UMA SHANKER SETH Vs. KORESHA BEGUM

JUDGEMENT

(1.) INSPITE of sufficient service under Chapter VIII Rule 12 of the High Court Rules as per officer report dated 14.7.2003, no one has appeared on behalf of respondent No. 1. This is tenant's writ petition against whom a suit being S.C.C. suit No. 36 of 1988 was filed by the respondent No. 1. The suit was decreed by J.S.C.C. Ghazipur through judgment and decree dated 16.1.1990 under Order VIII, Rule 10, C.P.C., as defendant petitioner inspite of sufficient opportunities did not file written statement. Tenant petitioner filed revision against the said decree being S.C.C. Revision No. 17 of 1990. The revision has been dismissed by II Additional District Judge, Ghazipur through judgment and order dated 23.1.1991. This writ petition is directed against the aforesaid judgment and decree.

(2.) ANNEXURE 1 is the copy of the plaint. The first relief under the plaint is for recovery of Rs. 1600/ - as arrears of rent and damages for use and occupation. The second relief is that with effect from September, 1988, decree for damages must be awarded against the defendant and in favour of the plaintiff till the date of possession. There is no relief for ejectment claimed in the plaint. In para 6 of the plaint dealing with valuation, it is mentioned that the valuation of the suit for the purposes of jurisdiction and payment of Court fees is Rs. 1600/ - and Court fees of Rs. 240.50/ - is being paid. Relief of ejectment is valued at one year's rent. The said valuation is not in the plaint, this also indicates that plaintiff did not intend to seek relief of ejectment against the defendant petitioner. The Trial Court in the operative portion of the judgment dated 16.1.1990 also mentioned that plaintiff was entitled to receive Rs. 1600/ - from the person and property of the defendant and she was also entitled to damages for use and occupation at the rate of Rs. 50/ - per month with effect from September, 1988 till the date she obtained possession (suit was filed in August 1988).

(3.) HOWEVER , as far as the decree awarding damages from September, 1988 i.e. after filing of the plaint till the date of possession is concerned it was completely beyond jurisdiction. In a suit relief can be granted only for the period till the filing of the suit with two exceptions. First is that, if the suit is for partition and possession then pendente lite and future mesne profits may be awarded (Order 20, Rule 18, C.P.C.) and the other is that if the suit is for recovery of possession of immovable property and for rent or damages for use and occupation then alongwith decree for possession, damages for use and occupation pendente lite and future till the date of actual possession may be awarded (Order 20, Rule 12, C.P.C.). However, in the instant case neither any relief for ejectment was sought for nor granted. The Courts below therefore had absolutely no jurisdiction to award damages from the date after the filing of the suit i.e. September, 1988. In this regard reference may be made to : AIR 1967 SC 1575. Accordingly writ petition is allowed in part, judgment and decree passed by the Trial Court regarding payment of Rs. 1600/ - is confirmed. Judgments and decree passed by the Trial Court regarding payment of damages with effect from September, 1988 onwards is set aside.