Saturday, 10 September 2016

When it is necessary to frame specific issues for fair disposal of suit?

The   present   appeal   is   against   judgment   and   order
dated 5.7.2014 whereby learned Principal District Judge, Gondia
in Regular Civil Appeal No.50 of 2013 was pleased to remand the
proceedings to the trial Court with a direction to the trial Court
to frame the issue in respect of custom pleaded  by the plaintiff in
paragraph No.3­A of the plaint.  Learned trial Judge was further
directed   to   frame   specific   issue   in   respect   of   validity   of   the
customary divorce in Teli community and to deal with the same
to hear and decide the suit expeditiously within a period of three

months.  According to learned counsel for the appellant, the trial
Court had framed the issue, thus :
Does the plaintiff prove that she is legally
wedded wife of deceased Khushal and a
member   of   joint   Hindu   family   of
Pandurang?
According to learned counsel for the appellant the said
issue   was   comprehensive   and   specific   issue   as   to   validity   of
customary divorce amongst Teli community was not necessary.
He has placed the reliance in the case of  Kannam (Dead) by
L.Rs. and anr. ..vs.. V.S. Pandurangam (Dead) by L.Rs. and
Ors. reported at AIR 2008 SC 951.  Learned counsel points out
to paragraph Nos.11 and 12 of the ruling cited (supra) to canvass
his submission that even if no specific issue has been framed but
if the parties are aware of that issue and have led evidence on it,
the Appellate Court should not interfere with the findings of the
trial court.
Learned counsel making reference to the observations
in   paragraph   No.6   in   the   case   of  Nedunuri

Kameswaramma ..vs.. Sampati Subha Rao, reported at AIR
1963 SC 884(1) submits that since the parties went to trial fully
knowing   the   rival   case   and   led   all   the   evidence   not   only   in
support of their contentions but in refutation of those of the other
side, it cannot said that the absence of an issue was fatal to the
case,   or   that   there   was   mix­trial   which   vitiates   proceedings.
Learned counsel thus submits that there is no need to remand
the matter back to the trial Court.
3. The ruling in the case of Kannam (Dead) by L.Rs. and
anr cited (supra) was in respect of Civil Appeal Nos.5472­5475 of
2001 before the Apex Court and the Court was considering the
cases of Madras High Court in second appeal while the ruling in
the   case   of  Nedunuri   Kameswaramma  the   Apex   Court   was
considering   the   special   leave   against   a   judgment   in   second
appeal   of   the   High   Court   of   Andhra   Pradesh.     Here,   in   the
present case, it appears that no specific issue was framed by the
trial Court regarding validity of the customary divorce in Teli

community to which the parties belong.  The issue was material
but was not specifically framed in the facts and circumstances of
the present case.  Therefore, learned District Judge found that no
specific issue was framed regarding validity of the customary
divorce in Teli community.   Therefore, the parties cannot have
full idea while the proceeding was pending in the trial Court to
lead necessary evidence regarding validity of customary divorce
in  Teli  community.    Unless  the  parties can  be imputed  with
notice   as   to   the   issue   of   validity   of   the   customary   divorce
permitted in Teli community as per customs prevalent in it, such
customs could not have been established to the satisfaction of the
trial Court.  The parties must be put to notice of the specific issue
framed which may enable the parties to avail of the opportunity
to prove  validity of customary divorce in Teli community.   The
issue which was framed to the effect that,  “does the plaintiff
prove that she is legally wedded wife of deceased Khushal and a
member   of   joint   Hindu   family   of   Pandurang?”    was   not
comprehensive enough to impute notice to the parties to prove

whether the customary divorce is valid amongst Teli community.
That being so, since the trial Court had partly decreed the suit
and restrained defendant Nos.1 to 4 by permanent injunction
from disturbing peaceful possession of plaintiff over two rooms of
the house no.506 at village Murri without following due process
of law, in appeal the issue as to validity of the customary divorce
in Teli community was under consideration and the appellate
Court found that there was no such specific issue framed by the
trial Court.  Therefore, it would be in the larger interest of justice
if   the   parties   are   made   aware   that   they   were   required   to
establish validity of the customary divorce in Teli community
and they were given full opportunity by learned appellate Judge
to approach the trial Court so as to frame the specific issue and
call upon the parties to lead necessary evidence in support of
their contentions and then to decide the suit finally.  There was
nothing wrong in the impugned judgment and order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.3 OF 2015
Sitabai Wd/o Pandurang Yerne

