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A. Dhanasekaran-vs-V.K.O. Ramanathan Chettiyar And on 27 July, 2005

Madras High Court A. Dhanasekaran-vs-V.K.O. Ramanathan Chettiyar And on 27 July, 2005
Author: R Banumathi
Bench: R Banumathi

ORDER

R. Banumathi, J.

1. This revision arises out of the order of the Principal Subordinate Judge, Salem, dated 27.03.2001, made in I.A.No. 169/2000 in O.S.No. 569/1995, dismissing the petition filed under Order 14, Rule 5 CPC to frame additional issues. Plaintiff is the Revision Petitioner.

2. Plaintiff is the youngest son of late Arthanarisamy Chettiar. The second Defendant Vijayalakshmi married the Plaintiff’s elder brother Balasubramanian in 1977. Differences arose between the spouses. The second Defendant has lodged a criminal complaint alleging demand of dowry and dowry harassment – under Section 4 and 6 of Dowry Prohibition Act and Section 498A IPC. On the basis of the complaint, a case was registered in Cr.No. 1967/1987. In connection with the said case, the Plaintiff was arrested on 19.11.1987 at about 9 am, at his home and he was paraded on the road and later remanded to judicial custody. Later, the police did not prosecute Cr.No. 1967/1987. Further proceedings in Cr.No. 1967/1987 was dropped on 28.11.1994. The Plaintiff and his family members were absolved of the charges.

3. O.S.No. 569/1995:-

The Plaintiff has filed this suit claiming damages of Rs. 2,00,000/- for malicious prosecution. According to the Plaintiff, at the time of his arrest, he was subjected to humiliation by parading him in the street. He has suffered mental stress and pain coupled with torture during his remand period. News was given in Malai Murasu and in Daily Thanthi. The second Defendant had also implicated the Plaintiff in her civil proceedings against her husband Balasubramaniam in O.P.No. 108/1987 for maintenance and for return of jewels. That suit has been filed not only against Balasubramaniam, but also against other family members. Contending that by the confinement for six days in prison, he has lost his prestige and that his marriage proposals were abandoned, the Plaintiff has filed this suit claiming damages of Rs. 2,00,000/-.

4. Denying the allegations in the Plaint, the Defendants have filed the Written Statement alleging that there was demand of dowry by the parents of Balasubramaniam and by the Plaintiff and his sister Santhakumari. While the second Defendant was living with her husband and in-laws, she was subjected to cruelty and ill-treatment demanding for more money and jewels. Hence the second Defendant had lodged the complaint on the basis of which, a case was registered in Cr.No. 1967/1987 in Shevapet Police Station. No charge sheet was filed in the Court. The Defendants are not aware of the arrest of the Plaintiff. Whatever was alleged in the complaint by the second Defendant was true and that the Plaintiff cannot claim that a false case has been lodged against him.

5. Further case of the Defendants is that claiming maintenance and recovery of dowry articles, the second Defendant has filed Pauper O.P.No. 108/1987, which was subsequently registered as O.S.No. 153/1998. The Plaintiff’s brother Balasubramaniam has also filed an application in H.M.O.P.No. 146/1987 for dissolution of his marriage with the second Defendant. On 22.03.1993, there was a general compromise of all the issues between the families. By virtue of compromise, the HMOP was allowed and the marriage was ordered to be dissolved. As per the maintenance, the second Defendant was given Rs. 15,000/- by her husband. Endorsement was made in the suit (as elaborated in paragraph No. 17 of the Written Statement). By the compromise, all the civil and criminal cases between the parties are settled and that in future, no body should file any case against one another. While so, the Plaintiff is estopped from filing the suit after the said compromise. Since the compromise is a general compromise of all the issues, the Plaintiff is not entitled to file the suit and is not entitled to claim damages of Rs. 2,00,000/-. On the above pleadings, the three issues were framed.

6. I.A.No. 169/2000:-

Plaintiff has filed this application under Order 14 Rule 5 CPC to frame additional issues. According to the Plaintiff, three issues already framed would not be sufficient to focus the attention of the Court to the entire controversy in dispute. It was further alleged that in the absence of proper issues covering all the pleas raised in the pleadings, there cannot be effective adjudication and that there is a necessity to frame the additional issues covering all the pleas set forth in the pleadings. Along with the application, the Plaintiff has filed as many as ten additional issues (on 03.03.1999) and three additional issues (on 04.03.1999).

