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2021 DIGILAW 162 (JK)

Mulkh Raj v. Madan Mohan

2021-04-09

SANJEEV KUMAR

body2021
Judgment : Sanjeev Kumar, J. 1. The petitioner is the defendant in a suit filed by the respondent before the Court of learned Sub-Judge (Additional Special Mobile Magistrate), Udhampur (hereinafter referred to as the ‘trial Court’) for ejectment of the petitioner from a shop situate at Gole Market, Udhampur. For facility of reference, the petitioner and the respondent in this petition shall hereinafter be referred to as the ‘defendant’ and the ‘plaintiff’ respectively. The defendant is aggrieved by an order dated 09.09.2017 whereby the part statement of the plaintiff through his counsel under Order 10 of CPC has been recorded as also order dated 17.01.2018 whereby the issues have been framed by the learned trial Court. The defendant is also aggrieved of order dated 21.08.2018 whereby the application for reframing of issues filed by the defendant has been dismissed by the trial Court. 2. All the three orders aforesaid are neither appealable, nor revisable under the Code of Civil Procedure and, therefore, in lieu thereof, the petitioner has invoked the power of superintendence of this Court vested under Article 227 of the Constitution. 3. Before dealing with the specific challenge taken by the petitioner to the impugned orders, it is appropriate to notice few facts which are material for the disposal of this petition. 4. A suit for ejectment of the defendant filed by the plaintiff is subjudice in the trial Court. The plaintiff has sought the eviction of the defendant on the solitary ground of personal necessity. There is no relief sought with regard to the arrears of rent qua the suit shop, though it is claimed by the plaintiff that the suit shop was initially rented out to the defendant w.e.f 01.08.2006 on the monthly rent of Rs.900/- which was subsequently enhanced mutually by the parties to Rs.2000 per month. This claim of the plaintiff is denied by the defendant, who has claimed and pleaded in his written statement that initially, the monthly rental of the suit shop was Rs.650/- per month which was later on enhanced to Rs.900 per month. This fact is witnessed by a compromise deed executed by the parties. The defendant has also denied that the suit shop is required by the plaintiff for any bonafide personal use and occupation. 5. This fact is witnessed by a compromise deed executed by the parties. The defendant has also denied that the suit shop is required by the plaintiff for any bonafide personal use and occupation. 5. After the filing of the written statement, it seems that the trial Court directed the parties to appear for recording of their statements under Order 10 CPC. The part statement of the plaintiff was recorded on 05.08.2017 and the matter was fixed for 09.09.2017. On 09.09.2017, the trial Court instead of recording the deferred statement of the plaintiff recorded the fresh statement of counsel for the plaintiff. The objection raised by the defendant against the recording of the statement of learned counsel for the plaintiff was, however, turned down by the trial Court. The trial Court, after recording the statement of learned counsel for the plaintiff as also of the defendant under Order 10 CPC, framed the following issues: (i) Whether the suit shop is reasonably and bonafidely required by the plaintiff for his own use to start some business with the aid of his wife due to his disablement to augment his pensionary income to cope the needs of his family comprising of two sons and a daughter undergoing studies ? OPP (ii) Whether the income of the defendant from the suit shop is the only source of livelihood for defendant and his family ? OPD (iii) What will be the comparative advantages and this disadvantages of parties in case of eviction ? OP Parties (iv) whether need of parties can be met by partial eviction ? (v) Relief. 6. Thereafter the plaintiff was directed to lead his evidence. The defendant feeling dissatisfied with the framing of issues moved an application on 29.05.2018 purportedly under Order 14 Rule 5 CPC seeking reframing of some of the issues. This application was dismissed by the trial Court vide order dated 21.08.2018 primarily on the ground that since the relationship of landlord and tenant was admitted by the parties and, therefore, all other allied facts with regard to the tenancy were subsumed in the issues framed and, thus, there was hardly any necessity to reframe the issues. 7. This application was dismissed by the trial Court vide order dated 21.08.2018 primarily on the ground that since the relationship of landlord and tenant was admitted by the parties and, therefore, all other allied facts with regard to the tenancy were subsumed in the issues framed and, thus, there was hardly any necessity to reframe the issues. 7. The defendant, who is petitioner before this Court, is aggrieved of the impugned orders and has challenged the same, inter alia, on the following grounds; (i) that the recording of statement of learned counsel for the plaintiff after recording part statement of the plaintiff in person was not permissible under Order 10 CPC and, therefore, patent illegality was committed by the trial Court by recording the statement of learned counsel for the plaintiff on 09.09.2017. (ii) that the order dated 21.08.2018 whereby the application of the petitioner for reframing of issues was dismissed, is not in consonance with law as the trial Court is obliged in law to frame the issues where there is a variance in the pleadings of the parties. The trial Court by omitting to frame the issue with regard to the rate of monthly rent agreed to by the parties has committed a gross illegality resulting into miscarriage of justice. 8. Having heard learned counsel for the parties and perused the record, I find no merit in the submissions of learned counsel for the defendant. 