Research › Search › Judgment

Orissa High Court · body

2018 DIGILAW 443 (ORI)

Rajendra Sao v. Nadeem Ahmed

2018-04-20

BISWANATH RATH

body2018
JUDGMENT Biswanath Rath, J. - This matter involves a challenge to the order dated 09.03.2018 passed by the Civil Judge (Junior Division), Rourkela in Civil Suit No. 16 of 2015 appearing at Annexure -5, thereby rejecting an application filed by the defendant-petitioner under Order-26, Rule-9 of the Code of Civil Procedure. 2. Short background involved in this case is that Civil Suit No. 16 of 2015 is filed by the opposite parties herein praying for eviction of the petitioner from the suit schedule shop room measuring 8 feet x 24 feet alleged to have been constructed on Hal Plot No. 25/1168, Khata No. 129/16 in Mouza-Bisra, P.S.- Bisra, District-Sundargarh as claimed by the plaintiffs. The defendant, the petitioner herein on his appearance filed written statement, inter-alia, contending that there is no shop room constructed over the suit schedule property and the petitioner neither paid any rent to the opposite parties at the same time disputing existence of 'Landlord' and 'Tenant' between the parties. Admittedly, evidence from both sides is concluded and it is at this point of time and before commencement of the argument, the defendant, the petitioner herein filed the petition under Order-26, Rule-9 of C.P.C. for appointment of a Survey Knowing Commissioner to conduct local investigation / enquiry to find out the physical features of the said Hal Plot No. 25/1168, Khata No. 129/16, Mouza-Bisra, P.S.- Bisra including the ascertainment of its distance from the Main road and submitting report for effective adjudication of the dispute involved therein. In filing the application the petitioner apart from placing the pleadings of the respective parties, taking assistance of the evidence of P.W.1 claiming to be his admission in paragraph-39 of cross-examination to the effect that he has not filed any document to show that "Ekram Market Complex" situates over Plot No. 25/1168 of Khata No. 129/16 and that except this plot, the plaintiffs have no other land. The petitioner-defendant also taking assistance of the statement in cross-examination of the plaintiffs at page-40, contended that the plaintiffs even admitted that Plot No. 25/1168 of Khata No. 129/16 does not situate about 176 feet away from Main Road. It is in the above background of the matter, petitioner defendant justified the necessity of deputing a Commission to find out the actual position of the shop room. 3. It is in the above background of the matter, petitioner defendant justified the necessity of deputing a Commission to find out the actual position of the shop room. 3. The opposite parties-plaintiffs filing their objection to the aforesaid application submitted that the suit involved is for eviction of the petitioner-defendant and also for realization of arrear rent and damages. It is also contended that there exists a tenancy agreement executed between the opposite partiesplaintiffs and the petitioner-defendant and marked as Ext.3. Signature of the petitioner-defendant in Ext.3 has also been admitted by the petitioner-defendant in paragraph-39 of his evidence. In paragraph-33 the petitioner-defendant even has admitted that he is a tenant in respect of the suit schedule property, the petitioner-defendant also admitted in his evidence that the schedule shop situates in "Ekram Market complex". Taking help of the provision at Sections 115 and 116 of the Evidence Act the petitioner-defendant also contended that for the existence of the agreement between the parties accepting 'Landlord' and 'Tenantship' between the parties involved therein, a party to such document is debarred from taking up the dispute on 'Landlord' and 'Tenant' relationship. The plaintiffs also objected the petition on the premises that in an earlier attempt of the petitioner-defendant in a petition under Order-16, Rule-1 of C.P.C. asking the Court to direct the Tahasildar, Bisra to produce the original Khata No. 13 and Khata No. 129/2 having been rejected and for such development, subsequent petition was also otherwise not maintainable. It is thus contended that the attempt of the petitioner-defendant through the present petition is to overcome the rejection of application under Order-16, Rule-1 of CPC at an earlier occasion involving the same suit. 4. Considering the rival contentions of the parties, the trial Court on the observation that for the materials available through pleading as well as evidence oral and material, there is sufficient material to decide the suit on its own merit and without entering into any further enquiry by way of Commission. 