1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9379 OF 2010 Rajaram Bhau Chavan & ors. .. Petitioners V/s Shrimant Bhau Chavan, since deceased by Lrs. Smt. Anusaya Shrimant Chavan & Ors. .. Respondents Mr. T.S. Ingale for the petitioners. CORAM : D.G. KARNIK, J. DATE : 9TH DECEMBER 2010 P.C. : 1. Heard the learned counsel for the petitioners. 2. By this petition, the petitioner challenges the order dated 27th September 2010 passed by the learned Civil Judge, Junior Division, Jath, rejecting the petitioners’ application for framing of additional issues. 3. The petitioners are the original defendants. The respondents filed a suit (RCS No. 239 of 2004) against the petitioners for partition of a joint family property. The respondents resisted the suit by filing a written statement. After 2 considering the pleadings, the Court framed 9 issues. The petitioners made an application for framing of additional issues. Though the application did not specify what additional issues should be framed, from the tenor of the arguments of the petitioners it appears that the petitioners wanted the Court to frame the following issues:- “(i) Whether the suit was maintainable as all the properties belonging to the joint family were not included in the suit for partition? (ii) Whether the suit was bad for non-joinder of the parties?” 4. Learned counsel for the petitioners submitted that in the written statement the petitioners had raised a specific pleading that the suit was bad because all the properties of the joint family were not included in the suit for partition and had also made a specific pleading regarding non-joinder of the necessary parties. 5. Paragraphs 2 and 3 of the written statement, which are the relevant pleadings, are extracted below : 3 ß2- nkok feGdrh [ksjht oknhus HkkÅ Hkwikyh csjM ¼pOgk.k½ ps [kkrsojhy loZ tehuh nkosr lkehy dsYksY;k ukghr- ;keqGs nkok lnks”k vkgs- 3- oknhus nkok feGdr o vU; feGdrhrhy fgrlaca/khrkauk ;k nkO;kr i{kdkj dsysys ukgh- ;keqGs nkO;kl ßukWu tk¡WbMj vkWQ ikVhZtÞ pk ck/k ;srks vkgs-Þ The contention that all properties were not included in the suit for partition was very vague. The petitioners had not specified which of the properties were not included in the suit. Similarly regarding the contention of non-joinder of the necessary parties, the petitioners had not stated who were the persons necessary to be joined as parties to the suit. 6. Order VIII of the Code of Civil Procedure (for short “the CPC”) contains the rule relating to written statement, set off and counter-claim. Rule 3 of Order VIII provides that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth. Rule 4 of Order VIII provides that 4 where a defendant denies an allegation of fact in the plaint he must not do so evasively, but answer the point of substance. If it is alleged (in the plaint) that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. Rule 5 of Order VIII provides that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Cojoint reading of Rules 3 to 5 of Order VIII of the CPC makes it clear that a denial in the written statement must not be evasive. In the plaint, the plaintiffs had claimed partition of the properties. If there were any properties other than the suit properties which were liable for partition, it was the duty of the petitioners to mention what those properties were and some details of the properties to identify them. The petitioners only made an evasive pleading that all properties were not included in the suit. This denial was an evasive denial and did not form proper pleading. Similarly, the defendants did not mention who were the necessary parties and who were not joined. They merely made an evasive statement that the suit was bad for non-joinder of parties without giving their names or relationship with the 5 parties and without setting out their alleged interest in the suit property. Therefore, on the basis of the pleadings as they presently stand, the Court could not have framed the additional issues as were prayed for. 7. Learned counsel for the petitioners relying upon the provisions of Order XIV Rule 3 of the CPC, submitted that the issues are required to be framed not only from the averments made in the pleadings but also by looking to the contents of the documents produced by either parties. Since the defendants had produced the revenue extracts of the family properties, the Court ought to have framed the issues on the basis of those revenue records. No doubt, the Court is entitled to look to the documents for the purpose of framing of issues. It is settled principle of law that no amount of evidence (oral or even documentary) can be looked into in the absence of pleadings. As stated earlier, the pleadings were vague and there were no specific pleadings regarding the particulars of the properties or the persons who were the necessary parties. Consequently, in the absence of appropriate pleadings, the documents could not be looked into by the Court and therefore the Court committed no error in not framing the issues. 6 8. For these reasons, there is no merit in the writ petition which is hereby rejected summarily. (D.G. KARNIK, J.)