CHANDRAKALI Vs. SANTOSH SINGH

JUDGEMENT

(1.) PRESENT appeal arises out of a suit filed by the plaintiffs -appellants for ejectment of the respondent from the house in dispute and for recovery of profits and damages. In brief it was pleaded that on 23.4.71 parties entered into an agreement of partnership on the basis of which the defendant used to carry on the business of soup and lemon juice in the shop in dispute. It was pleaded that valuation of the room was determined at Rs. 1100/ - and the defendant also invested an amount of Rs. 400/ -. On the other hand the defendant invested the amount of Rs. 3000/ - and started the said business. It was agreed that defendant will maintain the accounts and pay an amount of Rs. 150/ - per month to Ram Lakhan original plaintiff out of profit from the said business and balance of the profits were to be distributed in the ratio of 1/10 and 9/10 to the plaintiff and defendant respectively. It was also agreed upon that on failure of the defendant to pay the amount of profits for a period of two months the said agreement was to come to an end. On the death of Ram Lakhan the plaintiffs inherited the property in dispute. The defendant since 24.4.97 failed to pay the amount of profit in terms of the aforesaid agreement. Consequently a notice dated 25.7.97 was served upon him demanding the amount of profits. The defendant remitted the amount in question by money order claiming to be the amount of rent. The same was therefore not received and the suit was filed for ejectment, recovery of profits and damages. The suit was contested by the appellant who has pleaded that the business in question was not a partnership business but was owned by him. He was occupying the shop in dispute as a tenant. It was further pleaded that Ram Lakhan instead of rent note got executed the deed of partnership which was not binding on him as the same was never read -out to him and his signatures were obtained on the same. Initially the rate of rent was Rs. 45/ - per month but subsequently the same was enhanced to Rs. 105/ - per month as comparative accommodation was directed to be occupied by the defendant. He claimed that the amount of rent used to be paid by him and not the profits arising out of the business. Delivery of notice was also noted but the same was claimed to be based on wrong allegation. It was pleaded that the amount of rent was deposited by the defendant under Section 30 of the U.P. Act No. 13 of 1972. It was also pleaded that no valid notice under Section 106 of the Transfer of Property Act was served as such the suit was liable to be dismissed.

(2.) THE trial court on the pleadings of the parties framed as many as ten issues. Parties produced evidence oral and documentary in support of their cases. The trial court returned the findings on relevant issues in favour of the plaintiffs and decreed the suit for ejectment of the appellants and recovery of amount of profits and damages. The appellants thereafter challenged the validity of the judgment and decree passed by the trial court before the court below. The Court below without reversing the findings recorded by the trial court on various issues and simply observing that the trial court did not frame issues on the relevant points involved in the case set aside the decree passed by court and remanded the case. It was further observed that in the absence of proper issues on such points the defendant must have been misled in adducing the record of evidence which could have certainly affected the final adjudication of the case, allowed the appeal and remanded the case to the trial court for decision afresh with the direction that the trial court will frame the issues as pointed out in the body of the judgment after affording reasonable opportunity to the parties of adducing evidence. Aggrieved by the judgment and order of remand passed by the court below, the plaintiffs have filed the present writ petition.

(3.) ON the other hand learned counsel appearing for the defendant, however, supported the validity of the order impugned in the present petition. It was urged that in the absence of proper issues the case could not be adjudicated properly and the defendant could not get opportunity to adduce relevant evidence in support of his claim. Consequently, the judgment and decree passed by the trial court were vitiated.