5. Being aggrieved by the rejection of the application under Order-26, Rule-9 of CPC, the petitioner-defendant filed the present Civil Miscellaneous Petition. 6. Besides, reiterating the stand taken in the application under Order-26, Rule-9 of CPC, Shri Udgata, learned counsel appearing for the petitioner taking this Court again to some recording in the evidence, submitted that there has been erroneous appreciation of evidence resulting the bad impugned order. 6. Besides, reiterating the stand taken in the application under Order-26, Rule-9 of CPC, Shri Udgata, learned counsel appearing for the petitioner taking this Court again to some recording in the evidence, submitted that there has been erroneous appreciation of evidence resulting the bad impugned order. Shri Udgata, learned counsel appearing for the petitioner referring to the evidence of both the sides, submitted that for the confusion arisen involving the location of the shop room, for the interest of justice, deputation of a Commission was very much essential. Shri Udgata, learned counsel appearing for the petitioner thus contended that for existence of a dispute with regard to identification and location of the shop room, the trial Court failed in appreciating such dispute and arrived at the wrong and illegal impugned order which unless be entertained and allowed, there will be no effective adjudication of the dispute involved herein. Shri Udgata, learned counsel appearing for the petitioner also referring to two decisions of this Court in the case of Mahendranath Parida v. Purnananda Parida and others, reported in AIR 1988 Orissa 248 and further in the case of Managing Committee, Baptist Church Middle English School, Berhampur and another v. State of Orissa and others, reported in AIR 1988 Orissa 250 , submitted that for the support of both the aforesaid decisions to the case of the petitioner defendant, the impugned order is otherwise against law. Under the circumstances, Shri Udgata, learned counsel appearing for the petitioner prayed this Court for interfering in the impugned order and setting aside the same, thereby allowing the application under Order-26, Rule-9 of C.P.C. 7. Shri Goutam Mishra, learned counsel appearing for the opposite parties-plaintiffs on reiteration of the stand of his party in the Court below filed by way of objection to the petition under Order-26, Rule-9 of C.P.C. and as appearing at Annexure-4, submitted that for the clear admission of existence of an agreement between the plaintiffs and the defendant, not only marked as Ext.3 but also marked without objection and further for the admission of the defendant of his signature on the agreement vide Ext.3, submitted that there has been right appreciation of the issue involved. Taking this Court to the recording of evidence involving both parties, Shri Mishra, learned counsel appearing for the opposite parties attempted to justify the rejection of the application under Order-26, Rule-9 of C.P.C. In the premises, Shri Mishra, learned counsel appearing for the opposite parties prayed for dismissal of the Civil Miscellaneous Petition. 8. Considering the rival contentions of the parties, this Court finds that the suit is admittedly for a decree of eviction of the defendant from the suit shop room and putting the plaintiffs to possession thereof, also for a decree for a sum of Rs. 5,400/- recoverable from the defendant towards arrear rent from 01.01.2015 to 30.06.2015 and also for a decree for damages @ Rs. 200/- per day with effect from 11.07.2015 till the eviction of the defendant. It appears, the plaintiffs making such a claim have the pleading that over the disputed property the plaintiffs have a market complex in the name and style "Ekram Market complex". The defendant has been housed as a tenant under the plaintiffs in respect of a particular shop room measuring an area of 8 feet x 24 feet having pucca wall with RCC roof fitted with shutter etc. The plaintiffs also claimed that the tenancy is created on a monthly rate basis and period of tenancy was 11 months after the parties, i.e., 'Landlord' and 'Tenant' entered into execution of an agreement. The tenancy agreement also executed as Ext.3. It is on the premises of violation of the terms and conditions by the tenant, particularly non-payment of rent in clear violation of the conditions in the agreement, the plaintiffs filed the suit for the aforesaid reliefs. The defendant on his appearance filed the written statement while objecting the claim by the plaintiffs submitted that the 'Landlord', the plaintiffs have no title over the disputed property, thereby asked the plaintiffs to establish their title before entering into such controversies. On the basis of some transaction indicated therein, the defendant disputed the existence of the shop room over the disputed property. 