NEMICHAND BARDIYA Vs. SHRIRAM MANDIR TURST

JUDGEMENT

(1.) This Misc. Appeal has been filed by the defendant under Order 43 Rule 1(U) of the CPC being aggrieved of the judgment dtd. 28/6/2013 passed by the learned 2nd Additional District Judge, Balaghat in Civil Appeal No.4-A/2013, arising out of judgment and decree dtd. 23/2/2010, passed by the learned 4 Civil Judge, Class-II, Balaghat in Civil Suit No.22-A/2009.

(2.) It is submitted that once the Learned First Appellate Court had come to a conclusion that there was mis joinder of parties and it is in fact the Deity which should have been impleaded as a plaintiff and should have sued the defendant/appellant then there was no cause for the First Appellate Court to have remanded the matter to the trial Court to fill in the lacuna and provide opportunity to the plaintiff to sue the defendant in the name of the Deity. It is submitted that once this finding has been recorded that suit should have been filed by the Deity and not by the trust then Appellate Court should have allowed the appeal after setting aside the judgment and decree passed by the learned Trial Court.

(3.) Though, Shri Umesh Trivedi, learned counsel for respondent No.l pleads no instructions in the matter and submits that he has issued NOC but fact of the matter is that when impugned order is tested on the touchstone of the pleadings in the matter then it is evident that a suit was filed by Shri Ram Mandir Trust, through its trustee alleging that Shri Ram Mandir Trust is a registered public trust and the property of the trust is situated in Balaghat City. In the suit itself, it is mentioned that defendant had taken a room in the shape of shop on monthly rent of Rs.500..00 For default of payment of rent, tenancy was terminated and the suit was filed for vacant possession of the suit premises and mesne profits.