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2015 DIGILAW 2524 (ALL)

Kailash Nath v. D. Narain Garg

2015-08-20

ASHWANI KUMAR MISHRA

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JUDGMENT Ashwani Kumar Mishra, J. Defendant-appellant has filed the instant second appeal invoking jurisdiction of this Court under section 100 of the Code of Civil Procedure challenging the judgment and decree passed by the courts below in a suit filed by the plaintiffs-respondents for eviction of the appellant. 2. It appears that the defendant was inducted as a tenant by the plaintiff pursuant to a lease deed dated 15.11.1956, which was also got registered on 12.12.1956. The tenancy originally created pursuant to the lease deed was for a period of 10 years. After the term of lease expired a notice terminating the tenancy was served upon the defendant on 7.12.1966 and as the defendant-appellant did not vacate the premise as such suit for eviction along with the arrears of rent and damages etc was filed being Original Suit No. 62 of 1967. 3. The defendant-appellant filed his written statement and contended that the land, which has been leased out to the defendant was taken from Shri L. C. Bhatt and there were various construction standing on the land, which was used as a garage. It was stated that provisions of the U. P. Rent Control and Eviction Act 1972 were applicable. Various other grounds including that the suit was barred under section 60 of the Easement Act were taken. Trial court on the basis of the rival contentions framed 10 issues for the disposal of suit. 4. It further appears that in suit the defence of the defendant was struck off under the amended provisions of Order XV Rule 5 of the Code of Civil Procedure. The suit ultimately was decreed with the findings that the defendant was the tenant of open place of land and the provisions of the Act13 of 72 have not attracted and the tenancy has already been terminated. Aggrieved against the judgment of the trial court, defendant preferred a Civil Appeal No. 245 of 1982. The defendant-appellant mainly contested the decree on the ground that the plaintiff-respondent had no title over the property in question as the decree of ejectment had been passed against him under section 9 of the Public Premises Act, which had been affirmed in appeal, and therefore, the proceedings for eviction at the instance of the plaintiff's to the suit, who had himself facing eviction was not maintainable. Appellate court considered this issue and it was observed that so far as the defendant is concerned, he is admittedly the tenant of the plaintiff, and once the tenancy had been terminated and the defence of the defendant had been struck off under Order VI Rule 5 of the Code of Civil Procedure, thereafter the plea sought to be raised at the instance of the defendant was impermissible. The decree of the trial court was consequently affirmed on 3.5.1983. Aggrieved against the judgment and decree of the trial court and the appellate court, defendant-appellant has filed the present appeal. 5. I have heard Shri P. K. Jain, learned Senior Advocate assisted by Shri Abu Bakht, learned counsel for the appellant and Shri W.H. Khan assisted by Shri Gulrez Khan, learned counsel for the plaintiff-respondent. 6. Learned counsel for the appellant submits that once the plaintiff-respondent had been adjudged to be an unauthorized occupant and a decree for eviction against him had been passed, the suit for eviction at the instance of the plaintiff was not maintainable. It has also been contended that the plaintiff had no right left over the property so as to prosecute the suit for eviction. 7. Learned counsel for the respondent on the other hand submits that the defendant had not disputed the fact that he was the tenant of the plaintiff and the tenancy created in favour of the defendant by the plaintiff had been validly terminated. It has also been submitted that the nature of title held by the plaintiff over the suit property is not required to be adjudicated in the present proceedings as the limited scope available in the present proceedings was as to whether the defendant was liable to be evicted from the premises or not. It is also stated that the relationship of land lord and tenant since is not disputed, no other aspect was required to be adjudicated. 8. Learned counsel for the respondent has relied upon the decisions of this Court reported in 2012 (90) ALR 688 Ram Pyare vs Smt. Kamla Devi and others and by this Court in Anil Kumar vs Jaipal Gupta and others decided on 25.8.2009 to contend that once the defence has been struck off, no further ground in defence can be urged by the defendant. 9. 9. Having considered the submissions of the learned counsel for the parties, this Court finds that the defendant had admitted that he was the tenant of the plaintiff. The relationship of land lord and tenant is not in dispute. It is further not in dispute that the tenancy had come to an end. Learned counsel for the appellant has not been able to show any perversity or illegality in the orders, whereby the defence of the defendant was struck off. It has been recorded by appellate court that orders striking out defence has already been affirmed by the Apex Court. In such view of the matter, the decree passed against the defendant-appellant suffers from no illegality infirmity in the eyes of law. The only question argued with regard to the right of the plaintiff over the property is not required to be adjudicated in the present proceedings. The findings returned by the courts below are based upon consideration of oral and documentary evidence, which is not shown to be erroneous or perverse. Moreover as the defence of the defendant had been struck off which has been attained finality upto Apex Court it is not open for the defendant-appellant to raise any further challenge. The judgment passed by the courts below are concluded by the findings of fact. The substantial questions on which the appeal had been admitted are not made out in view of the discussions aforesaid and the appeal fails. 10. The second appeal is dismissed accordingly.