State Of H.P. And Others v. Baldev And Others S

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 6 of 2014

Reserved on: 05.10.2015

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Decided on: 14.10.2 . 01 P 5

State of H.P. and others … A H ppellants. Versus Baldev and others o f …Respondents. Coram

The Hon'ble Mr. Justice Mans r oor t Ahmad Mir, Chief Justice.The Hon'ble Mr. Justice T u arlok Singh Chauhan, Judge.Whether approved for reporting? Yes. For the appella C nts: o Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, with Mr. J.K. Verma, Deputy Advocate General. Fo g r the h respondents: Mr. Tara Singh Chauhan, Advocate, i

for the respondents.

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Mansoor Ahmad Mir, Chief Justice. Challenge in this Regular Second Appeal is to the judgment and decree, dated 19.03.2013, made by the District Judge, Mandi, District Mandi, H.P. (for short "the First

Appellate Court") in Civil Appeal No. 5 of 2012, titled

as Baldev and others versus State of H.P. and others (for short

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"the impugned judgment") on the grounds taken in the memo of appeal.

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2. Mr. T.S. Chauhan, Advocate, appeared on behalf P of the respondents on 01.01.2014 and the following substa.ntial questions of law came to be framed:

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"1. Whether the findin o gs off First Appellate Court below are vitiated and are illegal for want of proper pleadings and proo t f?

2. Whether the Ld. First Appellate Court bel u ow hars failed in error of law in o entertaining the suit beyond the period of limitation? C 3. Whether the findings given by Ld. Court below is both against the case as well as documentary evidence on record?

gh ^4. Whether without pleadings ^and i

evidence relief ^for compensation could have been granted by the ^Ld.First Appellate Court?

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5. Whether the findings of Appellate Court below is liable to be set aside in view of common judgment dated 2-3-2013 passed by Full Bench of Hon'ble High Court of HP in CWP No. 1966 of 2012-C titled Shankar

Dass alias Shankru and others, 85

connected cases. Hence the same on

limitation grounds is liable to be set

aside."

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3. It is necessary to give a flashback of the case, the womb of which has given birth to the appeal in hand.

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4. Plaintiffs-respondents, i.e. Dile Ram and Sanehr P u, filed Civil Suit No. 173 of 2005 before the Civil Jud H ge (Se.nior Division), Sarkaghat, District Mandi, H.P. (for f sh ort "the trial Court") against the defendants-appell an o ts for grant of decree of permanent prohibitory injunction and mandatory injunction in terms of the mandate of Sect r ionts 38 and 39 of the Specific

Relief Act on the grounds t u aken in the plaint, which can aptly

and precisely be enum o erated as under:

5. P la C intiffs-respondents have pleaded that they are in joint h ownership and possession of the land comprising in

i^Kg hata No. 3 min, Khatauni No. 3 min, Khasra No. 304, land measuring 0-57-29 hectares situated in Mauza Harwan/514,

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Illaqua Hatli, Tehsil Sarkaghat, District Mandi, H.P. (for short "the suit land") alongwith other co-sharers and the defendants-appellants are strangers, have started to construct Talwar-Harwan link road over the suit land. Further pleaded

that the survey was conducted and the defendants-appellants

are bent upon to construct the road upon the land of the

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plaintiffs-respondents and other co-sharers, i.e. subject matter of the suit, thereby causing damage. Requests were made to

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the defendants-appellants not to construct the said road, b P ut they continued with the construction work. The plain.tiffs- respondents are in possession to the extent of th eirH share and in case, the defendants-appellants a re o not

f restrained, the plaintiffs-respondents will suffer irr t eparable loss. 6. It has further been p r leaded that the cause of action had accrued to the plaintif u fs-respondents on 05.07.2005, when

the defendants-appell o ants started construction of the road.

7. The C plaintiffs-respondents have prayed that decree of perm h anen t prohibitory injunction be granted restraining the

i^deg fendants-appellants permanently from constructing the road over the suit land or changing the nature of the same in any

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manner ^{and have also} prayed ^{that in} case, during ^the pendency of the suit, the defendants-appellants forcibly take the possession or change the nature of the suit land, decree of mandatory injunction be passed commanding the defendants-

appellants to hand over the possession of the suit land to the

plaintiffs-respondents.

