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2012 DIGILAW 1672 (ALL)

ABDUL HAMID v. ABDUL LATIF

2012-07-26

SHABIHUL HASNAIN

body2012
JUDGMENT Hon’ble Shabihul Hasnain, J.This is defendant’s second appeal filed against the judgment and decree dated 24.5.1982 passed by District Judge, Bahraich allowing the appeal preferred by the plaintiff, while setting aside judgment and order dated 9.3.1981 whereby the suit filed by the plaintiff was dismissed. 2. Earlier this second appeal came up for hearing and was allowed by this Court (Hon’ble Kamal Kishore, J.) vide order dated 4.4.2001. The review petition filed against this order was also dismissed vide order dated 6.7.2001. Thereafter, the matter went before Hon’ble Supreme Court in Civil Appeal Nos. 1343-1344 of 2002 wherein the order passed in second appeal was set aside and this appeal has been remanded to this Court for decision in accordance with law upon framing of a substantial question of law in terms of Section 100 of the C.P.C. It was directed that the High Court would do well to deal with the matter expeditiously. After the remand, this Court has formulated substantial question of law on 24.9.2002. 3. On 12.2.2004, plaintiff-respondent to this second appeal preferred an application for dismissal of the appeal as infructuous. The case of the plaintiff-respondent in this application was that certain developments have been made and the allotment in favour of the defendant-appellant has been cancelled and the plaintiff-respondent, who was earlier sub-tenant as alleged has been allotted the shop by Zila Parishad as tenant of the shop. This Court vide order dated 13.12.2004 has rejected the application being not maintainable but without expressing any opinion on any question raised in this application. It was made clear that at the time of deciding the second appeal, this will also be the question of law whether the suit of the plaintiff as filed before the trial Court can be decreed in view of the further developments as alleged and whether the defendant-appellant can puruse the appeal in view of the pleadings and the evidence on record. 4. Briefly stated the facts of the case are that the plaintiff-appellant had filed the aforesaid suit for permanent injunction with the allegation that the shop in question was taken on licence by Abdul Hamid defendant No. 1 from the Zila Parishad at Rs. 75/- per mensem. He had sublet the shop to him at the rate of Rs. 100/- per month in 1977. 75/- per mensem. He had sublet the shop to him at the rate of Rs. 100/- per month in 1977. The defendant No. 1 has been trying to eject him forcibly and was in collusion with the defendant No. 1. They have been threatening to dispossess him otherwise than in due course of law. Under the circumstances, the plaintiff had prayed for a decree of permanent injunction directing the defendants not to interfere in his possession. 5. The suit was contested by the defendant No. 1 alone. His case was that he is the owner of the shop in dispute. The plaintiff has got nothing to do with it. He (the plaintiff) was previously his servant. He had turned him out and the plaintiff had started his own business of selling grain in front of his shop on the PHAR. The plaintiff had no right in it and his suit is liable to be dismissed with costs. 6. On perusal of material available on record, the trial Court framed following issues : 1. Whether plaintiff is sub-tenant of defendant No. 1 in the shop in dispute and is in possession thereof? 2. Whether plaintiff was servant of defendant No. 1 as alleged? 3. Whether defendant No. 1 is in possession in the shop in dispute and do his business? 4. Whether the suit is undervalued and Court fee paid is insufficient? 5. Whether the Court has no jurisdiction to try the suit? 6. Whether suit is barred by Section 34 Specific Relief Act? 7. Whether suit as framed as not maintainable? 8. To what relief if any is plaintiff entitled? 7. The trial Court after perusing the oral and documentary evidence produced by the parties concerned in support of their rival claims, dismissed the suit filed by the plaintiff. 8. The trial Court while deciding issue No. 1 has recorded a finding that the plaintiff has admitted that defendant No. 1 is a tenant of Zila Parishad and simultaneously he said that he is sub-tenant of defendant No. 1. According to the plaintiff, after the taking the shop in question on rent the defendant did not carry any business in it and the shop was being closed. According to the plaintiff, after the taking the shop in question on rent the defendant did not carry any business in it and the shop was being closed. He has sub-tenanted the shop to him in the year 1977 whereas the defendant No. 1 in his statement has stated that his business was being carrying on in the shop in question, the plaintiff was his servant and he was sitting there in the capacity of servant. The plaintiff has exhausted his capital, therefore, in 1979 the defendant No. 1 has ousted the plaintiff. The plaintiff has filed the suit on wrong facts. The trial Court found that there was no written evidence in support of the claim put forward by the plaintiff that he was the sub-tenant of the shop in question. There is also not clear assertion in this regard. On both these counts, the trial Court has recorded a finding that the plaintiff has failed to produce any evidence in his support. The trial Court has also rightly recorded the findings on question of facts that there is no concerned of the plaintiff with the tenancy of the shop from Zila Parishad. It is the admitted fact of the case that defendant No. 1 was a tenant of Zila Panchayat. The trial Court after analyzing the documentary evidence filed by the plaintiff has reached to the conclusion that they are not worth credence and no reliance can be had on it. In support of this case of sub-tenancy the plaintiff has filed some electricity bills upto the period of 1979, which according to the defendant, is the year when the defendant accepted that he was as a servant of the shop. The plaintiff was allowed to sit there and when the plaintiff has misappropriate the capital which the defendant had invested in the shop in question, therefore, in March, 1979 the defendant No. 1 has ousted the plaintiff. It may be mentioned here that the plaintiff could not file any electricity bill after the period of March, 1979. On the other hand, it is case of the defendant that