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2025 DIGILAW 407 (JHR)

Sarfaraj Ahmad v. Md. Nizamuddin Ansari

2025-02-13

ANUBHA RAWAT CHOUDHARY

body2025
JUDGMENT : Anubha Rawat Choudhary, J. 1. Heard the learned counsel appearing on behalf of the appellant. 2. The learned counsel for the appellant has submitted that the appellant was plaintiff before the learned trial court and the suit property was a flat of Housing Board. 3. The prayer in the suit was that the defendant No. 1 to 3 were not entitled to evict the plaintiff forcibly till the pendency of prayer before the defendant No. 4 (The Housing Board). 4. The original allotment was made in favour of defendant No. 2 which was prior point of time and the plaintiff came in occupation of the suit premises and their prayer for allotment was pending before the defendant No. 4. 5. He submits that in the suit a counterclaim was also filed by the defendant No. 2 asserting that defendant No. 2 was legally allotted the quarter and was ready to deposit the arrears of rent to the housing board and had valid right to get the said quarter in vacant possession from the plaintiff. It was asserted by defendant No. 2 that the plaintiff was only having permissive possession and there was no allotment in favour of the plaintiff. The defendant claimed relief through counter claim that the quarter must be handed over to him without any objection and defendant No. 2 claimed the declaration of right over the said quarter allotted to him by defendant No. 4 on 18.03.1994 and claimed that the plaintiff was liable to be evicted. 6. The learned counsel submits that although the counter claim was filed, but the same was never registered as such and therefore, there was no occasion for the plaintiff to file a written statement to the counter claim. He has also submitted that neither any issue was framed in connection with the counter claim nor parties led any evidence in connection with the counter claim. 7. Defendant No. 1 to 3 have no legal right to evict the plaintiff from the suit premises since there was an allotment in favour of the plaintiff by the defendant No. 4. The legality of allotment was not questioned by the defendant No. 1 to 3 nor there was any evidence for such legality of allotment and in the said scenario it was held that defendant No. 1 to 3 have no right to evict the plaintiff from the suit premises. 8. The legality of allotment was not questioned by the defendant No. 1 to 3 nor there was any evidence for such legality of allotment and in the said scenario it was held that defendant No. 1 to 3 have no right to evict the plaintiff from the suit premises. 8. The learned trial court has recorded that there was no evidence on record. The relief prayed for by the plaintiff was infructuous. The relief prayed for by the defendant No. 1 to 3 cannot be decided in their favour in view of the allotment having been made in favour of the plaintiff. It was also recorded that there was no evidence on record that allotment in favour of the defendant has been cancelled prior to allotment in favour of the plaintiff. Hence, the suit was dismissed along with counter claim. 9. The learned counsel submits that since there was a clear observation that the defendant No. 1 to 3 had no right to evict the plaintiff from the suit premises. The defendant filed their appeal to the extent the counter claim was dismissed. The learned counsel has submitted that the counter claim has been allowed by the appellate court after observing that the plaintiff and the defendant No. 4 did not file any reply or written statement to the counter claim. Paragraph 26 of the appellant court’s judgment reveal that the plaint was filed on 17.05.2012. Counter claim was filed by the defendant No. 2 on 13.05.2013 and the written statement was filed by defendant No. 4 on 09.07.2013 but the defendant No. 4 in his written statement have not responded to any para of the counter claim. The sole point for determination by the appellate court was- whether the learned trial court has rightly dismissed the counter claim of the plaintiff? The learned appellate court held that the trial court wrongly dismissed the counter claim and allowed the appeal and the judgment of dismissal of counter claim passed by the trial court was set aside and there was a direction that the defendant No. 2 was entitled to be put in khass possession of the suit premises after evicting the plaintiff by due process of law. 10. The learned counsel has submitted that since the counter claim was not separately registered, no relief could have been granted with respect to the counter claim. 10. The learned counsel has submitted that since the counter claim was not separately registered, no relief could have been granted with respect to the counter claim. The learned counsel submits that on such premise, the matter ought to have been remanded to the learned trial court. He has also submitted that in absence of any evidence in connection with counter claim, the evidence in the suit could not have been taken into consideration to allow the counter claim particularly when the plaintiff did not file any written statement to the counter claim having not been formally registered. 11. Considering the aforesaid submission, this appeal is admitted for hearing on the following substantial question of law. 1. Whether the learned appellate court failed to consider that the provision of Order VIII rule 6A of the Code of Civil Procedure was not duly followed by the learned trial court as the same itself was not registered separately and consequently no written statement was filed by the plaintiff to the counter claim and no evidence was led in connection with the counter claim? 12. Issue notice to the respondents under ordinary process for which requisites by filed by the appellant within a period of one week. 13. In the meantime, let the records be called for from the concerned courts. 14. Let this order be communicated to the concerned court through “FAX/E-mail”. 15. Post this case on 06 th March, 2025 under appropriate heading.