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2014 DIGILAW 283 (UTT)

Layeek Ahmad v. Pitambar Maulekhi

2014-07-16

ALOK SINGH

body2014
JUDGMENT Alok Singh, J. 1. Present petition is filed assailing the order dated 29.05.2014, passed by the learned 2nd Additional District Judge, Nainital in Civil Appeal No. 25 of 2013, whereby application moved by the defendant appellant to frame additional issues was rejected. 2. Facts of the present case, inter alia, are that plaintiff, respondent herein filed Civil Suit No. 33 of 2008 in the Court of Civil Judge (J.D.), Nainital stating therein that plaintiff started renovation of his residence situated at Poplar’s Compound Mallital, Nainital in the year 1992; plaintiff negotiated with the defendant for the work of carpenter; defendant agreed to do the carpenter work in the house of the plaintiff and requested the plaintiff to allow the defendant to stay temporary in the tin-shed [property in question] so that he may easily undertake the carpenter work; considering the request of the defendant, plaintiff allowed him to stay temporary in the suit property for the purpose of completing the renovation work; after completion the renovation work, defendant was asked to vacate the suit property; instead of vacating the suit property, defendant filed suit for permanent injunction; which was decreed with the direction to the present plaintiff not to evict the present defendant without adopting due process of law. Therefore, necessity arose to file the present suit of possession. 3. In the written statement filed by the defendant, it was admitted that the defendant was granted carpenter work, however, it was denied that defendant was permitted to occupy the suit property temporary for carpenter work. It was further stated that defendant was / is in possession as tenant of the suit property. Learned Trial Court was pleased to frame three issues:- (1) As to whether defendant is occupying the property in question as trespasser, if yes, what would be the effect? (2) As to whether plaintiff has any cause of action against the defendant? (3) To what relief plaintiff is entitle for. 4. Learned Trial Court, having perused the entire record, was pleased to decree the suit of the plaintiff against the defendant petitioner herein vide judgment and decree dated 29.06.2013. It was observed by the learned Trial Court, while recording findings on Issue No.1 that defendant failed to prove landlord-tenant relationship between the parties. 4. Learned Trial Court, having perused the entire record, was pleased to decree the suit of the plaintiff against the defendant petitioner herein vide judgment and decree dated 29.06.2013. It was observed by the learned Trial Court, while recording findings on Issue No.1 that defendant failed to prove landlord-tenant relationship between the parties. It was further observed that plaintiff was successful in proving that defendant was permitted to occupy the suit property temporary to complete carpenter work; therefore, after the completion of renovation of house, possession of the defendant was as of trespasser. Feeling aggrieved, defendant petitioner herein filed Civil Appeal No. 25 of 2013 in the Court of District Judge, Nainital, which was later on transferred to 2nd Additional District Judge, Nainital. In the appeal, defendant petitioner herein moved application under Section 107 C.P.C. requesting the Court to frame five additional issues to the effect:- (1) As to whether appellant/defendant was continuing as a tenant of the premises in question since 1980? (2) Whether the defendant’s license/tenancy (as the case may be) was terminated by the respondent/plaintiff? (3) Whether the defendant has explained the reasons for filing of the present Civil Suit after such a long delay? If no, it’s effect? (4) Whether the suit is time barred? (5) Whether the plaintiff is entitled to recover the damages from the appellant/defendant? If yes, the amount of damages? 5. Learned Appellate Court, vide impugned order dated 29.05.2014, was pleased to reject the application. Feeling aggrieved, petitioner has filed present petition under Article 227 of the Constitution of India. 6. I have heard learned counsel for the parties and have carefully perused the record. 7. As per the pleadings of the plaintiff, possession of the defendant was as of licensee while as per the pleading of the defendant he was tenant. Therefore, learned Trial Court ought to have framed the issues as under:- (1) As to whether defendant was permitted to occupy the suit property as licensee and his license stood revoked the moment defendant was asked to vacate the suit property? (2) As to whether defendant is in possession of the suit property as tenant? 8. Instead of framing these two issues, the learned Trial Court framed the issue as to whether defendant is in possession as trespasser thereof. 9. (2) As to whether defendant is in possession of the suit property as tenant? 8. Instead of framing these two issues, the learned Trial Court framed the issue as to whether defendant is in possession as trespasser thereof. 9. This is settled position of law that if initial entry is permissible, then after the expiry of the permission or after the revocation of the permission/license, possession becomes unauthorized. However, if initial entry is itself illegal, he would be trespasser. In the present case, none of the parties are claiming initial entry of the defendant illegal. Therefore, framing of the issue as to whether defendant is in possession as trespasser itself on the face of it is wrong. There is no pleading to the effect of limitation, therefore, other issues suggested by defendant do not arise at all. 10. Order 41 Rule 24 and 25 of C.P.C. reads as under:- “24. Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. “25. Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor (within such time as may be fixed by the Appellate Court or extended by it from time to time).” 11. As per the mandate of Order 41 Rule 24 C.P.C. Appellate Court, while hearing the appeal, may resettle the issue which in fact arises in the case and if sufficient material is available on the record may decide the case at its own merit in accordance with law without remitting the same to the Trial Court. As per the mandate of Order 41 Rule 24 C.P.C. Appellate Court, while hearing the appeal, may resettle the issue which in fact arises in the case and if sufficient material is available on the record may decide the case at its own merit in accordance with law without remitting the same to the Trial Court. However, as per Order 41 Rule 25 C.P.C. if material is not sufficient before the Appellate Court to decide the lis after resettling the issue, Appellate Court may send the matter back to the Trial Court for retrial to record finding on the issue so framed by the Appellate Court. 12. In view of the observations made hereinbefore in the present case, following issues should be famed and are being framed instead of issue No.1 as framed by the learned Trial Court: (1) As to whether defendant was permitted to occupy the suit property as licensee and his license stood revoked the moment defendant was asked to vacate the suit property? (2) As to whether defendant is in possession of the suit property as tenant? 13. Issue Nos. 2 and 3 as framed by the learned Trial Court are renumbered as Issue No.3 and 4 respectively. 14. Consequently, present petition is allowed. Impugned order dated 29.05.2014 is hereby set aside. Learned Appellate Court shall decide the appeal preferably within 60 days from the date of production of copy of this order. While deciding the appeal, learned Appellate Court, if material is found to be sufficient on the record, shall record findings on each and every issue as re-settled hereinbefore. 15. No cost.