On The Death of Kumudini Das, Her Legal Heirs, Randhir Kumar Das v. Thakurdas Gurupada Das
1998-09-17
A.P.SINGH
body1998
DigiLaw.ai
Present revision petition under section 115 of the Code of Civil Procedure, 1908 read with section 151 thereof has been filed against the judgment and decree dated 21.12.92 passed by Shri IA Ansari, learned District Judge, Karimganj in TA No. 3 of 1992 arising from TS No. 257 of 1982. 2. Petitioners as landlords of premises under dispute, filed title suit for eviction of defendants-respondents on the grounds inter alia of personal need. The trial Court dismissed the suit. The petitioners thereafter filed appeal. The petitioners suceeded in the lower appellate Court and their appeal was allowed. The lower appellate Court however found that necessary issues had not been framed in view of the pleadings raised by the defendants/respondents on the question that description of the suit property was not correctly given in the schedule of the plaint. No issue was framed by the trial Court in that regard. The lower appellate Court accordingly found it necesary to frame the following additional issues. 1. Is the suit maintainable in its present form ? 2. Does the plaint correctly describe the suit premises ? 3. Can executable decree be passed in the suit ? 4. To what relief or reliefs are the plaintiffs entitled ? Out of the above four issues which were framed by the lower appellate Court issues No.2 is with regard to the correct description of the suit premises in the plaint. After framing the issues, the learned lower appellate Court observed that though the issues could be decided by itself but it was better that the case was remanded to the trial Court for recording its findings on the above additional issues. 3. Heard Mr. NM Lahiri, learned senior counsel for the petitioners and Mr. AS Choudhury, learned counsel for the opposite parties. 4. Mr. NM Lahiri, learned Senior Advocate appearing on behalf of the appellants took strong exception to the framing of the four additional issues by the lower appellate Court which according to the learned counsel was not at all necessary. 5. In this argument Mr.
AS Choudhury, learned counsel for the opposite parties. 4. Mr. NM Lahiri, learned Senior Advocate appearing on behalf of the appellants took strong exception to the framing of the four additional issues by the lower appellate Court which according to the learned counsel was not at all necessary. 5. In this argument Mr. Lahiri contended that where the suit is for eviction of tenant by the landlord from house under tenants occupation and the tenant does not deny the tenancy mere denial of the correctness of the description of the suit • property in the plaint in such situation as it is not at all important as notwithstanding the denial by the defendants there arises no need to record any finding on the question as both the parties to the suit know as the premises under tenancy. It was further argued by Shri Lahiri that since the point was not pressed by the respondents before the trial Court at the time of framing of issues, therefore, the trial Court did not frame the one issue on the question which otherwise arose from tenants denial. 6. Having considered the arguments advanced by Mr. Lahiri, I find myself unable to agree with the same. 7. It cannot be denied that landlord and the tenant are normally aware of the premises under tenancy. However that by itself is not sufficient for the Court in cases where plaintiff (landlord) comes to the Court for seeking a decree of tenants eviction from the premises under the tenants occupation he has to give correct description of the premises from where he wants tenants eviction through Court without which even if the Court were to pass the decree it would not be possible for the Court to execute it. Therefore, before an executable decree is passed by the Court on the asking of the plaintiff it is Courts duty to ensure that the suit house is correctly described specially when the correctness of its description as given in the plaint is challenged by the defendant. Therefore, in the situation where defendant raises question about correctness of the description of the suit property in the schedule of the plaint it becomes incumbent duty on the trial Court to frame an issue on the question and decide that question on the basis of evidence.
Therefore, in the situation where defendant raises question about correctness of the description of the suit property in the schedule of the plaint it becomes incumbent duty on the trial Court to frame an issue on the question and decide that question on the basis of evidence. Unfortunately the trial Court did not care to deal with the denial made by the defendant in the written statement on the point. Nothing was stated by the trial Court in the judgment about the defendants denial of the correctness of the description of the suit property in the plaint. In the circumstances, in my opinion, the lower appellate Court was fully justified in framing issue No.2 and remanding the suit for fresh trial on that issue by the trial Court. I am, therefore, of the opinion that additional issues were rightly framed by the lower appellate Court. In this view of the matter the first limb of argument of Mr. Lahiri fails. 8. Coming to the second limb of his argument, I do not find any material on the record where from it may appear that respondents did not press the issue before the trial Court. Shri Lahiri too was not able to point out any material in this regard. His reasoning however was that since no issue on the question was framed by the trial Court it has to be assumed that defendant themselves did not press for it. Such a presumption in my opinion will not be safe to draw until there is sufficient justification available for it in the record. 9. From the above discussion it is clear the lower appellate Court committed no illegality by framing the additional issues and remanding, the suit for fresh trial on those issues. The revision petition' has no merit which is accordingly dismissed but without order as to costs. In view of the fact that the suit was filed in the year 1987 and has to be decided by the trial Court as per the order of remand passed by the lower appellate Court, I consider it appropriate to direct the trial Court to dispose of the suit in accordance with the remand order as early as possible and in case within a period of 6 months from the date of receipt of the record. Parties are directed to appear in the trial Court on 10th November, 1998.
Parties are directed to appear in the trial Court on 10th November, 1998. Registry is directed to send record to the lower Court forthwith.