ABDUL HAMID Vs. ABDUL LATIF

JUDGEMENT

(1.) This is defendant's second appeal filed against the judgment and decree dated 24.5.1982 passed by District Judge, Bahraich allowing the appeal preferred by the plaintiff, while setting aside judgment and order dated 9.3.1981 whereby the suit filed by the plaintiff was dismissed. Earlier this second appeal came up for hearing and was allowed by this Court (Hon'ble Kamal Kishore, J.) vide order dated 4.4.2001. The review petition filed against this order was also dismissed vide order dated 6.7.2001. Thereafter, the matter went before Hon'ble Supreme Court in Civil Appeal Nos. 1343-1344 of 2002 wherein the order passed in second appeal was set aside and this appeal has been remanded to this Court for decision in accordance with law upon framing of a substantial question of law in terms of Section 100 of the C.P.C. It was directed that the High Court would do well to deal with the matter expeditiously. After the remand, this Court has formulated substantial question of law on 24.9.2002.

(2.) On 12.2.2004, plaintiff-respondent to this second appeal preferred an application for dismissal of the appeal as infructuous. The case of the plaintiff-respondent in this application was that certain developments have been made and the allotment in favour of the defendant-appellant has been cancelled and the plaintiff-respondent, who was earlier sub-tenant as alleged has been allotted the shop by Zila Parishad as tenant of the shop. This Court vide order dated 13.12.2004 has rejected the application being not maintainable but without expressing any opinion on any question raised in this application. It was made clear that at the time of deciding the second appeal, this will also be the question of law whether the suit of the plaintiff as filed before the trial Court can be decreed in view of the further developments as alleged and whether the defendant-appellant can pursue the appeal in view of the pleadings and the evidence on record.

(3.) Briefly stated the facts of the case are that the plaintiff-appellant had filed the aforesaid suit for permanent injunction with the allegation that the shop in question was taken on licence by Abdul Hamid defendant No. 1 from the Zila Parishad at Rs. 75/- per mensem. He had sublet the shop to him at the rate of Rs. 100/- per month in 1977. The defendant No. 1 has been trying to eject him forcibly and was in collusion with the defendant No. 1. They have been threatening to dispossess him otherwise than in due course of law. Under the circumstances, the plaintiff had prayed for a decree of permanent injunction directing the defendants not to interfere in his possession.