In so far as the framing of issue by the learned trial Judge or by
the learned District Judge, I am inclined to observe that mere filing of
an application under Section 151 of the Code of Civil Procedure or
Order 39 of CPC was not sufficient. If at all it was the case of the
appellant that the appellant was dispossessed between the night of
16.10.1994 and 17.10.1994 and had lost possession in respect of the
suit premises, pending the suit it was necessary for the appellant to file
counter claim for getting back the possession of the suit premises. The
appellant has not done so. In my view, on mere filing of application
under Section 151 of the Code of Civil Procedure it was not proper on
the part of the learned trial Judge to frame issue as regards restoration
of the suit premises to the appellant. To that extent the learned trial
Judge erred. This is so because the issue can be framed on the basis of
what is contained in the plaint and what is contained in the written
statement. However in the absence of specific prayer in the suit by
way of counter claim, a mere averment in the written statement that
the appellant was dispossessed from the suit premises was not
sufficient to frame the issue as regards restoration of the suit premises
to the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 1398 OF 2004
Shri Pradeep Chimanajirao Rane
v/s.
Shri Chandrakant Raghunath More
CORAM: R.Y.GANOO, J.
DATED : 26th SEPTEMBER , 2013.
Citation;2014(3) MHLJ 931 Bom
Read original judgment here; click here
1. The appellant has filed the second appeal being aggrieved by the
judgment and decree passed by the learned 6th Additional District
Judge, Thane in Civil Appeal No.193 of 1999 on 10.2.2004. This
second appeal was admitted on 16.08.2012 and following is the
substantial question of law framed at the time of admission of the
second appeal.
" Whether the Lower Appellate Court erred in rejecting appellant's
prayer for directing the respondent for restoration of the possession of
the suit flat"
2. Few facts necessary for the disposal of this second appeal are as
under:-
. The respondent herein filed Regular Civil Suit No.395 of 1994
in the Court of Civil Judge, Senior Division, Thane in regard to the
premises more particularly set out in the plaint being Block No.2
admeasuring 610 sq. feet. According to the respondent, the
respondent had agreed to sell the suit premises to the appellant on
13.7.1993 for a total consideration of Rs.1,50,000/-. It was also the
case of the respondent that the possession of the suit premises was
handed over to the appellant and thereafter in the month of August
1994 the appellant surrendered the possession to the respondent. It
is also the case of the appellant that the Deed of Cancellation of
agreement dated 13.7.1993 was executed on 18.5.1994 and the sum of
Rs.10,000/- was returned to the appellant. According to the
respondent, in the month of September 1994 the appellant attempted to
dispossess the respondent from the suit premises and that is how the
respondent had to file the suit so as to seek an order of injunction
restraining the appellant from interfering with the possession of the
respondent in regard to the suit premises. The learned Civil Judge
Senior Division, Thane by judgment and decree dated 17.9.1999
decreed the suit. The appellant challenged the said judgment and
decree by filing Civil Appeal No.193 of 1999 in the District Court at
Thane, being aggrieved by the judgment and decree passed by the
learned Civil Judge Senior Division at Thane on 17.9.1999. The said
appeal was allowed by the learned District Judge by judgment and
order dated 10.2.2004 and the suit filed by the respondent was
dismissed, that is to say the injunction issued against the appellant was
dissolved.
3. The appellant, though succeeded in getting an order in his favour
as regards the order of injunction still filed this appeal being aggrieved
by the judgment and decree dated 17.9.1999 passed by the learned
Civil Judge, Senior Division, Thane as also the judgment and decree
dated 10.2.2004 passed in Civil Appeal No.193 of 1999 by the learned
District Judge at Thane on the ground that the prayer made by the
appellant for restoration of possession in respect of the suit premises
has been rejected by both the courts.