7. The Defendants have resisted the application contending that the issues already framed by themselves would determine the issues. It is further held that the additional issues submitted reflect the same issues which are already framed and that it is not necessary to frame such elaborate issues and hence the additional issues sought to be framed are unnecessary and baseless.

8. Upon consideration of the contentions raised in the petition and the counter statement, the learned Subordinate Judge found that all the additional issues sought to be framed have been already covered under Issue No. 1. It was further held that Issue No. 3, regarding compromise is a comprehensive issue covering all such relevant aspects regarding the compromise. Finding that “it is not the total number of issues that matters, but whether the dispute could be decided, giving finding to the issues”, the lower court found that draft issues suggested by the Plaintiff need not be framed as additional issues and dismissed the application.

9. Aggrieved over the dismissal of the application and declining to frame additional issues, the Plaintiff has preferred this revision. The learned counsel for the revision petitioner has submitted that the issue already framed do not reflect the entire pleadings on record and that the parties are to be given an opportunity to request the Court to frame additional issues to enable them to adduce proper evidence. Submitting that in the suit for damages for malicious prosecution, issue regarding mental pain and shock is very much necessary, the learned counsel for the revision petitioner contended that under the draft issues submitted by the Plaintiff, Issue No. 2 is very much essential. It is further submitted that in the reply statement the Plaintiff has adopted the Defendants’ stand that compromise in O.S.No. 153/1988 was recorded without any specific direction from the Plaintiff and that the compromise is not binding on the Plaintiff and that necessary issue is to be framed on that point. Submitting that the general issue framed regarding the maintainability of the suit in view of prior compromise is vague and general, the learned counsel for the revision petitioner has contended that the issues already framed would not be sufficient covering the entire pleadings.

10. Countering the arguments, the learned counsel for the Respondents/Defendants has submitted that the issues already framed cover all the pleading put-forth by the parties. It is further submitted that issue No. 1 already framed, “Whether the Plaintiff is entitled to the damages as claimed in the suit ?”, would cover the entire pleadings put-forth by the parties. It is further contended that the Issue No. 2 regarding the maintainability of the suit in view of the compromise would cover the aspect of compromise put-forth by the parties.

11. Upon consideration of the contentious points urged by the parties, the impugned order, issues already framed and the draft issues filed by the Petitioner and other materials on record, the following points arise for consideration in this revision :-

(a)Whether the issues already on record reflect the pleadings ?

(b)Whether the issues are to be recast by framing additional issues as contended by the Plaintiff?

– And –

(c)Whether the impugned order declining to frame additional issues suffers from material irregularity warranting interference ?

12. Already the Court below has framed the following three issues :-

1.Whether the Plaintiff is entitled to the suit amount by way of damages ?

2.Whether the present suit was maintainable for the view of the earlier compromise between in the parties ?

3.To what relief ?

14. In the Plaint, in paragraph No. VI, the Plaintiff has alleged that he was arrested on 19.11.1987 and that he was paraded in the streets and was remanded to judicial custody and was confined to prison for about six days. He has further alleged that his arrest in Cr.No. 1967/ 1987 was widely published in Tamil Dailies – Malai Murasu and Daily Thanthi. The Plaintiff has alleged that his arrest and parading in street, and the subsequent publishing in newspapers has caused him mental suffering and pain. In the Written Statement, the Defendants have denied the same contending that the second Defendant was justified in preferring the complaint in view of demand of dowry, cruelty and ill-treatment. In that situation, there is need to frame a issue regarding the material facts, alleged by one side and denied by the other.

15. Claim of compensation depends upon the mental shock and pain alleged by the Plaintiff. While so, the first issue already framed, “Whether the Plaintiff is entitled to the suit amount by way of damages ?”, is a very general issue not to the point, in covering the entire pleadings. That general issue would not be sufficient to determine the real points in controversy between the parties viz., that the Plaintiff was subjected to mental suffering, pain and torture. In the draft issues submitted by the Plaintiff, draft issue No. 2 reads :-

“Whether the Plaintiff suffered mental pain and shock ordeals, loss of prestige and reputation on account of police complaint dated 18.11.1987 (Cr.No. 1967/87) given to the Inspector of Police, Shevapet, Salem by the Defendants ?”

