SURESH KUMAR Vs. IQBAL AHMED

JUDGEMENT

(1.) The appellant plaintiff, being aggrieved by the remand order dated 19-1-1982, passed by Shri K K. Shrivastava, Second Additional Judge to the Court of District Judge, Cindwara, in Civil Appeal No, 55-A of 1981, has approached this Court by filing this appeal under Order 43, Rule I (u) of the Code of Civil Procedure.

(2.) The plaintiff is admittedly the owner of the suit house is in occupation of the respondent defendant as a tenant on monthly tenancy of Rs. 80.00 only. There have been two earlier litigations between the parties, wherein decree for arrears of rent has been passed against the defendant and inspite of it, the entire arrears of rent was not paid. The plaintiff filed the present suit claiming that he required the premises bona fide for his personal business needs. He also submitted that he has terminated the tenancy with effect from the month ending on 31-7-1979 by sending a registered notice dated 7-6-1979, which had been duly received by the defendant on 13 6.1979 The defendant admitted the relationship of landlord and tenant, but submitted that the plaintiff did not require the suit premises bona fide. He also submitted that the suit house had been taken on rent for joint purpose of residence and running his tailoring business. He also submitted that he was paid a sum of Rs. 1080.00 as advance which was not adjusted so far. He also claimed that the plaintiff was using the electricity of which payment was made by him on the basis of an oral agreement. This amount was not adjusted. The trial Court, with the consent and in the presence of the parties, framed issues on 2-5-1980 and the counsel for the defendant agreed with the same (see the order-sheet of the trial Court dated 2-5-1980). Thereafter, the plaintiff examined himself and also examined one Sunderlal as his witness. The defendant examined himself and his witness Matin. The trial Court, on consideration of entire oral and documentary evidence on record, held that the suit premises was bona fide required by the plaintiff for his own business and he does not have any other suitable accommodation for the said purpose. The trial Court further held that the rent of the suit premises was only Rs. 80.00 per month which was admittedly not paid from 1-4-1977. It also held that the provisions of M.P. Accommodation Control Act, 1961, were not applied in Parasia where the suit premises is situated. It accordingly decreed the suit.

(3.) In the memo of appeal filed by the defendant in the lower appellate Court, the defendant challenged the finding as unreasonable and against the weight of evidence. He did not make any grievance in the said memo of appeal about the manner in which issues were framed by the trial Court or that he was prejudiced in any way by the issues as framed. Inspite of it, the lower appellate Court. by the impugned judgment, held that the defendant had raised specific pleas (hindi main) in his written statement, but the trial Court did not frame any specific issues on those specific pleas. These specific pleas are said to be pleas relating to the purpose for which the suit premises was taken on rent, rate of rent, in the beginning an advance of Rs. 1080.00 alleged to be paid by the defendant, supply of electricity by the defendant, to the plaintiff on the basis of oral agreement, and the availability of the other accommodation to the plaintiff. The validity of notice is also said to be a ground raised in the specific pleas. According to the lower appellate Court, issue should have been framed on each and every such plea and since they are not framed, the entire trial was vitiated. The decree of trial Court was, therefore, sit aside and the suit remanded for framing issues afresh.