4. I have extensively heard learned Advocates on both sides. The
appellant, after the service of the suit summons on the appellant
appeared before the court and filed written statement. In the written
statement the appellant took up a positive stand that the appellant was
in possession of the suit premises on 15.10.1994 and that between the
night of 16.10.1994 and 17.10.1994 at about 1.00 a.m. to 2.00 a.m.
respondent dispossessed the appellant and took the possession in
respect of the suit premises. On the strength of this stand, the
appellant filed an application in the trial court under Section 151 of the
Code of Civil Procedure r/w. Section 39 of the Specific Relief Act. In
the said application the appellant prayed that the order of status quo
granted on 15.10.1994 in favour of the respondent be set aside. By
prayer clause (b) it was prayed that the possession of the suit premises
be restored to the appellant. It is required to be mentioned that the
respondent instituted the suit on 15.10.1994 and applied for interim
relief and order of status quo was granted so as to direct the parties to
maintain status quo. The appellant claims that between the night of
16.10.1994 and 17.10.1994 the appellant was dispossessed. Possibly
on account of this contention an application was filed as mentioned
aforesaid. At the same time, the appellant did not file any counter
claim for getting back the possession by making a specific prayer that
the possession be restored.
5. It is seen that the learned trial Judge framed an issue on the
question of restoration of possession to the present appellant by way of
an additional issue. The text of the said additional issue is as
follows:-
"Is defendant and it led to mandatory injunction in respect of
restoration of suit flat"
The learned trial Judge answered the issue in negative. The learned
trial Judge has given reasons for arriving at this decision.
6. As the learned trial Judge declined to grant restoration of
possession of the suit premises to the appellant, the appellant made a
grievance about it before the learned District Judge and persuaded the
learned District Judge to frame following point for determination.
" Whether the defendant is entitled for mandatory injunction for
restoration of possession of the suit flat".
The learned District Judge answered this point in the negative. Hence
this second appeal is filed.
7. It was argued by learned Advocate Mrs. Deshmukh on behalf of
the appellant that looking to the evidence on record and on the basis of
contents of the application under Section 151 of C.P.C. the learned
trial Judge ought to have granted possession in respect of the suit
premises to the appellant at the end of the trial. According to her the
reasons given by the learned trial Judge for answering the issue as
regards restoration of the suit premises in the negative are not correct.
She also submitted that the learned District Judge should have
answered the issued as regards restoration of the possession of the suit
premises in favour of the appellant.
8. According to her the stand taken by the appellant that he was
dispossessed between the night of 16.10.1994 and 17.10.1994 was
stated in the evidence and therefore it was necessary for the learned
trial Judge as well as the learned District Judge to grant order of
restoration. It was also argued on her behalf that though the suit was
filed on 15.10.1994 the order granting status quo appears to have been
passed on 17.10.1994 and therefore as per the roznama according to
her the respondent acted in high handed manner and dispossessed the
respondent and thereafter moved the court for an order of injunction
which came to be granted in his favour.
9. Learned Advocate Mrs. Deshmukh therefore submitted that both
the courts erred in appreciating the point as regards restoration of
possession and that on proper appreciation of record both the courts
should have granted possession to the appellant.
10. Learned Advocate Mr. Tangsali appeared on behalf of the
respondent and opposed the submissions advanced on behalf of the
appellant and submitted that since the order of status quo was granted
on 15.10.1994 the court had accepted the contention of the respondent
as regards possession of the respondent in regard to the suit premises
and that is how the courts have appreciated the evidence and have
rejected the stand of the appellant as regards restoration of possession.
10. Learned Advocate Mr.Tangsali supported the impugned
judgments and decrees and submitted that no substantial question of
law is involved in the present second appeal and the second appeal be
dismissed.
11. In order to appreciate the case of the appellant as regards his
possession in respect of the suit premises and dispossession of the
appellant I had gone through the notes of evidence. It is noticed that
the respondent examined himself as P.W.1 and one more person by
name Warang, his immediate neighbour was examined as P.W.2. As
against this, the appellant examined himself as D.W.1 and one Mr.
