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The Code Of Civil Procedure (Amendment) Act, 1956

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Andhra High Court
Juvva Seetha Punyeswari vs Sanadi Muni Ratnam And Ors. on 2 November, 2007
Equivalent citations: 2008 (2) ALD 151, 2008 (1) ALT 314
Author: L N Reddy
Bench: L N Reddy



ORDER
 

L. Narasimha Reddy, J.

1. These five revisions arise out of various orders, dated 20.4.2007, passed by the court of III Additional Junior Civil Judge, Guntur, in O.S. No. 955 of 2002. The parties are common to all the revisions.

2. The petitioner filed the suit for a declaration that she is entitled to be extended the post retirement benefits of late Gantaiah, who retired as Deputy Superintendent of Police in the Police Department. She pleaded that she was married to Gantaiah on 5.2.1961, and both of them had three sons, by name Harikumar, Anil Kumar and Aswani Kumar, and out of them, Anil Kumar alone is living. She pleaded that the 1st respondent, who was a subordinate of Gantaiah, developed illicit relations with him and made a claim for the benefits of property left by Gantaiah, as though she is legally wedded wife. The 1st respondent filed a written statement, stating that the marriage between the petitioner and Gantaiah was dissolved, according to the prevalent customs, and thereafter, she married him. Respondents 2 and 3 are said to have been born out of their wedlock.

3. The trial court framed necessary issues and the trial of the suit commenced. The 1st respondent filed the certified copy of the decree and judgment dated 20.9.1985 in O.S. No. 246 of 1985, on the file of the I Additional Munsif Magistrate, Tenali. It is an ex parte decree, declaring that the marriage between the petitioner and Gantaiah was dissolved as per customs. Another document filed by the 1st respondent is the certified copy of the decree in O.P. No. 89 of 1980, on the file of the I Additional Judge, City Civil Court, Hyderabad, in which the marriage between Gantaiah and the 1st respondent is said to have been referred to. The 1st respondent has also filed a Will, Ex.B-31, dated 11.4.2002, said to have been executed by late Gantaiah.

4. In view of the documents filed by the 1st respondent, the petitioner filed I.A. No. 168 of 2007, under Rule 5 of Order XIV CPC, with a prayer to frame three additional issues, touching upon the three documents referred to above. The 1st respondent filed a counter affidavit, opposing the application. Through its order, dated 20.4.2007, the trial court dismissed the I.A. C.R.P. No. 2423 of 2007 is filed against it.

5. Petitioner filed I.A. No. 665 of 2007, with a prayer to permit her to adduce evidence, in respect of the additional issues sought to be framed, through I.A. No. 168 of 2007. Obviously as a sequel to the order in the said I.A., the trial court dismissed I.A. No. 665 of 2007, and C.R.P. No. 2424 of 2007 arises out of it.

6. I.A. No. 258 of 2007 was filed by the petitioner, with a prayer to send Ex.B-31, Will, to the Forensic Laboratory, Maharastra, at Mumbai, for expert opinion, on a comparison with another document, Ex.A-2. The trial court dismissed the I.A., on the ground that the 1st respondent did not admit that the signature on Ex.A-2 is that of Gantaiah. C.R.P. No. 2425 of 2007 is filed against the said order.

7. With a view to establish her case that late Gantaiah was undergoing treatment at Chennai, on the day on which the Will was said to have been executed, the petitioner filed I.A. No. 720 of 2007, for summoning the Superintendent of Cancer Institute, Adayar, Chennai, to cause production of documents mentioned in the application. This I.A. was also dismissed by the trial court. C.R.P. No. 2426 of 2007 is filed against it.

8. The last of the revisions, C.R.P. No. 2427 of 2007 arises out of I.A. No. 721 of 2007 filed under Order XVI Rule 1 CPC, with a prayer to send the Letter of Guarantee dated 30.11.1985, executed by late Gantaiah, and letter dated 5.10.1987, said to have been written by him to the Guntur Co-operative House Construction Society, for comparison with the signatures on the Will, propounded by the 1st respondent. This application was also dismissed by the trial court.

9. Sri P.Vijaya Kiran, learned Counsel for the petitioner, submits that the necessity for the petitioner to file the various applications arose, on account of the documents filed by the 1st respondent, touching upon the marital status and relation of late Gantaiah, and the Will said to have been executed by him. He contends that the view taken by the trial court, as regards framing of additional issues, is untenable in law. He submits that the controversy mentioned in the issues would go to the root of the matter, and the trial court ought to have acceded to the request of the petitioner.

10. Learned Counsel further contends that even as regards the proof or otherwise of the Will, the trial court did not consider the matter in a dispassionate manner, and went on dismissing all the applications.

11. Sri G. Pedda Babu, learned Counsel for the respondents, on the other hand, submits that the petitioner filed a bunch of applications, five years after the suit was filed, by which time the suit was at the advanced stage of disposal. He contends that his clients do not intend to claim any benefit under the Will, and that it is in respect of different items of property. Learned Counsel submits that the additional issues sought to be framed are irrelevant and out of context, and the various orders passed by the trial court, accord with the settled principles of law.

12. The controversy in the suit, as well as the various applications, turns around the question as to who among the petitioner and the 1st respondent was the legally wedded wife of Gantaiah, as on the date of his death. It has already been observed that during the course of trial, the 1st respondent brought on record three documents, viz, an ex parte decree in O.S. No. 246 of 1985, on the file of I Additional Munsif Magistrate, Tenali, certified copies of decree in O.P. No. 89 of 1980, on the file of the I Additional Judge, City Civil Court, Hyderabad, and a Will, dated 11.4.2002, said to have been executed by late Gantaiah. In view of this development, the petitioner filed I.A. No. 168 of 2007, with a prayer to frame three additional issues. The other applications are sequel to this. The additional issues proposed to be framed are as under:

(1) Whether the customary divorce pleaded in the written statement by dissolving the marriage of the plaintiff with Gantaiah is true and valid?

