Under which circumstances the high court can direct trial court to frame additional issues?

  Admittedly, there are specific pleadings of petitioner in

paragraph 9 of the plaint in respect of seeking injunction thereby

directing respondent Nos.1 and 2 to restrain the playground from being used for any purpose other than playing games and to designate officer of senior rank to supervise and restrain use of said playground from it’s use for any purpose other than playground. It is prayed in prayer clause ‘c’ of the plaint that,

“c] The Defendant No.2, by writ of mandatory injunction

be kindly directed to designate forthwith an officer of senior

rank to supervise and restrain use of the said playground for

any purpose other than games, and to ensure effective,

speedy & judicious redressal of grievance about the use of

the said playground for the purpose other than games.” {Para 6}

7. In the written statement filed by respondent Nos.1 and

2, it is stated that “….. the ground is used by nearby persons of the locality. However, there is no complaint from the persons of locality or defendant No.3, either to police or with this defendant in regards to the drinkers who are consuming liquor in the said ground. This defendant has no knowledge about the same and now will take appropriate steps and action for the safety of the persons residing there and the students.

8. Taking into consideration the pleadings of the parties,

plaintiff is justified in proposing issue in application Exhibit-31/D. While rejecting the application, Trial Court has failed to appreciate the pleadings of the parties in proper perspective. The impugned order to that extent is, therefore, unsustainable.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.13144 OF 2022

NAMDEV PANDURANG SHINDE VS THE COLLECTOR, AURANGABAD AND OTHERS

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 16th JUNE, 2023

1. By this petition filed under Article 227 of the

Constitution of India, petitioner challenges order dated 27/09/2022,

passed by learned Civil Judge, Senior Division (Corporation Court),

Aurangabad, below Exhibit-31/D in Regular Civil Suit No.40/2019,

thereby rejecting the application filed by petitioner/plaintiff for

recasting of the issues.

2. Petitioner/plaintiff filed the suit for mandatory injunction

against defendants/respondent Nos.1 to 3. The suit was resisted by

the defendants by filing written statements. The Trial Court framed

issues at Exhibit-24. Being dissatisfied with the issues framed by

the Trial Court, petitioner filed application Exhibit-31/D, thereby

proposing issue:

“Whether the plaintiff proves that he is entitled to get

mandatory and perpetual injunction for restraining use of

the playground for the purpose other than playground,

and for getting any senior officer of the senior rank

designated to supervise and restrain use of the

playground for any purpose other than playing games

and, to ensure effective, speedy and judicious redressal

of grievance about use of the said playground for the

purpose other than games”

He also prayed for deletion of issue No.1 in respect of

locus standi of the plaintiff and issuance of notice under Section 487

of the M.M.C. Act, which according to him, is not at all in dispute.

3. By the impugned order, trial Court rejected the

application. Hence, the present petition.

4. In fact, though the impugned order is passed below

Exhibit-31/D, it is wrongly mentioned as order below Exhibit-1.

5. Heard learned advocate for petitioner, learned advocate

for respondent No.2, learned advocate for respondent No.3 and the

learned Additional Government Pleader for respondent No.1.

Perused the writ petition memo, annexures thereto and the

impugned order.

6. Admittedly, there are specific pleadings of petitioner in

paragraph 9 of the plaint in respect of seeking injunction thereby

directing respondent Nos.1 and 2 to restrain the playground from

being used for any purpose other than playing games and to

designate officer of senior rank to supervise and restrain use of said

playground from it’s use for any purpose other than playground. It

is prayed in prayer clause ‘c’ of the plaint that,

“c] The Defendant No.2, by writ of mandatory injunction

be kindly directed to designate forthwith an officer of senior

rank to supervise and restrain use of the said playground for

any purpose other than games, and to ensure effective,

speedy & judicious redressal of grievance about the use of

the said playground for the purpose other than games.”

7. In the written statement filed by respondent Nos.1 and

2, it is stated that “….. the ground is used by nearby persons of the

locality. However, there is no complaint from the persons of locality

or defendant No.3, either to police or with this defendant in regards

to the drinkers who are consuming liquor in the said ground. This

defendant has no knowledge about the same and now will take

appropriate steps and action for the safety of the persons residing

there and the students.

This defendant has received notice by Regd. Post A/D

from the plaintiff. The broken portion of the well is closed by iron

net and iron bars (yks[kaMh tkGh) and green net is also covered on it.

The ground is under use of the school as a play ground to it’s

students, should have kept security guard for stopping un-social

work.”

8. Taking into consideration the pleadings of the parties,

plaintiff is justified in proposing issue in application Exhibit-31/D.

While rejecting the application, Trial Court has failed to appreciate

the pleadings of the parties in proper perspective. The impugned

order to that extent is, therefore, unsustainable.

9. So far as the second prayer in the application Exhibit-

31/D is concerned, learned advocate for respondent No.2 submits

that though receipt of notice issued by R.P.A.D. is admitted by the

second respondent, the legality of said notice is being contested

and therefore, let the issue No.4 be there. Respondent No.2 is

entitled to contest the issue of legality of notice before the Trial

Court and therefore, it would be appropriate to let the issue No.4 be

as it is.

10. For the aforestated reasons, writ petition is partly

allowed. The impugned order dated 27/09/2022, passed below

Exhibit-31/D in Regular Civil Suit No.40/2019, to the extent it

rejects prayer of the petitioner to frame the proposed issue, is

hereby quashed and set aside. Application Exhibit-31/D is allowed.

Trial Court is directed to frame the proposed issue mentioned in

application Exhibit-31/D.

(NITIN B. SURYAWANSHI, J.)

Print Page