Jadhav as D.W.2 and Mr. Gawade as D.W.3. In so far as the question
of dispossession is concerned, the witnesses examined on behalf of the
appellant, namely Mr.Jadhav and Mr. Gawade as P.W.2 and P.W.3
respectively are of no assistance to the appellant. So far as the
evidence of the appellant is concerned, in the examination in chief
itself the appellant has stated that on 17.10.1994 at about 4.00 - 4.30
when he visited the suit premises, he found that the entrance gate of
the said suit premises was open and his belongings were not in the suit
premises. The appellant further states that he made enquiries with
Mrs. Warang, and Mrs. Warang informed her that on 16.10.1994
between 1.00 to 2.00 in the night the respondent removed the articles
and belongings from the suit premises and kept it near the water tank.
The appellant further states that Mrs. Warang had stated to him that
she had seen this event from the pinhole to her entrance door. A
reading of this evidence as also the other evidence of the present
appellant it is seen that the appellant does not categorically say that the
respondent took possession in respect of the suit premises and put up
his own lock so as to dispossess the appellant from the said premises .
In view of the above, I hold that the contention of the appellant that the
appellant was dispossessed from the suit premises can't be accepted.
At the most it can be said that his belongings from the suit premises
were removed and kept out of the suit premises. It is very pertinent to
note that the appellant admits in examination in chief that when he
visited the suit premises he found the entrance door of the suit
premises open. If the case of the appellant that he was dispossessed
from the suit premises , one would find a lock to the suit premises not
owned by the appellant.
12. For the aforesaid reasons I hold that the appellant has failed to
make out a case that the appellant was dispossessed from the suit
premises on or about 16.10.1994.
13. In so far as the framing of issue by the learned trial Judge or by
the learned District Judge, I am inclined to observe that mere filing of
an application under Section 151 of the Code of Civil Procedure or
Order 39 of CPC was not sufficient. If at all it was the case of the
appellant that the appellant was dispossessed between the night of
16.10.1994 and 17.10.1994 and had lost possession in respect of the
suit premises, pending the suit it was necessary for the appellant to file
counter claim for getting back the possession of the suit premises. The
appellant has not done so. In my view, on mere filing of application
under Section 151 of the Code of Civil Procedure it was not proper on
the part of the learned trial Judge to frame issue as regards restoration
of the suit premises to the appellant. To that extent the learned trial
Judge erred. This is so because the issue can be framed on the basis of
what is contained in the plaint and what is contained in the written
statement. However in the absence of specific prayer in the suit by
way of counter claim, a mere averment in the written statement that
the appellant was dispossessed from the suit premises was not
sufficient to frame the issue as regards restoration of the suit premises
to the appellant. It appears that the learned District Judge framed the
point for determination as mentioned above as the learned trial judge
had framed issue on the question of restoration of possession and
answered it against the appellant. In view of this, the framing of issue
was not proper. Even otherwise in the earlier part of the judgment I
have observed that the case of the appellant that he was dispossessed
from the suit premises is not made out. Once it is observed that the
case of the appellant that he was dispossessed from the suit premises is
not made out on the basis of the evidence on record, surely the learned
trial Judge as well as the learned District Judge were right in not
granting the relief of restoration of possession of suit premises to the
appellant.
14. For the reasons mentioned aforesaid, the substantial question of
law framed as mentioned aforesaid is answered in the negative.
15. The second appeal is dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
[R.Y.GANOO, J.]
the learned District Judge, I am inclined to observe that mere filing of
an application under Section 151 of the Code of Civil Procedure or
Order 39 of CPC was not sufficient. If at all it was the case of the
appellant that the appellant was dispossessed between the night of
16.10.1994 and 17.10.1994 and had lost possession in respect of the
suit premises, pending the suit it was necessary for the appellant to file
counter claim for getting back the possession of the suit premises. The
appellant has not done so. In my view, on mere filing of application
under Section 151 of the Code of Civil Procedure it was not proper on
the part of the learned trial Judge to frame issue as regards restoration
of the suit premises to the appellant. To that extent the learned trial
Judge erred. This is so because the issue can be framed on the basis of
what is contained in the plaint and what is contained in the written
statement. However in the absence of specific prayer in the suit by
way of counter claim, a mere averment in the written statement that
the appellant was dispossessed from the suit premises was not
sufficient to frame the issue as regards restoration of the suit premises
to the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 1398 OF 2004
Shri Pradeep Chimanajirao Rane
v/s.
