Back
GAUHATI HIGH COURT
S. N. PHUKAN, J.
Sanjoy Mitra -Appellant
Versus
Bhupendra Nath Bhattacharjee -Respondent
Civil Revn. No. 85 of 1992
Decided On : 29-03-1993
CIVIL PROCEDURE CODE - SECTION 115, 151 - REMAND - SUBSEQUENT EVENTS - CONSIDERATION BY COURT - POWER OF REVISIONAL COURT TO PASS DECREE - CONCESSION BY COUNSEL - VALIDITY OF FINDINGS - NON-FRAMING OF ISSUES - EFFECT.
Fact of the Case:
Plaintiffs filed a suit for ejectment of defendants from the suit premises on various grounds including dilapidated condition of the house, bona fide requirement, default, and nuisance. The trial court decreed the suit, but the lower appellate court set aside the decree and remanded the case for re-trial after framing issues on the question of defaulter, dilapidated condition, nuisance, bona fide requirement, and unauthorized construction.
Finding of the Court:
The court held that the revisional court can give relief in a case provided the subsequent facts are not disputed. The court also held that the learned lower appellate court, which was the final court of fact, could have entered into the merit of the case and decided the dispute.
Issues: 1. Whether the revisional court can pass a decree acting as a first appellate court? 2. Whether the subsequent change of circumstances can be considered by the court? 3. Whether the concession given by the counsel for the landlord was only in respect of non-framing of issue and not for validity of the finding of the learned court below? 4. Whether the non-framing of issues is fatal if both the parties go into trial knowing the case of each other?
Ratio Decidendi: 1. The court held that a revisional court can give relief in a case provided the subsequent facts are not disputed. 2. The court held that the subsequent events can be considered by the court if such events or material are necessary to decide the question in dispute. 3. The court held that it is difficult to accept the contention that concession was only in respect of non-framing of issue and not for validity of the finding of the learned court below. 4. The court held that the non-framing of issues may not be fatal if both the parties go into trial knowing the case of each other.
Final Decision: The court allowed the petition by setting aside the impugned judgment and decree. The court remanded the case to the learned lower appellate court to decide the matter within a period of 2 months and thereafter the judgment shall be delivered within a period of one month.
This petition u/S. 115 read with S. 151, C.P.C. is directed against the judgment and order dated 22-1-92 passed by the learned Addl. District Judge, Kamrup at Gauhati in Tital Appeal No. 1/90. By this impugned judgment and order, the learned lower appellate court set aside the decree passed by the learned Asstt. District Judge No. 2, Gauhati in Title Suit No. 13/84 and remanded the case for trial after framing necessary issues.
2. Briefly stated the facts are as follows :-
The plaintiffs who are the present petitioners laid the Title Suit No. 13/94 against the opp. parties for their ejectment on various grounds including the construction of the house as it is in dilapidated condition, bona fide requirement, default and nuisance was also pleaded. It is not necessary to state fully the grounds for which the decree for ejectment was prayed. The suit was contested by defendant-opp. parties denying the allegations of defaulter, bona fide requirement, unauthorised construction, nuisance and that the house is not in a dilapidated condition. There was a prayer by the plaintiffs for decree for arrear of rent and other reliefs.
3. On the pleadings the learned trial court framed as many as 7 issues which are as follows :-
1) Whether the suit is maintainable in law ?
2) Whether the plaintiffs have cause of action for the suit against the defendant ?
3) Whether the relationship of landlord and tenant exist between the parties to the suit premises ?
4) Whether the defendant is liable for ejectment from the suit premises as claimed by the plaintiffs ?
5) Whether the arrear rent as claimed by the plaintiffs is due and unpaid ?
6) Whether the plaintiff is entitled to the relief claimed to the suit against the defendant ?
7) What relief or reliefs are the parties are entitled to ?
4. The learned trial court decreed the suit which was set aside by the impugned judgment. The learned lower appellate court remanded the case for re-trial after framing issues on the question of defaulter (2) dilapidated condition; (3) nuisance; (4) bona fide requirement and (5) unauthorised construction. Parties are also allowed to adduce further evidence. It may be stated that the original plaintiff No. 1 was the mother of the plaintiff No. 2 and during the pendency of the present petition she died and by order of this court her name was struck off.
5. I have heard Mr. B. K. Das, learned Sr. counsel for the petitioner and Mr. B. K. Goswami, learned counsel for the opp. parties.
6. It may be stated that during the pendency of the present petition there was subsequent change of circumstances and as such an affidavit was filed. A counter to that affidavit has also been filed by the tenant-opp. parties. I shall deal with these affidavits at the appropriate place.
7. According to Mr. Das in view of the subsequent change of circumstances this revisional court can decide the matter finally and pass a decree for ejectment. In this connection, learned counsel has placed reliance in a decision of the apex court in Ramesh Kumar v. Kesho Ram, AIR 1992 SC 700. On the other hand Mr. Goswami has urged that the revisional court may not pass a decree acting as a first appellate court and that apart learned counsel has urged that there was dispute regarding subsequent change of circumstances. Regarding change of circumstances after the decree was passed, in the affidavit filed by the landlord-petitioner it has been alleged that the suit premises has been kept vacant by the tenant as he has taken a separate house on rent from the month of April, 1992 by paying a monthly rent of Rupees 3,500/-. Mr. Das drawing my attention to clause (5) of the lease agreement entered into by the landlord and the tenant executed on 30th day of October, 1968 has urged that it was agreed to by the parties that no trade or business shall be carried on in the said house and premises and the same shall be used as a private dwelling house only by the opposite party. The said agreement has been marked as Ext. 3 b
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