9. A suit for eviction filed by the plaintiff is pending adjudication before the trial Court. After filing of written statement by the defendant, the trial Court proceeded to record the statement of the parties under Order 10 CPC. The object behind examination of parties by the Court under Order 10 CPC is to ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement, if any, of the opposite party. The Court shall record such admissions and denials. Apart from recording the admissions and denials, the Court would examine the party or companion of a party with a view to elucidate matters in controversy in the suit and the substance of such examination is reduced in writing. 10. It is trite that examination of parties under Order 10 CPC can be of the party, his companion or the pleader representing him. 10. It is trite that examination of parties under Order 10 CPC can be of the party, his companion or the pleader representing him. The party, whether plaintiff or defendant, is not subjected to any cross-examination and the statement made by a party does not have any evidentiary value for determination of the lis. Viewed from this angle, one would agree that examination of a party in person is not mandatory and it can be of the counsel or even companion of the party who is able to answer the material questions relating to the suit. 11. There is no denying the fact that on 05.08.2017, the statement of plaintiff was recorded in part and the same was deferred. The suit was directed to come up on 09.09.2017. On 09.09.2017, the deferred statement of plaintiff was not completed, but instead statement of learned counsel for the plaintiff was recorded. Though the procedure adopted by the trial Court seems to be unconventional, yet it is difficult to say that, by recording the statement of learned counsel for the plaintiff, instead of completing the statement of the plaintiff, the trial Court has committed such illegality that prejudices the defendant in any manner. Looking to the object of examination of parties under Order 10 CPC and the prescription in the order itself that even the statement of learned counsel for the party can also be recorded by the Court, I do not think that the order impugned dated 09.09.2017 has caused any prejudice much less any miscarriage of justice to the defendant. The challenge to the order 09.09.2017, thus, fails. 12. It is not rarest of rare case of gross illegality where this Court ought to exercise its power of superintendence vested under Article 227 of the Constitution. It may be emphasized that the power of superintendence is not a substitute for civil revision. 13. The challenge to the order 09.09.2017, thus, fails. 12. It is not rarest of rare case of gross illegality where this Court ought to exercise its power of superintendence vested under Article 227 of the Constitution. It may be emphasized that the power of superintendence is not a substitute for civil revision. 13. Coming to the order dated 21.08.2018 whereby the application of the defendant for reframing of issues has been dismissed, the plea of the defendant is that since he has specifically taken a plea in his written statement that the agreed rental of the suit shop is Rs.900 per month and that the claim of the plaintiff that it is Rs.1200/- per month is incorrect, as such, the trial Court ought to have struck the issue with regard to actual rate of monthly rent of the suit shop agreed to between the parties. The refusal by the Court to frame this vital issue has tilted the balance in favour of the plaintiff and has, thus, prejudiced the defendant irreparably. 14. Having given my thoughtful consideration to this aspect of the matter, I find no substance in the plea raised by the defendant. Admittedly, the suit is for ejectment on the ground of personal necessity and the plaintiff has not claimed any arrears of rent. In such situation, where suit is for eviction simplicitor, the issue as to what is the agreed rate of rent per month qua the suit shop is not material for determination of the lis. Rule 1 of Order 14 CPC clearly provides that the issues arise when a material proposition of fact or law is affirmed by one party and denied by the other and material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. It is, thus, evident that it is not every assertion made by the plaintiff and denied by the defendant that would give rise to issue in a suit between the parties. It is only the material proposition affirmed by one party and denied by other party that would give rise to an issue of fact or law, to be determined in the suit. It is only the material proposition affirmed by one party and denied by other party that would give rise to an issue of fact or law, to be determined in the suit. In a suit for eviction simplictor, where there is no prayer for decree for recovery of rental, the proposition of fact affirmed by the plaintiff that the monthly rental of the suit shop is Rs.2000/- and denied by the defendant is not a material proposition that may give rise to an issue between the parties. 15. The trial Court has, thus, correctly rejected the claim of the defendant for framing of an additional issue. I see no infirmity or illegality in the order of the trial Court. The essential issues that would invariably arise in a suit for eviction are the one framed by the trial Court and reproduced hereinabove. All other allied matters of dispute like whether the plaintiff has alternate accommodation to satisfy his need would subsume in the issue of bona fide personal necessity already framed and are matter of evidence. 16. For the foregoing reasons, I do not find it a fit case for invoking the powers of superintendence of this Court vested under Article 227 of the Constitution. Accordingly, the present writ petition is dismissed.