Vs
 Durgabai wd/o Khushal Yerne

CORAM : A. P. BHANGALE, J. 
DATE : JULY 6, 2015

Citation:2016(4) ALLMR 316

1.    Heard learned counsel for the rival parties. By consent
of learned counsel for both the parties the matter is taken up for
final hearing.
2. The   present   appeal   is   against   judgment   and   order
dated 5.7.2014 whereby learned Principal District Judge, Gondia
in Regular Civil Appeal No.50 of 2013 was pleased to remand the
proceedings to the trial Court with a direction to the trial Court
to frame the issue in respect of custom pleaded  by the plaintiff in
paragraph No.3­A of the plaint.  Learned trial Judge was further
directed   to   frame   specific   issue   in   respect   of   validity   of   the
customary divorce in Teli community and to deal with the same
to hear and decide the suit expeditiously within a period of three

months.  According to learned counsel for the appellant, the trial
Court had framed the issue, thus :
Does the plaintiff prove that she is legally
wedded wife of deceased Khushal and a
member   of   joint   Hindu   family   of
Pandurang?
According to learned counsel for the appellant the said
issue   was   comprehensive   and   specific   issue   as   to   validity   of
customary divorce amongst Teli community was not necessary.
He has placed the reliance in the case of  Kannam (Dead) by
L.Rs. and anr. ..vs.. V.S. Pandurangam (Dead) by L.Rs. and
Ors. reported at AIR 2008 SC 951.  Learned counsel points out
to paragraph Nos.11 and 12 of the ruling cited (supra) to canvass
his submission that even if no specific issue has been framed but
if the parties are aware of that issue and have led evidence on it,
the Appellate Court should not interfere with the findings of the
trial court.
Learned counsel making reference to the observations
in   paragraph   No.6   in   the   case   of  Nedunuri

Kameswaramma ..vs.. Sampati Subha Rao, reported at AIR
1963 SC 884(1) submits that since the parties went to trial fully
knowing   the   rival   case   and   led   all   the   evidence   not   only   in
support of their contentions but in refutation of those of the other
side, it cannot said that the absence of an issue was fatal to the
case,   or   that   there   was   mix­trial   which   vitiates   proceedings.
Learned counsel thus submits that there is no need to remand
the matter back to the trial Court.
3. The ruling in the case of Kannam (Dead) by L.Rs. and
anr cited (supra) was in respect of Civil Appeal Nos.5472­5475 of
2001 before the Apex Court and the Court was considering the
cases of Madras High Court in second appeal while the ruling in
the   case   of  Nedunuri   Kameswaramma  the   Apex   Court   was
considering   the   special   leave   against   a   judgment   in   second
appeal   of   the   High   Court   of   Andhra   Pradesh.     Here,   in   the
present case, it appears that no specific issue was framed by the
trial Court regarding validity of the customary divorce in Teli

community to which the parties belong.  The issue was material
but was not specifically framed in the facts and circumstances of
the present case.  Therefore, learned District Judge found that no
specific issue was framed regarding validity of the customary
divorce in Teli community.   Therefore, the parties cannot have
full idea while the proceeding was pending in the trial Court to
lead necessary evidence regarding validity of customary divorce
in  Teli  community.    Unless  the  parties can  be imputed  with
notice   as   to   the   issue   of   validity   of   the   customary   divorce
permitted in Teli community as per customs prevalent in it, such
customs could not have been established to the satisfaction of the
trial Court.  The parties must be put to notice of the specific issue
framed which may enable the parties to avail of the opportunity
to prove  validity of customary divorce in Teli community.   The
issue which was framed to the effect that,  “does the plaintiff
prove that she is legally wedded wife of deceased Khushal and a
member   of   joint   Hindu   family   of   Pandurang?”    was   not
comprehensive enough to impute notice to the parties to prove

whether the customary divorce is valid amongst Teli community.
That being so, since the trial Court had partly decreed the suit
and restrained defendant Nos.1 to 4 by permanent injunction
from disturbing peaceful possession of plaintiff over two rooms of
the house no.506 at village Murri without following due process
of law, in appeal the issue as to validity of the customary divorce
in Teli community was under consideration and the appellate
Court found that there was no such specific issue framed by the
trial Court.  Therefore, it would be in the larger interest of justice
if   the   parties   are   made   aware   that   they   were   required   to
establish validity of the customary divorce in Teli community
and they were given full opportunity by learned appellate Judge
to approach the trial Court so as to frame the specific issue and
call upon the parties to lead necessary evidence in support of
their contentions and then to decide the suit finally.  There was
nothing wrong in the impugned judgment and order.
4. In  view  of  above,  I  do not   find  any  impropriety   or

illegality in the order impugned in this appeal so as to disturb or
interfere with the impugned order as both the parties will have
full opportunity to lead necessary evidence in the trial Court to
invite the decision on merits in respect of their rival contentions.
The appeal is, therefore, dismissed with costs.
                                                                JUDGE

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