The above issue covers the pleadings regarding the mental pain, shock, as alleged by the Plaintiff. Only by framing the above issue, the Plaintiff would be able to adduce the evidence on the above aspect.

16. Denying the allegation in the plaint, the Defendants have put-forth the defence plea, elaborately referring to the general compromise on 22.03.1993 settling all the issues between the families. According to the Defendants, in view of the compromise, the second Defendant’s husband Balasubramaniam had reiterated the compromise in HMOP No. 146 /1987 and that HMOP was allowed and the marriage was absolved. Pursuant to the compromise, the second Defendant was given a sum of Rs. 15,000/- towards maintenance. Joint endorsement was made in O.S.No. 153/1988. The details of the compromise is elaborated in paragraph No. 17 of the Written Statement. Further, according to the Defendants, in view of the compromise and the joint endorsement, all the civil and criminal cases between the parties had been settled and in that view of compromise, nobody should file any case against each other. The Defendants have also raised the plea that the Plaintiff is estopped from filing the suit after the general compromise. It is stated that Mr. Perumal, Plaintiff’s counsel has signed in the compromise on behalf of the Plaintiff and that the compromise is binding on the Plaintiff. In the Reply Statement filed by the Plaintiff, the Plaintiff has denied any such compromise on his behalf by his counsel Mr. Perumal. In the Reply Statement, the Plaintiff has alleged that he is neither a party nor a signatory to the compromise and that he has not been enquired into about his consent regarding the alleged compromise. The Plaintiff has further alleged that the plea of estoppel could not be raised against him. Thus by a careful consideration of the pleadings of the parties, it is made clear that the compromise had been asserted by the Defendants and the same is denied by the Plaintiff. Issue No. 3 already framed, “Whether the present suit is maintainable in view of the earlier compromise between the parties ?” is vague and general. That general issue would not clinch the real or material points in controversy. The Plaintiff denies the endorsement of his counsel in the compromise on his behalf. In the draft issues filed by the Plaintiff, issue No. 7 would cover the issue of compromise and reiterate the compromise signed on behalf of the Plaintiff by his counsel. In that view of the matter, it would be fit to order framing the following additional issue:

“Whether the endorsement made in O.S.No. 153/ 1988 on the file of Sub Court, Salem by the counsel in the absence of any specific direction from the Plaintiff will stand the scrutiny and as per amended Act under Order 23, Rule 3 of CPC ?”

17. Issues are framed for a right decision of the case with an object to pinpoint the real and substantial points of difference between the parties, specifically emerging out of the pleadings. The object of framing the issue is to bring the evidence, arguments and the decision to a particular question so that there would be no doubt as to what is the dispute. The correct decision of the civil litigation largely depends upon the correct framing of issues. On the importance of framing correct issues, in (Makhan Lal Bangal v. Manas Bhunia), the Supreme Court has held thus :

“An obligation is cast on the Court to read the plaint/petition and the Written Statement/ counter, if any, and then determine with the assistance of the learned counsel for the parties, the material proposition of fact or law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the Court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The Judgment, then proceeding issues-wise would be able to tell precisely how the dispute was decided”.

18. As discussed earlier, the issues already on record do not reflect the pleadings on record. Specific issues have not been framed. Hence the additional issues are to be framed as discussed earlier. The Subordinate Judge was not right in declining to frame the Additional issues. The impugned order suffers from material irregularity and cannot be sustained.

19. For the reasons stated above, the order of the Principal Subordinate Judge Salem in I.A.No. 169/2000 in O.S.No. 569/1995 (dated 27.03.2001) is set aside and this revision is allowed. Consequently, C.M.P.No. 10107/2001 is closed. In the circumstances of the case, there is no order as to costs.

20.The Principal Subordinate Judge, Salem, is directed to frame the following additional issues as issues 4 and 5.

“Whether the Plaintiff suffered mental pain and shock ordeals, loss of prestige and reputation on account of police complaint dated 18.11.1987 (Cr.No. 1967/87) given to the Inspector of Police, Shevapet, Salem by the Defendants ?”

“Whether the endorsement made in O.S.No. 153/ 1988 on the file of Sub Court, Salem by the counsel in the absence of any specific direction from the Plaintiff will stand the scrutiny and as per amended Act under Order 23, Rule 3 of CPC ?”

The learned Principal Subordinate Judge is further directed to expedite trial in O.S.No. 569/1995 and dispose of the suit expeditiously in accordance with law.

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