panchayat by filing the said affidavit. The 1st defendant filed the above registered gift settlement deed before the Mandal Revenue Officer, Vemulawada for mutation of her name in respect of schedule A lands in her name and the M.R.O., by mutating her name issued title deed and pattadar pass book in respect of the said lands on the basis of the above said Gift Settlement deed. So, the 1st defendant alone is the absolute and exclusive owner and possessor of the schedule A lands. The plaintiff has no right, title or interest whatsoever in schedule A and B properties. Basing on the above pleadings, the Court below had framed the following issues: 1. Whether the plaintiff is entitled for partition and separate possession as claimed in the suit? 2. Whether the principle of resjudicata applies on the aspect of adoption, oral partition and gift as claimed by D1? 3. To what relief ? Subsequent to the framing of the issues, the trial has been commenced and the plaintiff was examined as P.w.1. At this stage, Defendants-1 and 2 filed I.A.230 of 2010 under order 14 rule 5 read with section 151 C.P.C while reiterating the averments in the plaint, contending that basing on the pleadings that have been taken in the plaint and the written statement, substantial issues were not framed and therefore, in the interests of justice, it needs recasting of the issues. On the other hand, the plaintiff filed the counter denying the averments made in the petition. After considering the respective contentions and hearing both sides, the following issues have been recasted as framed hereunder: 1.Whether defendant No:1 is the adopted daughter of Kachakayala Ramiah and his wife Balavva as pleaded by her in her written statement. 2.Whether Kachakayala Balavva executed registered gift settlement deed bearing document No:946/2000, dated 1.6.2000 of the Office of the Sub Registrar, Vemulawada in favour of defendant No:1 in respect of plaint schedule-A lands. 3.Whether said Balavva gave and filed a notarized affidavit dated 27.6.2000 before the Gram Panchayat Vemulawada in pursuance of the oral partition of plaint schedule A and B properties left by late Kachakayala Ramaiah. 4.Whether the plaintiff is entitled for any share in the plaint schedule properties under section 15 of Hindu Succession Act as sister of late Balavva. 5.Whether the plaintiff is entitled for partition as prayed for. 6.To what relief. Aggrieved by the same, the present revision petition is filed by the plaintiff. Learned Counsel for the petitioner-plaintiff submits that the suit is filed for partition of the suit schedule property and separate possession claiming ½ share in A & B schedule properties and that written statement was filed by the defendants and proper issues were framed and thereafter, the plaintiff was examined as P.W.1 and at this stage, the defendants 1 and 2 have filed the above application requesting to recast the existing issues by adding additional issues and the same was allowed. He also submits that initially two suits were filed, which are comprehensive in nature and therefore, without adding or recasting the issues already framed, the Court could have adjudicated the matter on the issues already framed and hence, the Court below had committed an error in recasting the issues. He also submits that earlier, the 1st defendant herein was the defendant in O.S.No.24 of 2003 filed by Kayam Laxmi, daughter of plaintiff-Dumala Laxmi for declaration of title and permanent injunction and the same was dismissed and aggrieved by the same, an appeal was filed in A.S.No.48 of 2006 and the same was also dismissed. Therefore, the issues that were framed in the suit, have become final and keeping in view the result in said suit, the new issues need not be framed in the subsequent suits. He also submits that in the earlier judgment, substantial issues have been framed and adjudicated in favour of the defendant therein and therefore, on the very same issues, in the subsequent suits, there cannot be any recasting of the issues in view of the principles of res judicata under section 11 C.P.C. On the other hand, the learned Counsel appearing for the respondents-defendants submits that under Order 14 Rule 5 of CPC., the Court is empowered to frame the issues at any stage before delivery of the judgment. Since the plaintiff in the present suit was not a party to the suit in O.S.24 of 2003, the judgment rendered in O.S.24 of 2003 does not operate as res judicata against the parties in the present suit who are not parties in the earlier suit. In support of his contention, he placed reliance on the judgment of the Apex Court reported in L. Janakirama Iyer Vs. P.M. Nilakanta Iyer[1], wherein the apex Court held that: "That takes us to the question of res judicata. The argument is that on general grounds of res judicata the dismissal of the suit (O.S. No. 30 of 1943) filed by defendants 1 to 6 should preclude the trial of the present suit. It has been fairly conceded that in terms Section 11 of the Code cannot apply because the present suit is filed by the creditors of defendants 1 to 6 in their representative character and is conducted as a representative suit under Order 1, Rule 8; and it cannot be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who have brought the present suit arc the same parties, or parties who claim through each other. Where Section 11 is thus inapplicable it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be urged against such a suit can be the provisions of Section 11 and no other. In our opinion therefore, there is no substance in the ground that the present suit is barred, by res judicata". He also relied upon the decision of this Court reported in Syed Mahmood Vs. Manik Chandra[2] : “ Para 11: In other words when these materials are produced before the Court in accordance with the provisions stated supra, the Court is bound to grame the issues in accordance with the guidelines under Order XIV Rules 1 to 4 and in accordance with the mandate under Rule 5 of CPC . So far as the Court is concerned, the duty to frame the issues is mandatory for obligatory. It appears that in such a situation, the definition of ‘facts in issue’ under Section 2 of Evidence Act and the meaning of ‘issues’ under Order XIV rule 1 of C.P.C. should be read together to harmoniously understand that the facts in issue in each case arising out of such materials before the Court should be subjected to specific forms of issues enumerating the controversies between the parties, the burden of th parties to prove such issues and the duty of the Court to draw