Shri Chandrakant Raghunath More
CORAM: R.Y.GANOO, J.
DATED : 26th SEPTEMBER , 2013.
Citation;2014(3) MHLJ 931 Bom
Read original judgment here; click here
1. The appellant has filed the second appeal being aggrieved by the
judgment and decree passed by the learned 6th Additional District
Judge, Thane in Civil Appeal No.193 of 1999 on 10.2.2004. This
second appeal was admitted on 16.08.2012 and following is the
substantial question of law framed at the time of admission of the
second appeal.
" Whether the Lower Appellate Court erred in rejecting appellant's
prayer for directing the respondent for restoration of the possession of
the suit flat"
2. Few facts necessary for the disposal of this second appeal are as
under:-
. The respondent herein filed Regular Civil Suit No.395 of 1994
in the Court of Civil Judge, Senior Division, Thane in regard to the
premises more particularly set out in the plaint being Block No.2
admeasuring 610 sq. feet. According to the respondent, the
respondent had agreed to sell the suit premises to the appellant on
13.7.1993 for a total consideration of Rs.1,50,000/-. It was also the
case of the respondent that the possession of the suit premises was
handed over to the appellant and thereafter in the month of August
1994 the appellant surrendered the possession to the respondent. It
is also the case of the appellant that the Deed of Cancellation of
agreement dated 13.7.1993 was executed on 18.5.1994 and the sum of
Rs.10,000/- was returned to the appellant. According to the
respondent, in the month of September 1994 the appellant attempted to
dispossess the respondent from the suit premises and that is how the
respondent had to file the suit so as to seek an order of injunction
restraining the appellant from interfering with the possession of the
respondent in regard to the suit premises. The learned Civil Judge
Senior Division, Thane by judgment and decree dated 17.9.1999
decreed the suit. The appellant challenged the said judgment and
decree by filing Civil Appeal No.193 of 1999 in the District Court at
Thane, being aggrieved by the judgment and decree passed by the
learned Civil Judge Senior Division at Thane on 17.9.1999. The said
appeal was allowed by the learned District Judge by judgment and
order dated 10.2.2004 and the suit filed by the respondent was
dismissed, that is to say the injunction issued against the appellant was
dissolved.
3. The appellant, though succeeded in getting an order in his favour
as regards the order of injunction still filed this appeal being aggrieved
by the judgment and decree dated 17.9.1999 passed by the learned
Civil Judge, Senior Division, Thane as also the judgment and decree
dated 10.2.2004 passed in Civil Appeal No.193 of 1999 by the learned
District Judge at Thane on the ground that the prayer made by the
appellant for restoration of possession in respect of the suit premises
has been rejected by both the courts.
4. I have extensively heard learned Advocates on both sides. The
appellant, after the service of the suit summons on the appellant
appeared before the court and filed written statement. In the written
statement the appellant took up a positive stand that the appellant was
in possession of the suit premises on 15.10.1994 and that between the
night of 16.10.1994 and 17.10.1994 at about 1.00 a.m. to 2.00 a.m.
respondent dispossessed the appellant and took the possession in
respect of the suit premises. On the strength of this stand, the
appellant filed an application in the trial court under Section 151 of the
Code of Civil Procedure r/w. Section 39 of the Specific Relief Act. In
the said application the appellant prayed that the order of status quo
granted on 15.10.1994 in favour of the respondent be set aside. By
prayer clause (b) it was prayed that the possession of the suit premises
be restored to the appellant. It is required to be mentioned that the
respondent instituted the suit on 15.10.1994 and applied for interim
relief and order of status quo was granted so as to direct the parties to
maintain status quo. The appellant claims that between the night of
16.10.1994 and 17.10.1994 the appellant was dispossessed. Possibly
on account of this contention an application was filed as mentioned
aforesaid. At the same time, the appellant did not file any counter
claim for getting back the possession by making a specific prayer that
the possession be restored.
