(2025:HHC:16483) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 49 of 2021 Decided on : 28 th May, 2025. Tajjan ...Petitioner. Versus Mumtaz Ali & Ors. ....Respondent. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the petitioner: Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. Virender Chauhan, Senior Advocate, with Mr. Arthav Gharaik, Advocate. Satyen Vaidya, Judge (Oral). Heard. 2. By way of instant petition, petitioner has assailed order dated 15.12.2020 passed by the learned Senior Civil Judge, Court No.1, Paonta Sahib, District Sirmaur, H.P. in case No.367/1 of 2013 titled as “Smt. Tajjan vs. Mumtaz Ali & Ors.”, whereby the application of respondents under Order 14 Rule 5 of the Code of Civil Procedure (in short the Code) has been allowed. 1 Whether reporters of the local papers may be allowed to see the judgment? (2025:HHC:16483) 3. Petitioner herein is the plaintiff in Civil Suit No.367/1 of 2013 pending on the files of learned Senior Civil Judge, Court No.1, Paonta Sahib, District Sirmaur, H.P. She has filed the suit for declaration that on the death of Sh. Munji, the entire suit property came to be inherited by the plaintiff and defendants as Sh. Munji had died intestate. Plaintiff has further sought a declaration that Sh. Munji was not legally competent to execute the release deeds dated 07.06.2001 and 27.01.2009 and gift deed dated 04.04.2001 and therefore, all such transactions and the mutations attested on its basis were wrong, illegal, void and inoperative against the rights of plaintiff. As a consequence, a decree of permanent prohibitory injunction has also been claimed. 4. The defendants are contesting the suit by filing a written statement. An amendment to written statement has also been caused during the pendency of the suit. From the stand taken by the defendants in their written statement, it becomes evident that they have defended the action of Munji, whereby the gift and release deeds were executed by him. The defendants are claiming right, title and interest in the suit …2… (2025:HHC:16483) property only on the basis of gift and release deeds, which have been challenged by the plaintiff in the suit. 5. Additionally, in para 4 of the written statement, an averment has been made by the defendants that Munji had executed a Registered Will in favour of defendant No.1 on 13.06.1990. It will be relevant to notice the exact text of para 4 of the written statement as under:- “That the para No. 4 of the plaint is incorrect, wrong, hence denied. Sh. Munji has transferred his entire share in the suit land in favour of defendant No.1 during his life time, through registered title deeds due to love and affection with his son i.e. defendant No.1 and he has also executed the will of other land in favour of defendant No.1. Sh. Munji was very much competent to transfer his land in favour of any person during his life and the plaintiff never objected said Sh. Munji during his life to transfer the said land in favour of defendant No.1. The plaintiff and proforma defendants have no right, title and interest in the suit land in any manner. The deceased Munji the father of the defendant No.1 had executed and registered a will of his entire movable and immovable property in favour of the defendant No.1 on 13/06/1990, which is registered in the office of Sub Registrar Paonta sahib. The said will is legal, valid and genuine.” …3… (2025:HHC:16483) 6. On the basis of the aforesaid averments made in para 4 of the written statement, the defendants filed an application under Order 14 Rule 5 of the Code before learned Trial Court with a prayer to frame an additional issue as under:- “a) Whether the Will No.90 dated 13.6.1990 is legal, valid and genuine and binding upon the plaintiff and performa defendant?” 7. It was averred in the application that while preparing the case for the evidence of defendants, learned counsel for defendants found out the omission. According to defendants, the issue was required to be framed as it was necessary for decision of the case. It was also submitted that in the event of non-framing of the proposed issue there will be multiplicity and prolongation of litigation between the parties. 8. Plaintiff contested the application by raising the objection that the application was highly belated and was not maintainable, more particularly for the reason that the plaintiff had already completed her evidence. The plaintiff also submitted that framing of additional issue of Will had no …4… (2025:HHC:16483) bearing on the fate of the case, as the challenge was only to the gift and release deeds executed by Munji. 9. Learned Trial Court vide impugned order has allowed the application and has framed additional Issue No.5 as under:- “5-A) Whether the Will No.90 dated 13.06.1990 is legal, valid and genuine and binding upon the plaintiff and proforma defendants and to what extent?” 10. As noticed above, the challenge in the suit is only to the gift and release deeds executed by Munji. The defendants are also claiming right, title and interest in the suit property only on the basis of the transfers made by Munji during his lifetime in favour of defendants by way of gift and release deeds. 11. By way of the averments made in para 4 of the written statement, the defendants have only narrated a fact regarding existence of Registered Will executed by Munji in favour of defendant No.1. No right has been claimed on the basis of the Will. There also is no plea of the defendants that they will be entitled to the suit property on the basis of Will …5… (2025:HHC:16483) regarding which the reference is made in para 4 of the written statement. 12. Order 14 Rule 1 of the Code of Civil Procedure reads as under:- Rule 1: Framing of issues— (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. (4) Issues are of two kinds: (a) issues of fact, (b) issues of law. (5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. …6… (2025:HHC:16483) (6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.” 13. The Court is vested with the jurisdiction to frame an issue, when material proposition of fact or law is affirmed by one party and denied by the other. In the instant case, such material proposition would have arisen only if the defendants had alleged any right to defend themselves in the suit on the basis of the Will. Since, the defendants have not come up with any such defence, the issue as farmed by learned Trial Court by way of impugned order could not have been framed. 14. In result, the petition is allowed. Order dated 15.12.2020 passed by the learned Senior Civil Judge, Court No.1, Paonta Sahib, District Sirmaur, H.P. in case No.367/1 of 2013 titled as “Smt. Tajjan vs. Mumtaz Ali & Ors.” is set aside and the application of the defendants for framing of additional issue under Order 14 Rule 5 of the Code is dismissed. …7… (2025:HHC:16483) 15. Parties to appear before learned Trial Court on 09.06.2025. 16. The petition is accordingly disposed of so also all miscellaneous application(s), if any. (Satyen Vaidya) Judge 28th May, 2025. (rupsi) …8…