HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 173 of 2013 Billoo S/o Shri Lallu ..…Appellant/Plaintiff Versus Nagar Palika Parishad and another .…Respondents Present :

Mr. Inder Pal Kohli, Advocate for the plaintiff / appellant.

Mr. Bhuwan Bhatt, Advocate for the respondents.

Dated: 10th September, 2020

JUDGEMENT

Hon’ble Sharad Kumar Sharma, J.

(Via Video Conferencing)

1. This is a plaintiff’s Second Appeal, wherein, the plaintiff/ appellant, herein, has challenged the impugned judgements dated 6^th December, 2013, as rendered in Civil Appeal No. 49 of 2011, Billoo Vs. Nagar Palika Parishad, Mussoorie and another, which stood dismissed by the judgement of the learned District Judge, and as a consequence thereto, it has resulted into an affirmation of the judgement and decree dated 28^th March, 2011, as rendered by the Court of Civil Judge (Senior Division), Dehradun, in Original Suit No. 519 of 2002, Billoo Vs. Nagar Palika Parishad and another, by virtue of which, the Suit of the appellant for grant of decree of permanent injunction, preferred by the plaintiff/ appellant was dismissed. As a consequence thereto, in fact, the present Second Appeal arises out of a concurrent judgement of the Court below.

2. The Second Appeal was admitted by the Coordinate Bench of this Court by the order dated 27^th December, 2013, and the following substantial question of law was framed, which is quoted hereunder :-

“Whether the respondent authorities are entitled to evict the appellant/plaintiff without adopting due process of law when admittedly the appellant/plaintiff was inducted in the property in question by the respondent authorities themselves”

3. While proceeding to hear the Counsel for the parties to the present Second Appeal, and having given a thoughtful consideration, this Court is of the view that it is a fit case, in which, this Court, should exercise its power under Sub-section (4) of Section 100 of the CPC by formulating an additional substantial question of law to the effect that “as to whether the judgement of the Appellate Court suffered from the vices of non-compliance of the provisions contained Order 41 Rule 31 of the CPC ?”

4. After having heard the learned counsel for the parties at length, this Court is of the view that certain essential factual backdrop of the case are required to be considered. The plaint case of the plaintiff/appellant, herein, which was instituted by him before the Court of Civil Judge (Senior Division) on 25^th July, 2002, was to the effect, that he had moved an application on 3^rd January, 1995, for allotment of a space wherefrom, he could operate his business after establishment of a Khokha. It is an admitted case of the plaintiff/appellant, herein, that his aforesaid application dated 3^rd January, 1995, was processed by the defendant/respondents and the application thus preferred before plaintiff/appellant was accepted by it, and subsequent thereto, an order was passed by the defendant/respondent on 6^th February, 1995, by virtue of which, a small piece of land, having an area of 8 feet x 5 feet, situated near Mosanic Lodge, which was situated near Roadways Bus Stop, was licenced to be used by him, on the rent, which was payable @ Rs.2,000/- per annum. It is the case of the plaintiff/appellant, in the Suit that under the aforesaid licence, which was initially granted for a period of 11 months, he had constructed his Khokha and was operating his business, by way of a Tea Stall called as ‘Billoo Tea Stall’.

5. Since the permission granted by the Nagar Palika; to the appellant as a licensee, to use the particular land was for the construction of Kohoka, the said decision was not welcomed by the neighbourer Hotel Owner, named as Hari Raj Singh, the plaintiff’s case in the plaint is that Hari Raj Singh had forcefully demolished the Kokha constructed on a land thus allotted to him on 6^th September, 1999, as a consequence thereto, the petitioner contends that he has approached the respondent, as well as the