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2013 DIGILAW 631 (ALL)

Kamla Kant Dwivedi v. Surendra Kumar Bhatia

2013-02-22

A.P.SAHI

body2013
JUDGMENT A.P. Sahi,J.: - This appeal was heard and dismissed on 13.12.2012 whereafter the Application No. 19191 of 2013 was filed on 22nd of January, 2013 pointing out that the order which was to be pasted on the order-sheet has been pasted on the memo of the appeal whereas the reasoned order appears to have not been uploaded. The application was entertained and was directed to be put up for orders in order to bring on record the detailed reasoned judgment which is as follows: - 2. This is a plaintiff's second appeal. The suit was filed for permanent injunction praying for injuncting the defendant respondent herein from evicting the plaintiff from the disputed premises. The suit was contested by the plaintiff through one Anil Kumar Mishra describing himself as the General Power of Attorney Holder of the plaintiff. The disputed premises consist of three rooms on the first floor which the plaintiff claimed to be under his tenancy @ Rs. 800/- per month initially which was later sought to be increased. Paper No. 109Ka was filed as the rent note describing the contract of tenancy between the plaintiff and the defendant. 3. The defendant filed a written statement as also a counter claim contending that when the suit was being filed the plaintiff forcibly entered into the premises and in his statement the defendant indicated that Anil Kumar Mishra who is the plaintiff's real nephew, and had appeared in the suit as the Power of Attorney Holder, had occupied the premises as trespasser. The defendant denied any contract of tenancy and also denied his alleged signatures or thumb impressions either on the rent note or the alleged rent receipts relied by the plaintiff. 4. The trial court came to the conclusion that the plaintiff did not enter the witness box to prove the rent note and that the expert report also negatived the claim of the plaintiff. Thus the document of the contract of tenancy was disbelieved. 5. The trial court on the rent receipts opined that even though an expert opinion has been tendered of the issuance of the rent receipts allegedly by the defendant yet neither the expert was produced to prove the alleged report nor the plaintiff himself entered the witness box to prove the same. 5. The trial court on the rent receipts opined that even though an expert opinion has been tendered of the issuance of the rent receipts allegedly by the defendant yet neither the expert was produced to prove the alleged report nor the plaintiff himself entered the witness box to prove the same. The only statement recorded was that of Anil Kumar Mishra on behalf of the plaintiff and on account of the discrepancies noted in the said statement the same was also disbelieved. Accordingly, the trial court dismissed the suit filed by the plaintiff. 6. The counter claim filed by the defendant was also not found to be established on the ground that the defendant himself had taken a plea that it was Anil Kumar Mishra, the real nephew of the plaintiff who was in occupation and since he was not a party to the suit, the counter claim could not be decreed. Accordingly, the counter claim was also rejected. 7. The plaintiff does not appear to have filed any appeal against the dismissal of the suit. The defendant respondent filed an appeal against the rejection of his counter claim. The counter claim has been allowed and the judgment of the trial court to that extent has been reversed holding that Anil Kumar Mishra had participated in the proceedings not only as a Power of Attorney Holding but also on behalf of the plaintiff as he is alleged to be residing with the plaintiff together as a trespasser. The lower appellate court therefore found that since Anil Kumar Mishra was described only as a Power of Attorney Holder for the purpose of the suit, then in that event, his occupation would that be not better than that of the plaintiff who was himself a trespasser. In the circumstances, the counter claim was allowed. 8. The appellate court further recorded that after the filing of the appeal by the defendant, no cross objection was filed by the plaintiff, and therefore the plaintiff virtually did not contest the matter any further. 9. After the appeal was allowed in favour of the defendant respondent, the decree was put in execution when this second appeal came to be filed. 10. This court entertained the appeal without admitting it on any substantial question of law and vide order dated 16.5.2002 summoned the record of the court below. 9. After the appeal was allowed in favour of the defendant respondent, the decree was put in execution when this second appeal came to be filed. 10. This court entertained the appeal without admitting it on any substantial question of law and vide order dated 16.5.2002 summoned the record of the court below. Neither any interim order was passed nor any other protection was granted to the appellant. It appears that since the lower appellate court record had been summoned the execution was held up. 11. The appeal was dismissed in default and was restored whereafter it has again been listed under Order 41 Rule 11 for admission. 