(2) Whether late Gantaiah married the first defendant and the marriage is true, valid and binding on the plaintiff?

(3) Whether the will dated 11.04.2002 pleaded by the first defendant is true, valid and binding on the plaintiff?

In fact, each of them arises out of the respective documents, referred to above. In view of the submission made by the learned Counsel for the respondents that his clients do not intend to rely upon the Will dated 11.4.2002 in the suit, the necessity to examine the genuinety, validity, or otherwise of the Will, does not arise. Consequently, the Will dated 11.4.2002 shall be excluded and eschewed from consideration in the suit, and the proposed additional issue No. 3 becomes superfluous. Now, it remains to be seen as to whether the petitioner made out a case for framing of additional issues 1 and 2.

13. The object underlying the framing of issues is too well known. Issues in a suit arise out of assertion by one party and denial by the other. The exercise made, in this regard, would not only help the court, in regulating the proceedings, but also would enable the parties to point their attention to the actual controversy, as is reflected in the issues. The requirement under Order XIV CPC that the judgment must cover every issue underlies the importance of the same. In most of the cases, the controversy that is reflected in the issues that are framed, at the initial stage, would continue till the disposal of the suit. However, in certain cases, as and how the suit proceeds from one stage to another, the area of controversy gets altered. While some of the issues, which have already been framed, may become irrelevant or obsolete, necessity may arise for framing of additional issues. It is obviously for this reason that the Parliament had empowered the courts under Rule 5 of Order XIV CPC, to frame additional issues at any stage of the suit, till the judgment is rendered. Unlike in other steps, framing of issues, or for that matter, additional issues, is basically a task to be undertaken by the court. Even where the parties do not file an application, or insist on framing of any issue, or additional issue, the court would be competent and in some cases, under obligation to frame the issues,, as per its understanding of the controversy, between the parties.

14. The 1st respondent filed the certified copies of ex parte decree and judgment in O.S. No. 246 of 1985, in which a customary divorce, between the petitioner and late Gantaiah, is said to have been declared. If this is to be accepted, the entire claim of the petitioner falls to ground. The 1st respondent had also filed another document, which is the certified copy of the decree in O.P. No. 89 of 1980, to prove that she is the legally wedded wife of Gantaiah. This would also bring about a situation, which is completely adverse to the interest of the petitioner. The implication of these documents naturally assumes significance. The trial court, however, has taken a strange view of the matter and dismissed the I.A. It is apt to refer to the relevant paragraphs, under which the desirability, or otherwise of framing of first two additional issues, was considered.

3. The objection raised by the respondents are that the customary divorce agreement dt. 31.3.1983 was accepted by the I Additional Munsif Magistrate, Tenali in the decree and judgment dated 20.9.1985 in O.S. No. 246 of 1985 in which the petitioner herein and Gantaiah are parties. Since a competent court of law decided the fact with valid jurisdiction, on the same issue, trial shall not be conducted again, under doctrine of res judicata.

4. The factum of marriage between Gantaiah and 1st respondent was already decided in O.P. No. 89 of 1980 by the competent court of law as such no issue can be framed in this suit. So far as the proposed issue with regard to the will cannot be framed and decided by the court as the scope of this suit is very limited relating to the right of the petitioner to get the pensionery benefits of late Gantaiah.

15. In a way, it can be said that while refusing to frame additional issues, the trial court had unwittingly answered the same. It proceeded further and invoked the doctrine of res judicata. The learned Presiding Officer does not appear to have taken note of the fact that even a question as to whether the judgment in a particular case operates as res judicata in another suit, is a pure question of fact and must constitute the subject matter of an independent issue. Verification of important factors, such as, whether; (a) parties to both the proceedings were common; (b) subject matter of both the suits is one and the same; and (c) there was pronouncement on merits in the earlier suit; becomes necessary. Further, on account of his observations in the two paragraphs referred to above, the trial court had foreclosed the entire controversy in the suit. The strange part of it is that it did so, by taking two documents relied upon by the respondents, on theirface value. Though the approach of the trial court warrants little more serious comments, this court maintains restraint. This much, however, can be said that the observations in the two paragraphs referred to above, reflect either immaturity, or lack of regard to settled principles of law. The trial court was expected to be cautious and careful, particularly, when the controversy touched upon the matrimonial relationship of woman and the legal consequences thereof. There exists a clear necessity for framing of the two additional issues, referred to above.

16. C.R.P. No. 2424 of 2007 was filed, with a prayer to permit the petitioner to adduce evidence, touching upon the additional issues prayed for in I.A. No. 168 of 2007. In view of the finding of this court that the additional issues deserve to be framed, the petitioner must be given an opportunity to adduce evidence.

17. The other three revisions relate to summoning of the documents or witnesses, in the context of proof of the Will, dated 11.4.2002, relied upon by the 1st respondent. Since the respondents have stated that they do not intend to press their claim under the Will, the applications as well as the revisions filed against the Will become redundant.

18. For the foregoing reasons, C.R.P. No. 2423 of 2007 is allowed, and the order under revision is set aside. Consequently I.A. No. 168 of 2007 shall stand allowed to the extent of framing first two additional issues mentioned therein. C.R.P. No. 2424 of 2007 is allowed, and the order passed in I.A. No. 665 of 2007 is set aside. Consequently, the said IA shall stand allowed, and the petitioner shall be entitled to adduce evidence in relation to the two additional issues mentioned above. C.R.P. Nos. 2425,2426 and 2427 of 2007 are dismissed. There shall be no order as to costs.