REHTI Vs. AB MAJID SOFI

JUDGEMENT

(1.) HABIB Dar, appellant -plaintiff, (who has by now died and is represented by his legal heirs) filed a suit for ejectment and recovery of arrears of rent against the respondent, in respect of a shop situated at Munwarabad, Srinagar. This suit was filed on 26th May 81, on various grounds and in main on the pleaded grounds that the respondent -defedant as a tenant has damaged the tenement and is a source of nuisance for other tenants and the people around. Besides, the plea of personal requirement was also raised. The suit was contested by the other side. Number of issues were raised in the suit. Parties led evidence. The trial concluded in the court of Judge, Small Causes, Srinagar. The suit was decreed in favour of the appellants on the ground of nuisance and annoyance to the adjoining/neighbouring tenants. The finding on all other issues was against the appellant -plaintiff.

(2.) THE respondent -defendant preferred Civil 1st Appeal against the judgement and decree of the trial court, and filed it (1/1998) before the District Judge, Srinagar. The appellant -plaintiff also filed cross objections under Order 41 R. 22 CPC, objecting the findings returned by the trial court on other issues. The 1st Appellant court, while accepting the appeal preferred by respondent, dismissed the cross objections filed by the appellant -plaintiff vide its order dated 20th Nov 89. It is against this order, the present second appeal has been preferred.

(3.) THE learned counsel for the appellants submits that while deciding the appeal, the 1st Appelate court has not decided the cross objections, and thereby, injustice has been meted out to the appellant -landlord. It is further submitted that no reasons have been given and also the other factual and legal points raised in the cross objections have not been addressed by the court below. Mere mention that appeal is accepted and cross objections are rejected in the last lines of the impugned order passed by the 1st Appellate Court, is not the consideration of the cross objections, discussion of evidence led on each issue by the parties, addressing factual issues and legal aspects raised before appellate forum and recording reason while coming to conclusion to uphold appeal by upsetting judgement of lower court while dismising cross objections filed by respondent to appeal and plaintiff before trial court. It is submitted that ignoring/non -adjudication of the cross objections, while deciding the appeal by the 1st Appellate Court, is a legal issue of substantial nature required to be addressed by this court in further appeal (2nd appeal). It is also stated that there is other substantial legal issue involved in as much as the concept of nuisance within the meaning of Tenancy laws as a ground for ejectment is the matter, which is required to be considered by this court.