SHIVAL P TALREJA Vs. MD YAKUB

JUDGEMENT

(1.) THE appellant's suit was heard ex-parte, but even then the trial 3udge dismissed the same holding the appellant-plaintiff to be entitled to no relief. We must over-turn the impugned judgment and the decree of dismissal, as we have no manner of doubt that the trial went entirely wrong in understanding the case made out in the pleadings, the evidence on record, as well as the relevant law on the point.

(2.) AS would appear from the material portion of the impugned judgment (at pages 14 and 15 of the Paper Book), the trial Court dismissed the Suit on two grounds. Firstly, it held that the is "no specific avernment that the defendants or the defendants nos. 1, 3 and 4 dispossessed the plaintiff from the disputed property, or for that matter the suit Flat" and also no "specific avernment in the plaint as to the very particular date of any alleged dispossession of the plaintiff from the disputed property", and, therefore, the plaintiff could "not make out a case contemplated under Section 6 of the Specific Relief Act, 1963". We, however, find that in paragraphs 6, 7 and 9 of the plaint, there are clear averments that the defendants nos. 1, 3 and 4 dispossesed that plaintiff from the suit Fiat sometime during his absence in between 12/3/79 and 24/3/79 and also again on 31/3/79. Such clear averments are also there in the deposition of the plaintiff figuring as P. W. l (at pages 38 and 39 of the Paper Book)and the Suit, as already stated, having been heard exparte, there was and could be no cross-examination on the point. We also do not think that the trial Court was right in thinking that under the law, "the very particular date of alleged dispossession" must be averred in the plaint to make out a case under Section 6 of the Specific relief Act, 1963" and all that sub-Section (2) of that Section 6 directs is that a Suit thereunder shall fail if it is found to have been instituted "after the expiry of six months from the date of dispossession".

(3.) BUT the suit giving rise to this appeal does not appear to have been framed as a suit under Section 6, Specific Relief Act at any stage and if it were such a one, this appeal itself would have been incompetent in view of sub-Section (3) of Section 6. The suit was one under the general law for declaration, possession and other consequential reliefs and the trial Courts also appears to be quite alive to this fact as it held that "under the general law also, the plaintiff has no escape". But why?