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8. The suit was resisted by the defendants-appellants by the medium of the written statement and the plaintiffs-

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respondents have also filed replica/rejoinder.

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9. Following issues were framed by the tri H al Cou.rt on 21.09.2007:

"1. Whether the plaintiffs o are enftitled to the relief of perman ent prohibitory injunction as prayed for? OPP

2. Whether the pla t intiffs are entitled to the rel u ief of r mandatory injunction as prayed for? OPP3. o Whether the suit is not maintainable in the present form as C alleged? OPD 4. Whether the plaintiffs have no h

legal cause of action to file the present suit against the defendants g

as alleged? OPD i

5. Whether the suit is not properly valued for the purpose of court fee H

and jurisdiction as alleged? OPD 6. Whether this Court has no jurisdiction to entertain and try the present suit as alleged? OPD

7. Whether the plaintiffs have served the replying defendants with legal and valid notice under section 80 CPC as alleged? OPD

8. Whether the suit is bad for non joinder of necessary parties as

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alleged? OPD

9. Whether the plaintiffs have no locus standi to file the present suit as

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alleged? OPD

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10. Relief."

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10. Parties have led evidence before th f e t ria H l Court.11. After hearing the learned counsel for the parties and scanning the evidence and the pl ea o dings, the trial Court

dismissed the suit vide judgmen r t an t d order, dated 28.11.2011, constraining the plaintiffs- u respondents to file Civil Appeal No. 5 of 2012 in terms of o the mandate of Section 96 of the Code of Civil Procedur C e (for short "CPC") before the District Judge, Mandi, h which was partly allowed vide impugned judgment, the ju g dgment and decree, dated 28.11.2011, made by the trial i Court was partly modified and it was held that the plaintiffs-

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respondents are entitled to possession, but instead of granting the decree of possession, directed the defendants-appellants to pay the compensation after making the assessment within six months from the date of the impugned judgment, in default, to

hand over the possession of the suit land to the plaintiffs-

respondents.

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12. Heard.

13. We are of the considered view that the impugned

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judgment is illegal and the First Appellate Court has falle . n P in an error for the following reasons:

14. The plaintiffs had to prove that t heHy were in possession of the suit land, have failed to provef the same. Both the Courts below have held that the r oaod was constructed in the year 2000 and the plaintiffs r wetre not in possession on the date of the filing of the suit u , i.e. 10.08.2005.

15. It is apt t o o reproduce relevant portion of para 25 of the impugne d j C udgment and decree herein: h

"25. In such a situation, this Court has no hesitation to hold that the plaintiffs g

are not entitled for the relief for i

permanent prohibitory injunction as the road has already been constructed by H

the defendants in this case over the suit land. PW-1 Dile Ram himself admitted the fact that the road was constructed in the year 2000. The plaintiffs have not been able to prove the fact that the construction was raised during the pendency of the suit................"

16. It is beaten law of land that when the plaintiff fails to prove possession in a suit for permanent prohibitory injunction or mandatory injunction, the suit is to be dismissed.

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17. Our this view is fortified by the decision of the Apex Court in the case titled as Ramji Rai & Anr. versus

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Jagdish Mallah (Dead) through L.Rs. & Anr., reporte . d P in

2007 AIR SCW 599. It is apt to reproduce paras 1 H 0 and 11 of the judgment herein:

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"10. On the finding of fa o cts, we do not wish to interfere. T t here is no reason to reverse the concurring findings. However, suffi r ce it to state that the lower appellate court should have dismissed u the suit filed by the appellants only on the ground that the app o ellants had failed to prove that they were in possession of the disputed C lands. Under Section 38 of the Specific Relief Act, 1963 an injunction restraining disturbance of possession will not be granted in favour of the h

plaintiff who is not found to be in possession. In the case of a permanent g

injunction based on protection of i

possessory title in which the plaintiff alleges that he is in possession, and H

that his possession is being threatened by the defendant, the plaintiff is entitled to sue for mere injunction without adding a prayer for declaration of his rights [See: Mulla's Indian Contract and Specific Relief Acts, 12th Edn., page 2815]

11. In the case of A.L.V.R. Ct. Veerappa Chettiar v. Arunachalam Chetti and others, AIR 1936 Madras 200, it has been held that mere fact that the question of title may have to be gone

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into in deciding whether an injunction can be given or not is not any justification for holding that the suit is for a declaration of title and for

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injunction. There can be a suit only for an injunction. The present suit is only

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for permanent injunction and,

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therefore, the lower appellate court should have, on the facts and circumstances of this case, confinHed itself to its dismissal only on the gr ound that the appellants have o failedf to show that they were in pos session. This has been done but the declaration that the appellants are not the owners, was not necessary."