12. Sri Singh, learned counsel for the appellant contends that the substantial questions of law that arise are that there was no occasion for the defendant respondent to have preferred any appeal nor any cause of action survived as after the dismissal of the suit of the plaintiff the cause had become infructuous. In such circumstances, the lower appellate court was not justified in entertaining the appeal against the counter claim and decreeing the same. 13. The second question raised by the learned counsel is that it appears that during the pendency of the dispute the property was partitioned amongst the defendant and other shareholders and in the event the same fell into some other person's share, the lower appellate court was not justified in decreeing the counter claim. 14. Thirdly, whether the report of the handwriting expert on the disputed documents was admissible in evidence and fourthly whether a decree for ejectment on the counter claim could be passed against the possession of Anil Kumar Mishra in the wake of the findings recorded by the trial court itself. 15. Having perused the judgment and decree of the trial court as well as the judgment of the appellate court, the findings on facts, namely, that Anil Kumar Mishra was the real nephew of the plaintiff and was residing with him, has been established by the statement of Anil Kumar Mishra himself. The appellate court has categorically recorded that the plaintiff in connection with his business had to remain outside for a fairly long time that it was Anil Kumar Mishra who was occupying the premises in his behalf and had also described himself as a Power of Attorney Holder. The appellate court has categorically recorded that the plaintiff in connection with his business had to remain outside for a fairly long time that it was Anil Kumar Mishra who was occupying the premises in his behalf and had also described himself as a Power of Attorney Holder. The fact that Anil Kumar Mishra had knowledge of the entire proceedings and had appeared as a plaintiff witness is also undisputed. The finding recorded therefore by the court below on the said evidence to decree the counter claim cannot be said to be perverse or illegal. The counter claim has been decreed against the plaintiff and since Anil Kumar Mishra was an associate of the plaintiff living alongwith him it was not necessary to implead him in the said counter claim as a party, inasmuch as, Anil Kumar Mishra was acting as the Power of Attorney Holder of the plaintiff himself. 16. It is also undisputed that Anil Kumar Mishra is the real nephew of the plaintiff (sister's son). 17. Apart from this, the findings of fact relating to the denial of the rent note has also been established. The plaintiff did not file any appeal. The finding therefore in relation to the alleged rent note/contract of tenancy being fake, becomes final. Thus the plaintiff appellant before this Court possibly cannot raise any ground in relation to the said findings of the tenancy having not been established. 18. The contention that the cause of action having been infructuous, the appeal against the counter claim was not maintainable is misconceived. The trial court had not allowed the counter claim and therefore the defendant had a right to present an appeal against the said counter claim and cause of action had not become infructuous. No such substantial questions of law arise as urged by the learned counsel for the appellant. The other questions raised are all concluded by the findings of fact and in the circumstances indicated above no substantial question of law arises. 19. Learned counsel Sri Singh had made a prayer for giving some more time to vacate the premises. 20. At this stage, it is relevant to point out that Misc. The other questions raised are all concluded by the findings of fact and in the circumstances indicated above no substantial question of law arises. 19. Learned counsel Sri Singh had made a prayer for giving some more time to vacate the premises. 20. At this stage, it is relevant to point out that Misc. Application No. 148765 of 2011 was filed by the defendant respondent supported by an affidavit bringing on record the application filed by the plaintiff before the court below during execution proceedings on 14.2.2003, according to which, the plaintiff himself had offered to vacate the premises, provided the defendant forgoes the claim of damages. The said application also indicates that it has been agreed that if the second appeal is withdrawn and vacant possession is not handed over, it shall be open to the defendant to get the decree executed. 21. A copy of this application was served on Sri Rajeev Trivedi who was also the counsel for the appellant on 12.5.2011. No counter affidavit has been filed denying the existence of the application filed by the plaintiff before the court below. In the aforesaid circumstances, there is no ground made out for extending any further time to vacate the premises. 22. The appeal therefore having not raised any substantial questions of law, as discussed hereinabove, is dismissed under Order 41 Rule 11. 23. Since the record of the court below had been summoned, the same may be remitted back to the trial court for the purpose of execution of the judgment and decree passed by the court below.