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2004 DIGILAW 1053 (RAJ)

Madan Lal v. Pushpa Devi

2004-07-26

PRAKASH TATIA

body2004
JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal is against the order dated 19.9.2002 by which the trial court framed two more issues and remitted the matter back to the trial court for recording evidence on the issues and record the finding and sent back the matter to the first appellate court. 3. Learned counsel for the appellant vehemently submitted that in fact issue about comparative hardship of he parties was framed by the trial court and which is issue No. 4.7. It is also submitted that in the facts of this case, there was no need to frame any issue for determination of the satisfaction of need of parties by passing decree for partial eviction only in place of eviction from the whole of the premises. 4. Learned counsel for the appellant invited the court's attention to the findings recorded on issue No. 7 and issue No. 2 by the trial court in the trial court's judgment dated 7.2.2002. Learned counsel for the appellant further submits that the trial court specifically framed issue about the comparative hardship of the parties and a findings has been recorded by the trial court on issue No. 7 which shows that since the plaintiff failed to prove her personal bona fide need for the premises in dispute. Therefore, the issue No. 4.7 (issue No. 7) is decided against the plaintiff. At the request of the learned counsel for the appellant finding recorded on issue No. 2 was also perused because in issue No. 4.7, the trial court only recorded the decision that since the plaintiff failed to prove her bona fide necessity for the premises therefore, the issue is decided against the plaintiff. Meaning thereby, the trial court refused to apply its mind on the issue of comparative hardship in view of the fact that the plaintiff failed to prove her personal bona fide necessity. 5. The reasons recorded by the trial court while 'deciding issue No. 2 reveal that the trial court was influenced by the fact that the plaintiff herself did not appear in the witness-box and, therefore, adverse inference was drawn against the plaintiff. The trial court also observed that PW-1, for whose need the suit was filed, himself admitted that he is having some land at his house out of which there is some open land upon which he can grow his vegetables. 6. The trial court also observed that PW-1, for whose need the suit was filed, himself admitted that he is having some land at his house out of which there is some open land upon which he can grow his vegetables. 6. After going through the facts of this case without commenting on the merit of the findings recorded by the trial court as the matter is before the first appellate court, it is clear that the trial court did not apply its mind to the issue of comparative hardship at all and it appears that this was due to the trial court's impression that after determination of the issue of personal bona fide necessity in the facts of this case, there is no need for deciding the issue No. 4.7 independently and ignored that the trial court was required to record the finding on each issue so that in case finding on issue No. 2 is reversed by the appellate court, the matter may not be required to be remanded back to the trial court for recording the finding on issue No. 4.7. 7. The facts as it may be, the controversy in this appeal is only whether the first appellate court committed any error of law or fact in framing additional issues and in remanding the matter to the trial court. Assuming for the sake of arguments that the issue No. 4.7 was there but at the same time the first appellate court's finding that the trial court decided issue No. 4.7 without any consideration of the facts of the case cannot be said to be wrong, rather, it is just and proper. 8. So far as issue of partial eviction is concerned, it is clear that no issue was framed and point was raised before the first appellate court pointing out towards mandatory duty of the court to frame issues. Since this Is admitted case that no issue was framed on this point, therefore, framing of issue on the point of the partial eviction is concerned, no fault can be found from the order of the first appellate court. 9. Learned counsel for the appellant submitted that there was no pleading of the plaintiff on the point of partial eviction and, therefore, there was no need to frame Issue. 10. 9. Learned counsel for the appellant submitted that there was no pleading of the plaintiff on the point of partial eviction and, therefore, there was no need to frame Issue. 10. It appears that the learned counsel for the appellant ignored the law laid down by the Hon'ble Apex Court on this very point where the Hon'ble Apex Court specifically held that it is the mandatory duty of the court to frame this issue. At this stage, it will be relevant to mention here that in the facts and circumstances about the particular case, the court may even refuse to frame the issue but in this case this contingency is not available because the suit has been filed not for a one small shop or kothri alone but appears to have been filed for a piece of land along with kothri. The purpose, for which the premises is sought by the landlord for her husband, clearly reveals that plaintiff's husband wants to have a garden and wants to grow vegetables on the land in dispute. It cannot be said to be a land of small size which could not have been considered for division by the trial court. 11. In view of the above fact, even if there is no pleading, the facts and record clearly reveal that the issue could have been framed. 12. Apparently it may look like that there is some force in the submission of the learned counsel for the appellant that in view of the issue No. 4.7, there is no need to frame issue on the point of comparative hardship and there is no need to give further opportunity to the landlord to produce evidence on this point. 13. It appears that because of non-framing of issue in proper form, some confusion might have prevailed, therefore, if the first appellate court found that the issue should have been framed after taking note of the already framed issue, there is no need for interference by this court in the impugned order dated 19.9.2003 and it is not a case where the first appellate court framed the issue in ignorance of already existing issue. 14. In view of the above, I do not find any merit in this appeal. Hence appeal of the appellant is dismissed. 15. 14. In view of the above, I do not find any merit in this appeal. Hence appeal of the appellant is dismissed. 15. Since this is an appeal listed on application for Senior Citizen, therefore, the trial court is requested to decide the issues remitted to it expeditiously.Misc. Appeal Dismissed. *******