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2009 DIGILAW 137 (MP)

Nafeesa Usmani v. Anwar Jahan

2009-01-28

A.K.SHRIVASTAVA, SUSHMA SHRIVASTAVA

body2009
ORDER Shrivastava, J. -- 1. Feeling aggrieved by the order dated 16.5.2007 (Annexure P-6) passed by learned Sixth Civil Judge Class I, Bhopal in C.S. No. 63-A/05 whereby the application under Order VI Rule 17 CPC and another application under Order XIV Rule 5 CPC filed by the plaintiffs has been dismissed, this petition under Article 227 of the Constitution of India has been filed. 2. The plaintiffs have filed the instant suit for eviction on the basis of relationship of landlord and tenant. Inter-alia one of the ground for eviction is that the defendant is not using the suit accommodation for a continuous period of six months immediately preceding the date of filing of the suit because after inserting the lock in the suit premises, she had gone elsewhere and is not residing in the suit premises. This averment has been made by plaintiffs in para 20 of the plaint. The defendant in her written statement specifically denied the said averment of the plaintiffs. 3. No issue has been framed by the learned trial Court on this ground of eviction. The trial Court has rejected the application under Order XIV Rule 5 CPC filed on behalf of the plaintiffs to frame an additional issue on the aforesaid ground. 4. On going through the amendment application, which has also been rejected by the impugned order, it is gathered that plaintiffs have filed this application praying therein that in case the relationship of landlord tenant is not established, on the basis of title, the plaintiffs are entitled for a decree of possession. These two applications have been rejected by the learned trial Court by the impugned order. 5. The contention of Shri Dubey, learned counsel for the petitioners is that so far as rejection of application under Order XIV Rule 5 is concerned, since there is an averment of plaintiffs making a specific plea in the plaint for eviction as envisaged under section 12 (1 ) (d) of the M.P. Accommodation Control Act, 1961 (in short the 'Act'), which has been denied by the defendant in her written statement, therefore a specific issue on this ground ought to have been framed by learned trial Court. 6. 6. According to us, since it is well settled in law that if a material proposition of fact or law is affirmed by one party and denied by the other, an issue is required to be framed. Indeed, this is the aim and object of framing of issue as envisaged under Order XIV Rule 1 CPC. In order to prove the ground under section 12 (1) (d) of the Act, according to us, it was necessary to frame an issue in this regard. Because, a material proposition of fact and law has been pleaded by plaintiff, which has been denied by defendant. In this contest, we may profitably place reliance on the decision of Single Bench of this Court in Vansh Bahadur Singh v. Kalil/a Singh [1969 JLJ 280]. In this decision, this Court has laid down the law that it is true that it was the duty of the party to have asked the Court to frame an issue, which was material for the determination of the rights and liabilities of the parties in the suit, but it cannot be denied that it was primarily the duty of the Court to frame an issue on that vital question. The present case is on rather better footing because in the present case plaintiff is quite vigilant and has filed an application under Order XIV Rule 5 CPC to frame a specific issue on the ground envisaged under the Act. 7. According to us, necessary issue ought to have been framed by the trial Court in order to determine the right of eviction under the ground envisaged under section 12 (1) (d) of the Act and the liability of defendant whether he is required to vacate the suit accommodation. On going through the issues, which are framed we find that no such issue has been framed by the trial Court. In this view of the matter, the application under Order XIV Rule 5 CPC deserves to be and is hereby allowed and the trial Court is hereby directed to frame necessary issue in that regard. 8. So far as the rejection of amendment application is concerned, according to us, the same has also been rejected in cryptic manner. In para 4 of the plaint, there is a specific plea of plaintiffs that she bought the suit accommodation from one Nareshchand Soni vide registered sale deed dated 9.8.200 1. 8. So far as the rejection of amendment application is concerned, according to us, the same has also been rejected in cryptic manner. In para 4 of the plaint, there is a specific plea of plaintiffs that she bought the suit accommodation from one Nareshchand Soni vide registered sale deed dated 9.8.200 1. Therefore, plaintiffs are seeking to amend their plaint by adding the proposed amendment. An alternative plea has been proposed by plaintiff that in case, they fail to prove the landlord-tenant relationship, they are entitled for decree of possession on the basis of title. According to us, the learned trial Court erred in rejecting the plaintiff's amendment application. Because, an alternative plea is always permitted to be raised. Accordingly, we hereby allow the amendment application filed by plaintiffs which has been rejected by the impugned order. 9. In the result, this petition succeed and is hereby allowed. The impugned order is hereby set aside. The application under Order VI Rule 17 CPC as well as another application under Order XIV Rule 5 CPC filed by plaintiffs are hereby allowed. Needless to say, the defendant shall be free to amend her written statement by way of consequential amendment. Let the amendment be incorporated by plaintiffs within a period of four weeks from today. Ne order as to costs.