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18. The Apex Cour u t in trhe case titled as Thimmaiah versus Shabira and o others, reported in (2008) 4 Supreme Court Cases 1 C 82, held that if plaintiff is not in possession, he is not h entit led to relief of permanent injunction without cl g aiming recovery of possession. It is apt to reproduce para 10 i of the judgment herein:

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"10. Undisputedly, the suit was one for permanent injunction ^{and in such a} suit the plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a

plaintiff not in possession is not entitled

to the relief without claiming recovery

of possession. Before an injunction can

be granted it has to be shown that the

plaintiff was in possession."

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19. It would also be profitable to reproduce para 11 of the judgment rendered by the Apex Court in the case titled as

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Anathula Sudhakar versus P. Buchi Reddy (Dead . ) B P y L.Rs. & Ors., reported in 2008 AIR SCW 2692, herein:

"11. The general principles as to whenH a mere suit for permanent o injunc f tion will

lie, and when it is n ecessary to file a suit for declaration and/or possession with injunction a t s a consequential relief, are well r settled. We may refer to them briefly.

11.1 Where a plaintiff is in lawful or pea o ceful u possession of a property and such possession is interfered or threatened by the defendant, a suit for C an injunction simpliciter will lie. A person has a right to protect his possession against any person who does h

not prove a better title by seeking a prohibitory injunction. But a person in g

wrongful possession is not entitled to an i

injunction against the rightful owner. H

11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession

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from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a

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cloud or in dispute and he is not in possession or not able to establish

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possession, necessarily the plaintiff will

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have to file a suit for declaration, possession and injunction."

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20. Applying the test to the instant cas f e, the plaintiffs- respondents have not proved the posses o sion and the findings to this effect have not been ques r tion t ed by them, the suit was to be dismissed.

21. The aver o mentus contained in the plaint are contradictory for the following reasons:

22. T he C plaintiffs-respondents have stated in para 2 of the pla h int that the defendants-appellants have started to

i^cog nstruct the road and in para 4 have stated that they have H

not acceded to their requests, but continued with the construction work of the road. In para 5 of the plaint, it has been pleaded that the plaintiffs-respondents are in possession of the suit land and in para 8 they have stated that cause

of action accrued to them on 05.07.2005 when the defendants-

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appellants started the construction work of the road.

23. The plaintiffs-respondents have also not

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approached the Court with clean hands. It was for the . m P to plead that road was constructed in the year 2000, were out of possession at the time of filing of the suit, had t o fHile suit for

recovery of possession and to explain the delfay for not filing

the suit till 10.08.2005. Virtually, t the y ohave played hide and seek.

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24. Our this view i u s fortified by the judgment rendered by the Apex Court o in the case titled as A. Shanmugam versus Ariy a C Kshatriay Rajakula Vamsathu Madalaya Nandh h avana Paripalanai Sangam, Represented by its i^Pg resident, reportedⁱⁿ2012 AIR SCW 3017. ^{It is apt to} H

reproduce paras 23 and 27 of the judgment herein: "23. We reiterate the immense importance and relevance of purity of pleadings. The pleadings need to be critically examined by the judicial officers or judges both before issuing the

ad interim injunction and/or framing

of issues.

24. to 26. ............

27. The pleadings must set-forth

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sufficient factual details to the extent that it reduces the ability to put forward a false or exaggerated claim or defence. The pleadings must inspire

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confidence and credibility. If false averments, evasive denials or false

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denials are introduced, then the Court

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must carefully look into it while deciding a case and insist that those who approach the Court must approaHch it with clean hands."