inference on the questions of law as issues of law. Therefore, in such a situation, failure to frame issues on the part of the Court, if arise out of the pleadings would be a highest form of judicial impropriety, if not contempt of a legal mandate enjoined upon it. Para 13: The expression used in Order XIV of CPC is settlement of issues. It is not even framing of issues. ‘Settlement of issues’ connotes a true and legal meaning that the issues are to be settled from out of the facts in issue arising out of the pleadings and other materials produced. Failure to do so, would be an utter ignorance of the legal implications and an utter failure on the part of the Court in not discharging its duty enjoined upon it by law. That has been done by the trial Court successfully but to the result which may boarder at injustice to open or the other party. It is pertinent to point out that there cannot be any lis without issues. Because of the issues, the lis or litigation exists. If no issues are framed by the Court as in the present case, it means that there was no lis at all. It is because of the lis or issues, there would be trial by the Court in which the parties would be called upon to produce evidence and the Court will decide the matter. Judged in that background in this case, strictly speaking, no issues at all are framed. That is not only an absolute failure to exercise judicial duty enjoined upon the trial Court, but also a travesty of justice to be expended to the parties in its letter and spirit.” He also relied upon the judgment of this Court in Siddavarapu Siva Kota Reddy. V. State Bank of India[3], wherein it is held that “Order XIV of the Code of Civil Procedure, 1908, deals with framing of issues. The very object of framing an issue is to determine the exact area of conflict and to enable the parties to lead evidence in those lines. In the absence of a specific issue, it will not be possible for the parties to lead evidence with regard to the specific controversy and even if any evidence is let in, the Court may not take it into consideration. In fact, this Court has categorically held that non-framing of an appropriate issue is not a mere curable irregularity and it deprives the liberty to adduce right evidence. The issue, which is framed in the suit, in my considered view, is only with regard to the entitlement of the banker to recover the suit amount. When the banker establishes that the amount advanced by it is paid to the dealer, its burden is over and automatically the suit gets decreed. But, it is the case of the petitioner that bona fide he deposited the title deeds and because of the collusion between the banker and the dealer, the vehicle was never delivered to him and unless and until the vehicle is delivered, he is not liable to pay the amounts to the banker. Therefore, as it is his contention that fraud is committed and there is collusion between the banker and the dealer, an issue with regard to delivery of the vehicle is necessary. I find force in the said contentions. The Court cannot simply say that it can decide the aspect with regard to delivery of the vehicle during the course of trial. As stated supra, in the absence of any issue, even if there is pleading, the same cannot be decided.” The learned Counsel for the respondents-defendants contended that having regard to the pleas taken by both the parties in the plaint and written statement, the application filed by the defendants requesting the Court to recast the issues already framed, was allowed by the Court below and therefore, the revision filed by the petitioner-plaintiff, is liable to be dismissed. There is no dispute as to the factual position that the plaintiff in the present suit was not a party to the earlier suit in O.S.24 of 2003, which ended in the appeal i.e., A.S.48 of 2006. The present suit in O.S.No.40 of 2006 is filed by the plaintiff for partition and separate possession of ½ share in the suit schedule property described as A and B. It is contended by the learned counsel for the revision petitioner-plaintiff that the Court below had already framed a comprehensive issue i.e., Issue No:2 and in view of the same, no further issues need be framed. At this stage, it is relevant to go through the provisions of order 14 rule 5 C.P.C, under which the Court is empowered, at any time before passing a decree, to amend the issues or frame additional issues in such terms, as it thinks fit and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. The main thrust of the argument of the learned counsel for the revision petitioner-plaintiff is that there is no necessity to delete issue No:2 already framed and recaste the issues at this stage and that the principle of resjudicata will apply to the facts of the case on hand. It is contended by the learned counsel for the respondents-defendants that since the plaintiff was not a party to the earlier suit in O.S.12 of 2003, the principle of resjudicata would not apply to the facts of the case on hand and therefore, the Court below is justified in recasting the issues. Irrespective of the fact whether the plaintiff was a party to the earlier proceedings and whether the principle of res judicata would apply to the facts of the case on hand, I am of the opinion that mere recasting of the issues do not cause any prejudice to either of the parties, in as much as both the parties are liberty to adduce evidence on the issues in question and then it is for the Court below to decide the question of facts as well as the legal propositions in the light of the evidence adduced on either aside. In this view of the matter, I feel that the order impugned does not suffer from any illegality or irregularity. However, it is to be noted that among the issues recasted, there is no such issue framed as to the principle of res judicata, which is one of the contentions of the plaintiff in the suit. In this view of the matter and in view of the peculiar facts and circumstances of the case, without expressing any opinion on the merits or the applicability of the principle and in order to invite an affective adjudication of the issue involved in the suit, I feel it just and proper to direct the Court below to frame the issue as to the principle of resjudicata in addition to the issues already recasted. Subject to the above observation, this revision petition is disposed of. ___________________ Justice G. Chandraiah Dated: 14.12.2010 gurc HON'BLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION NO:3205 OF 2010 Dated: 14.12.2010. [1] AIR 1962 SC 633 [2] 1996 AIHC 1387 [3] 2008(5) ALD 317