DEELIP Vs. YAKUB KHAN

JUDGEMENT

(1.) The appellant (original plaintiff hereafter referred as plaintiff) had filed Regular Civil Suit No.1900/2012 (Old Special Civil Suit No.535/2008) for mandatory injunction and recovery of damages in lieu of licence fee with interest from respondent (original defendant hereafter referred to as defendant). The suit was decreed on 30.3.2013. The defendant filed Regular Civil Appeal No.138/2013, which came to be allowed on 30.9.2014 and the judgment and decree of the trial Court was set aside and the appellate Court remanded the matter to the trial Court with directions to frame proper issues and decide the suit by giving sufficient opportunity to the parties. It is against this order dated 30.9.2014 of the appellate Court that the present Appeal from Order has been filed.

(2.) Facts material for dealing with the present matter can be stated as under :

(3.) The suit was resisted by defendant by filing written statement. In substance, defendant claimed that there was and is no relationship of licensor or licensee and landlord and tenant between the parties. It is claimed that, he was tenant of late Harinarayan who was landlord and maternal uncle of plaintiff. He had been paying rent to late Harinarayan. Defendant claimed that the suit suffered from non-joinder and mis-joinder of parties. The suit was not tenable in the present forum. It is claimed that, plaintiff had no concern with the suit property. Under the garb of political support and influential persons, plaintiff got prepared bogus documents about leave and licence cheating the defendant, contending that plaintiff will assist defendant to obtain licence from authorities. In the last period of Harinarayan, plaintiff was collecting rent. The leave and licence was false and got executed under duress for which defendant filed complaints. The decree in Rent Suit No.47/2006 was obtained by fraud. Defendant was never served with the summons of that suit. Plaintiff is not landlord or licensor of the suit shop. Defendant rightly filed Regular Civil Suit No.435/2006 as Interpleader Suit as after demise of Harinarayan, daughter of Harinarayan and widow were claiming rent from defendant. The plaintiff, with the help of goondas, kidnapped defendant and under coercion and duress and threat to kill plaintiff, prepared bogus application of withdrawal of the suit and also filed false Regular Civil Suit No.638/2006. Plaintiff threatened defendant that he should give evidence in Regular Civil Suit No.638/2006. However, the contents of the suit and affidavit are false and incorrect. The dispute regarding title of the suit property is pending. The judgment and decree passed in Rent Suit No.47/2006 came to be set aside by the Court in MARJI No.22/2007 on 30.9.2009. The defendant was inducted in the suit property by late Harinarayan Jaiswal as tenant and he handed over possession of the suit premises on 24.9.2010 under possession receipt to Nandranibai, the wife of Harinarayan Jaiswal. Since then, the wife of Harinarayan is in actual and physical possession of the suit premises and defendant is not in occupation since then. The defendant thus claimed that the suit deserves to be dismissed.