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25. It is beaten law of land th at o a party, which seeks equity, must do equity and shoul t d come to the Court with clean hands. In a civil suit u , gran r ting of permanent prohibitory injunction or restrai o nt order is discretionary one, based on equity. A perso C n, wh se conduct is blameworthy, cannot claim equity. In the instant case, as discussed hereinabove, the plaintif h fs have taken contradictory stand in the plaint and

i^hag ve concealed the fact that in the year 2000, the possession H

was taken by the defendants-appellants, which is held by both the Courts below. The impugned judgment and decree has not been questioned by the plaintiffs-respondents, thus, has attained finality so far it relates to them.

26. The Apex Court in the case titled as

Kanchusthabam Satyanarayana and others versus

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Namuduri Atchutaramayya and others, reported in

(2005) 11 Supreme Court Cases 109, held that

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discretionary relief such as injunction being equitabl . e P in nature must be granted on considerations of equity and justice. It is apt to reproduce relevant por f tio n Hof para 11 herein:

"11. ......The grant of disocretionary relief such as injunction t bein g in the nature of equitable relief must be granted inter- alia on u consid r erations of equity and justice, and the Appellant who is himself gui o lty of inequitable conduct cannot claim such relief. Therefore, we find that C in the facts and circumstances of the case, assuming for the sake of argument that the Civil Court had jurisdiction to entertain the suit, and even going to the h

extent of assuming that the tenancy courts had no jurisdiction to entertain g

the eviction petition filed by appellant i

himself, this was an appropriate case in which injunction ought not to have been H

granted. Having obtained an advantage by invoking the jurisdiction of the authorities under the Tenancy Act, the Appellant cannot be allowed to retain that advantage by turning around and challenging the jurisdiction of the same authorities under the tenancy Act. Even under the Code of Civil procedure an

order of Restitution is stayed only in

exceptional circumstances. We, therefore,

concur with the view of the High Court

and dismiss these appeals."

(Emphasis added)

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27. The Kerala High Court in the case titled as

Vellakutty versus Karthyayani and another, reported in

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AIR 1968 Kerala 179, and the Madhya Pradesh High C . ou P rt in the case titled as Shajuddin and others vers H us Nagar Palika Parishad and another, reported f in AIR 1985 Madhya Pradesh 252, held that if p o laintiff has acted in unfair or unequitable manner r wit t h his opponent, he is not entitled to injunction.

28. In terms o of th u e mandate of the Limitation Act, 1963, the suit was to be filed within three years, but the suit came to be fi led C after five years. There is concurrent finding to

this eff h ect that the road was constructed in the year 2000 and

i^thg e plaintiffs-respondents were out of possession and the suit H

came to be filed in the year 2005. Thus, the suit was barred by time. 29. The Delhi High Court in the case titled as Faqir Chand (through L.Rs.) versus Lila Ram (through L.Rs.),

reported in AIR 1994 Delhi 161, held that the suit for injunction has to be filed within three years. It is apt to

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reproduce para 26 of the judgment herein:

"26. Facts of the present case are in pari materia with the facts of the case .

decided by the Lahore High Court in the Full Bench judgment. So,following

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the Full Bench judgment of the Lahore

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High Court which stands approved by the Supreme Court. I hold tha f t i n the present case the construction of the tHin-shed in the common passage amounted to complete ouster of the right of common use to that portion of the joint

passage where t t he tion-shed stood constructed. H r ence, the injury was complete when the tin-shed was construct u ed and limitation was three years for filing the suit for seeking the reli o ef of mandatory injunction." 30. The question is - whether the defendants- appellants ca n C press the ground of limitation at the appellate stage w h hen they have not raised the issue before the trial

i^Cog^{urt or the} First Appellate Court? ^The answer ^{is in} H

affirmative for the following reasons: 31. It is a fact that the defendants-appellants have not raised the issue of limitation before the Courts below, but have taken this ground in the memo of appeal and substantial

question of law No. 5 has been framed.

32. It is the duty of the Court to pose the question, at

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the first instance, as to whether the suit is within limitation in terms of Section 3 of the Limitation Act, 1963.

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33. It is apt to reproduce Section 3 of the Limitati P on Act, 1963 herein: .

