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Himachal Pradesh High Court · body

2016 DIGILAW 557 (HP)

Sudesh Kumar v. Shivalik Hatcheries Pvt. Ltd.

2016-04-25

DHARAM CHAND CHAUDHARY

body2016
JUDGMENT : Dharam Chand Chaudhary, J. This appeal is directed against the judgment and decree dated 17.12.2004, passed by learned Additional Disatrict Judge, Solan, Camp at Nalagarh, in Civil Appeal No.6-NL/13 of 2004, whereby the judgment and decree passed by learned Civil Judge (Jr. Division), Nalagarh, in Civil Suit No.120/1 of 2002, has been affirmed and the appeal dismissed. 2. The respondent, hereinafter referred to as “the plaintiff”, is a Company registered under the Companies Act. It is owner of residential accommodation constructed for its employees over the land entered in Khewat/Khatauni No.95/96, bearing Khasra Nos. 121, 122, measuring 2B-2B, situate in village Pater Bhounkhu, Tehsil Nalagarh, District Solan. The said accommodation was allotted to Kashmir Singh, the husband of the appellant, hereinafter referred to as “the defendant”, in his capacity, as a licencee. The licence of said Kashsmir Singh was revoked by the plaintiff-company after his death on 10.5.2001. His wife, the defendant, however, continued to occupy that accommodation even thereafter also. She being in unauthorized possession of the said accommodation, the plaintiff-company served upon her a notice under Section 106 of the Transfer of Property Act. She, however, failed to handover the vacant possession of the premises in question, even on receipt of the notice also. The plaintiff-company, therefore, ultimately filed suit for possession of the accommodation in question and also for mesne profits at the rate of Rs.300/- per month. 3. The defendants, when put to notice, has contested the suit, on the grounds, inter alia, that her husband died during the course of employment and as such she had made a request to the plaintiff-company to provide employment to her on humanitarian ground and also to retain the accommodation, in question. The matter was delayed by the plaintiff at one pretext or the other with a view to deprive her from availing the remedy under the Workmen’s Compensation Act. 4. On such pleadings of the parties, the following issues were framed: “1. Whether the suit is not maintainable? OPD. 2. Whether the plaintiff is having no locus-standi? OPD. 3. Whether no proper Court fee was affixed on the plaint, if so, what is the proper court fee? OPD. 4. Relief.” 5. 4. On such pleadings of the parties, the following issues were framed: “1. Whether the suit is not maintainable? OPD. 2. Whether the plaintiff is having no locus-standi? OPD. 3. Whether no proper Court fee was affixed on the plaint, if so, what is the proper court fee? OPD. 4. Relief.” 5. Learned trial Court on appreciation of the evidence and pleadings of the parties has decreed the suit with a direction to the defendant to hand over the vacant possession of the premises in question to the plaintiff-company within one month from the date of decree. She, however, preferred an appeal, which has been dismissed vide judgment and decree under challenge before this Court in the present appeal. 6. The challenge to the judgment and decree is on the grounds, inter alia, that the same is not only against the facts, but also against law. The plaintiff has allegedly failed to produce any evidence and as such, the suit could have not been decreed. Both Courts below have allegedly failed to adhere to and apply the provisions contained under Orders 14 and 18 of the Code of Civil Procedure. The findings recorded by both Courts below are based on surmises and conjectures, hence not legally sustainable. 7. The appeal has been admitted on the following substantial questions of law: 1. Whether the decree can be passed by learned trial Court without compliance to the provisions of Order XIV and Order XVIII of the CPC? 2. Whether the findings of the learned lower Appellate Court regarding the applicability of the provisions of CPC to the Labour Court in view of Section 11 of the Industrial Disputes Act, 1947 is justified? 8. On hearing learned counsel representing the parties and having regard to the given facts and circumstances as well as the evidence available on record, as per admitted case of the defendants her husband was working as driver in the plaintiff-company and the accommodation in question was allotted to him as a licensee. Admittedly, he expired during the course of his employment. The defendant no doubt claims that she approached the plaintiff-company for providing her employment on compassionate ground and allow her to retain the demised premises, however, no evidence to this effect has been produced. She has admitted the receipt of notice under Section 106 of the Transfer of Property Act. Admittedly, he expired during the course of his employment. The defendant no doubt claims that she approached the plaintiff-company for providing her employment on compassionate ground and allow her to retain the demised premises, however, no evidence to this effect has been produced. She has admitted the receipt of notice under Section 106 of the Transfer of Property Act. Therefore, she being in unauthorized possession of the premises in question has rightly been directed to hand over the vacant possession thereof to the plaintiff-company. 9. True it is that she had approached the Labour Court, however, as per the copy of award placed on record produced in evidence by learned counsel representing the plaintiff-company, her claim stands rejected by the Labour Court also. She, therefore, has no legal right to retain the accommodation in question. Since she has admitted the plaintiff’s case on all material aspects and as there was no issue qua which onus was upon the plaintiff-company, therefore, what evidence was required to be produced by the plaintiff-company, the defendant has failed to explain. The onus to prove the issues rather was upon the defendant, as the same were framed taking into consideration her pleadings in the written statement and as such she has failed to discharge such onus, therefore, the suit has rightly been decreed against her by learned trial Court and the decree so passed has also been rightly affirmed by learned lower appellate Court. Thus, the judgment and decree cannot be said to be violative of the provisions under Orders 14 and 18 of the Code of Civil Procedure. 10. Substantial question of law at Sl. No.1 supra, therefore, does not arise at all in the present lis. 11. Since the claim of the defendant preferred before Labour Court stands dismissed, therefore, substantial question of law at Sl. No.2 also does not arise at all for adjudication in the present appeal. The present, therefore, is a case where no legal question what to speak of substantial questions as framed, arise for adjudication. On the other hand, the judgment and decree passed by both Courts below being legally and factually sustainable do not call for any interference. 12. In view of what has been said hereinabove, the appeal being devoid of any merit fails and the same is accordingly dismissed. There is, however, no order so as to costs.