plaintiff used to deposit the bills and somehow he has taken away some of the bills with him and now he placed reliance on those bills. It may be mentioned here that the plaintiff could not file any electricity bill after the period of March, 1979. On the other hand, it is case of the defendant that plaintiff used to deposit the bills and somehow he has taken away some of the bills with him and now he placed reliance on those bills. In these views of the matter also, it can safely be said that the trial Court has rightly rejected the documentary evidence produced by the plaintiff in support of his tenancy. The claim of the plaintiff that still he continues to pay the rent to the defendant also cannot be accepted because when after the dispute has arisen in 1979, it cannot be accepted that he is paying the rent directly to the defendant and too without any receipt. The statement of P.W. 2 also does not support, the case of the plaintiff. In his statement he said that he cannot say that the plaintiff was working in the capacity of servant or not. 9. On all these points of view the claim of the plaintiff did not find favour to the trial Court and to my mind, the finding recorded by the trial Court in the aforesaid facts and circumstances of the case, do not call for any interference of this Court and it can only be inferred that sub-tenancy in this case is not established. This Court is of the view that the trial Court has rightly held that the plaintiff has failed to prove his sub-tenancy and hence, the issue No. 1 has rightly been decided against the plaintiff. 10. This Court has also gone through the findings recorded by the trial Court on the remaining issues and finds that the trial Court has rightly reached to the conclusion that plaintiff was the servant of defendant No. 1 and accordingly rightly recorded the finding that since it is established that business of defendant No. 1 was being carried on in the shop in question and he is in possession of the same, the rest of the issues has rightly been decided in favour of defendant No. 1 as against the plaintiff. 11. In view of what has been indicated herein-above, this Court is of the considered opinion that the judgment and order passed by first appellate Court is perverse and illegal. 11. In view of what has been indicated herein-above, this Court is of the considered opinion that the judgment and order passed by first appellate Court is perverse and illegal. The substantial question of law framed by this Court after the remand of the matter by Hon’ble Supreme Court, stands, thus, decided. 12. An application under Order XLI Rule 27 for admitting the additional evidence, has been filed by Sri Farooq Ahmad, alongwith affidavit 2.5.2012. 13. The respondents plaintiff have stated on oath that after cancellation of the allotment in the Zila Panchayat, Bahraich, the premises has been allotted to respondent No. 1 after taking premium of Rs. 30,000/-. Further the respondent is in possession of the shop in question as allottee of Zila Panchayat and the appellant-defendant has nothing to do with the shop in question. He says that due to subsequent event and change circumstances, respondent No. 1 want to bring certain relevant documents for proper adjudication of the above second appeal. 14. For the argument sake even if it is accepted that the allotment in favour of respondent has been made and due to subsequent event at the stage of second appeal, the circumstance has been changed, even then it is very relevant to note that the respondent No. 1 has still not annexed the allotment letter with the application, in his favour. He has annexed only one notice issued by the Zila Panchayat as Annexure S.A. 1 and one certificate that the shop is allotted to the respondent by some Inspector. Sri Farooq Ahmad took time to produce allotment order but he failed to do so till date. 15. Sri Anurag Verma, counsel for the appellant-defendant has relied upon the decision of Hon’ble Apex Court in Sadashiv Shyama Sawant and others v. Anita Anant Sawant, (2010) 3 SCC 385 , which lays down that in case of forcible dispossession as in the event of subsequent allotment, this second appeal cannot be thrown out. 16. It may be mentioned here that this Court even earlier rejected the application filed by respondent, which was preferred raising the same issued but under different head for dismissal of the appeal as infructuous. 16. It may be mentioned here that this Court even earlier rejected the application filed by respondent, which was preferred raising the same issued but under different head for dismissal of the appeal as infructuous. This Court has already held that the scope in second appeal is very limited and documents so annexed by the respondent cannot be read into evidence and no additional evidence can be taken into consideration during second appeal unless admitted by the Court. The Court held that since such evidence cannot be read at this stage and the appeal is to be heard finally on the substantial question of law which arises from the impugned judgment of the first appellate Court, the application was not maintainable and thus the same was rejected. 17. For the aforesaid discussion, the application filed in this second appeal, under Order XLI Rule 27 C.P.C. cannot be entertained and is thus rejected. 18. Since the issues/substantial question of law which have arisen and framed in the matter by the Courts below have been the subject-matter of decision and the scope in second appeal is very limited and same has to be decided on the basis thereof. The challenge before this Court was regarding perversity or illegality of the judgment and orders passed by the Court below. The issue on this point was also framed by this Court. After perusing the entire judgments of the Courts below, having gone through the oral and documentary evidence, this Court is of the view that the findings recorded by the trial Court dismissing the suit of the plaintiff cannot be interfered with. This Court finds that on wrong assumptions of facts as well as oral and documentary evidence, the first appellate Court wrongly allowed the appeal filed by the plaintiff, which are liable to be set aside. 19. In view of the above, this defendant’s second appeal deserves to be allowed. The appeal is allowed. The judgment and decree dated 24.5.1982 passed by Sri Harish Chandra, District Judge, Bahraich in Civil Appeal No. 59 of 1981, is set aside.