"3. Bar of limitation. - (1) SubjectH to the provisions contained in section s 4 to 24 (inclusive), every s o uit in f stituted, appeal preferred, and application made after the prescrib t ed period shall be dismissed, alth r ough limitation has not been set up as a defence.(2) For th u e purposes of this Act -( o a) a suit is instituted - C

(i) in an ordinary case, when the plaint is presented to the proper officer; h

(ii) in the case of a pauper, g

when his application for leave i

to sue as a pauper is made; and(iii) in the case of a claim H

against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;

(b) any claim by way of set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted -

(i) in the case of a set off, on the same date as the suit in which

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the set off is pleaded;

(ii) in the case of a counter claim, on the date on which the

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counter claim is made in court;

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(c) an application by notice of

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motion in a High Court is made when the application is presented to the proper officer of that court." H

34. A bare reading of the said Section fmandates that it is the duty of the Court to deter t mi neo whether the suit is within time or otherwise.

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35. The Apex Co u urt in the case titled as Food Corporation of I o ndia and others versus Babulal Agrawal

wi C th Babulal Agrawal versus Food Corpor h ation of India and others, reported in (2004) 2 i^Sug preme Court Cases ^712, held ^{that such} issue ^{can be} H

raised ^{at any} stage, ^{even at} appellate stage. ^{It is apt to} reproduce relevant portion of para 12 herein: "12. ..............Learned counsel for the defendant-appellant, however, relying upon Section 3 of the Limitation Act

submits that it was the duty of the

Court to see as to whether the suit was

within limitation or not. A suit filed

beyond limitation is liable to be

dismissed even though limitation may

not be set up as a defence. The above

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position as provided under the law cannot be disputed nor it has been disputed before us........."

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37. The Kerala High Court in the case titled as M/s. Craft Centre and others versus The Koncherry Coir

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Factories, Cherthala, reported in AIR 1991 Kerala 83, . he P ld that a suit can be dismissed even at appellate stage, though issue of limitation was not raised before th f e C ouHrt of first instance. It is apt to reproduce para 4 of o the judgment herein:

"4. What S. 3 of the t Li mitation Act says is that every s r uit instituted after the prescribed period shall be dismissed, although u limitation has not been set up as a defence. It is the duty of the pla o intiff to convince the Court that his suit is within time. If it is out of time C and the plaintiff relies on any acknowledgment or acknowledgments in order to save limitation, he must h

plead them or prove, if denied. An acknowledgment not pleaded in the plaint, atleast by way of amendment,

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cannot ^be relied ^{on. The}plaint must appear ^{on the face of it to be}within time. ^Ifnot, ^thecourt can reject ^{it on} H

the ground of limitation even without issuing summons to the defendant and waiting for his plea of limitation. In this case, the only acknowledgment pleaded is Ext.A1 dated 23-10-1978. If the Court finds that the acknowledgment was only on

23-10-1976, the suit filed beyond three

years, on 20-3-1981, could be dismissed

on that ground itself. The provision in

Section 3 is absolute and mandatory.

The Court can claim no choice except to

obey it in full. It is the duty of the Court

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to dismiss a suit which on the face of it is barred by time even at the appellate stage despite the fact that the issue was not at all raised."

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38. While deciding a civil suit, the pleadings are . t P he foundation of the case. The pleadings play an imp H ortant role in making the judgment and decree and that f is w hy it is said that the pleadings are the heart, soul and o essential foundation of a judicial verdict. It is the bedroc t k o f the judicial disposal.

39. In the instant u case, r at the cost of repetition, the plaintiffs-respondents have not prayed for relief of compensation C or reco o very of possession, no such foundation was laid.

40.

h The Apex Court in the case titled as State of i^Og rissa & Anr. versus Mamata Mohanty, reported in 2011 H

AIR SCW 1332, held that the relief, not founded on pleadings, cannot be granted. It is apt to reproduce para 35 of the judgment herein:

"35. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties

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concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as

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a rule relief not founded on the pleadings should not be granted."

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Therefore, a decision of a case cannot be

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based on grounds outside the pleadings of the parties. The pleadings and i ssues are to ascertain the real f dispuHte between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri M o ahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind.