9. This Court during perusal of the written statement at paragraph-7 finds, defendant while admitting the plaint averment in paragraph-2 in paragraph-6, in paragraph-7, contended that the plaintiffs are not the only record holders of the land under Khata No. 129/16, the schedule property involved in the suit and claimed the dismissal of the suit for non-joinder of necessary parties. 9. This Court during perusal of the written statement at paragraph-7 finds, defendant while admitting the plaint averment in paragraph-2 in paragraph-6, in paragraph-7, contended that the plaintiffs are not the only record holders of the land under Khata No. 129/16, the schedule property involved in the suit and claimed the dismissal of the suit for non-joinder of necessary parties. Defendant though has the defence that the market complex in which he is housed is not by way of any tenancy agreement, at the same time the defendant again submitted that the tenancy agreement dated 15.12.2001, the basis of the plaintiff in filing the suit, has never been acted upon. Thus, it appears that the defendant blowing hot and cold together. 10. It is at this stage, considering the necessity of the deputation of a Commission for the particular identification purpose, under the above facts pleaded by both parties, this Court now enters into the evidence led by both the parties. In the process, this Court going through the evidence of P.W.1 finds that the P.W.1 has been able to not only establish the case of installation of the shop room in Ekram market complex and the tenancy was created by virtue of an agreement between the parties being marked as Ext.3 and marked without objection, has also filed the R.O.R. to establish his case. For the pendency of the suit, this Court does not want to deal with much of the evidence as it is likely to affect the ultimate trial of the suit. It is at this stage, looking to the cross-examination of the defendant, this Court finds, the defendant failed in producing any document to satisfy that the Ekram market is situated over Plot No. 25/1168, Khata No. 129/16 at the same time admitting that he is not in a position to say the plot number of the land on which Ekram market situates. In paragraph-33 of the cross-examination of the defendant, this Court also noticed that the defendant had a clear admission that he is a tenant in the suit schedule property and further that the suit schedule shop situates in Ekram market complex and that he has not taken any other shop on rent except the suit shop, even in paragraph-39 the defendant while admitting the existence of Ext.3 even admitted his signature on Ext.3 in the capacity of a tenant. 11. 11. It is under the circumstances and for the discussions made hereinabove, this Court finds, there is sufficient material available to consider the merit involving the suit and this Court also observes that in the event application under Order-26, Rule-9 of CPC with such background is accepted, it will be leading to collection of evidence for a party after failure on the part of such party establishing his case orally and documentary. Looking to the purpose behind Order-26, Rule-9 of C.P.C. and further looking to the observations as well as the findings in the impugned order, this Court finds, there has been right appreciation of the dispute involved, particularly taking into account the restrictions involved in the provision at Order-26, Rule-9 of C.P.C. This Court has gone through both the decisions cited by Shri Udgata, learned counsel appearing for the petitioner and taken note hereinabove, but the circumstances indicated hereinabove, none of the decisions referred to have application to the case at hand. 12. In the circumstances, this Court finds no scope for interference in the impugned order, consequently dismisses the Civil Miscellaneous Petition for having no merit. Evidence since already closed, the trial Court is directed to conclude the suit proceeding within a period of two months hence at the maximum. This Court observes that whatever observation made hereinabove is only for the purpose of consideration of merit involving application under Order-26, Rule-9 of C.P.C. and these observations have nothing to do with the ultimate decision involving the suit. 13. The Civil Miscellaneous Petition thus stand dismissed. In the circumstances, there is no order as to costs.