App. 195; M/s. Tr t oja n & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC

235; Ishw u ar Dutt v. Land Acquisition Collector & Anrr., AIR 2005 SC 3165 : (20 o 05 AIR SCW 578); and State Of Maharashtra v. Hindustan Construction Company Limited ., (2010) 4 C SCC 518 : (2010 AIR SCW 2265)) " 41. T he parties, the Courts of first instance, the Appella h te Courts or the Revisional Courts cannot travel

i^beg yond the pleadings in view of the mechanism provided in H

CPC, which provides as to what procedure is to be followed after trial stage, i.e. after framing the issues, in terms of Order XIV CPC and how it has to be taken to its logical end after framing the issues.

42. The Apex Court in the case titled as Hari Chand versus Daulat Ram, reported in AIR 1987 Supreme Court

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94, held that when the plaintiff fails to prove his case as pleaded in the plaint, the relief cannot be granted by the

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Court, which is neither pleaded nor prayed. It is apt P to reproduce para 11 of the judgment herein: .

"11. On a consideration of f a ll Hthe evidences on record it is clearly established that the alleged encroachment by construction of kuchha

wall and khaprail ove r i o t are not recent constructions as alleged to have been made in May 1961. t On the other hand, it

is crystal clea r r from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 t o hat th u e disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the C wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the court Amin's h

report 57C also shows the said walls and khaprail to be 25-30 years old in its g

present condition. The High Court has i

clearly come to the finding that though the partition deed was executed by the parties yet there was no partition by H

metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the co-sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiffs vendor Ramji Lal and Ramji

Lal was ever in possession of the

disputed property since the date of

partition till the date of sale to the

plaintiff. The plaintiff has singularly

failed to prove his case as pleaded in the

plaint."

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43. The Apex Court in the case titled as Bachhaj Nahar versus Nilima Mandal & Ors., reported in 2009 AIR

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SCW 287, held that the Court cannot, on finding that . t P he plaintiff has not made out the case put-forth by him, grant some other relief. It is apt to reproduce f pa raH 12 of the judgment herein:

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"12. It is thus clear that a case not specifically pleaded t can be considered by the court only where the pleadings in substance, thourgh not in specific terms,

contains u the necessary averments to ma o ke out a particular case and the issues framed also generally cover the C question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. h

As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that

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the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the H

issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above

and several other decisions of this

Court following the same cannot be

construed as diluting the well settled

principle that without pleadings and

issues, evidence cannot be considered

to make out a new case which is not

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pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the

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stage of arguments by contending that the pleadings and issues are sufficient

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to make out a particular case and that

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the parties proceeded on that basis a H nd had led evidence on that case. Where neither party puts forth f such a contention, the court cannot obviously make out such a case no o t pleaded, suo motu."

44. The pleadings and r pa t rtic ulars are necessary to enable the Court to decide u the rights of the parties in the trial. 45. The Apex o Court in the case titled as National Textile Cor C poration Ltd. versus Nareshkumar Badrikuma r Jagad & Ors., reported in 2011 AIR SCW 6180, h h as laid down the same principle. It is apt to reproduce

i^pag ra 7 of the judgment herein: H

"7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in

issue, so that the parties may adduce

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grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict

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and to see just where the two sides differ. (Vide: Messrs. Trojan & Company v. Rm. N.N Nagappa Chettiar ., AIR 1953 AIR

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235; State of Maharashtra v. M/s. Hindustan Construction Company Ltd., AIR 2010 SC 1299; and Kalyan SinHgh Chouhan v. C.P. Joshi, AIR 2 f 01 1 SC 1127)."

46. As discussed hereinab t ov e,o the plaintiffs have specifically averred that the cau r se of action accrued to them in the year 2005, which is not u factually and legally correct.

47. Keeping

o in view the discussions made hereinabove, th C e substantial questions of law are answered accordi h ngly and the impugned judgment and decree is to be set aside.

i⁴⁸g^.Viewed thus, the impugned judgment and decree is

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set aside, the appeal is allowed and the suit is dismissed. (Mansoor Ahmad Mir) Chief Justice (Tarlok Singh Chauhan)

Judge

October 14, 2015

( rajni )