5. It is seen that the learned trial Judge framed an issue on the
question of restoration of possession to the present appellant by way of
an additional issue. The text of the said additional issue is as
follows:-
"Is defendant and it led to mandatory injunction in respect of
restoration of suit flat"
The learned trial Judge answered the issue in negative. The learned
trial Judge has given reasons for arriving at this decision.
6. As the learned trial Judge declined to grant restoration of
possession of the suit premises to the appellant, the appellant made a
grievance about it before the learned District Judge and persuaded the
learned District Judge to frame following point for determination.
" Whether the defendant is entitled for mandatory injunction for
restoration of possession of the suit flat".
The learned District Judge answered this point in the negative. Hence
this second appeal is filed.
7. It was argued by learned Advocate Mrs. Deshmukh on behalf of
the appellant that looking to the evidence on record and on the basis of
contents of the application under Section 151 of C.P.C. the learned
trial Judge ought to have granted possession in respect of the suit
premises to the appellant at the end of the trial. According to her the
reasons given by the learned trial Judge for answering the issue as
regards restoration of the suit premises in the negative are not correct.
She also submitted that the learned District Judge should have
answered the issued as regards restoration of the possession of the suit
premises in favour of the appellant.
8. According to her the stand taken by the appellant that he was
dispossessed between the night of 16.10.1994 and 17.10.1994 was
stated in the evidence and therefore it was necessary for the learned
trial Judge as well as the learned District Judge to grant order of
restoration. It was also argued on her behalf that though the suit was
filed on 15.10.1994 the order granting status quo appears to have been
passed on 17.10.1994 and therefore as per the roznama according to
her the respondent acted in high handed manner and dispossessed the
respondent and thereafter moved the court for an order of injunction
which came to be granted in his favour.
9. Learned Advocate Mrs. Deshmukh therefore submitted that both
the courts erred in appreciating the point as regards restoration of
possession and that on proper appreciation of record both the courts
should have granted possession to the appellant.
10. Learned Advocate Mr. Tangsali appeared on behalf of the
respondent and opposed the submissions advanced on behalf of the
appellant and submitted that since the order of status quo was granted
on 15.10.1994 the court had accepted the contention of the respondent
as regards possession of the respondent in regard to the suit premises
and that is how the courts have appreciated the evidence and have
rejected the stand of the appellant as regards restoration of possession.
10. Learned Advocate Mr.Tangsali supported the impugned
judgments and decrees and submitted that no substantial question of
law is involved in the present second appeal and the second appeal be
dismissed.
11. In order to appreciate the case of the appellant as regards his
possession in respect of the suit premises and dispossession of the
appellant I had gone through the notes of evidence. It is noticed that
the respondent examined himself as P.W.1 and one more person by
name Warang, his immediate neighbour was examined as P.W.2. As
against this, the appellant examined himself as D.W.1 and one Mr.
Jadhav as D.W.2 and Mr. Gawade as D.W.3. In so far as the question
of dispossession is concerned, the witnesses examined on behalf of the
appellant, namely Mr.Jadhav and Mr. Gawade as P.W.2 and P.W.3
respectively are of no assistance to the appellant. So far as the
evidence of the appellant is concerned, in the examination in chief
itself the appellant has stated that on 17.10.1994 at about 4.00 - 4.30
when he visited the suit premises, he found that the entrance gate of
the said suit premises was open and his belongings were not in the suit
premises. The appellant further states that he made enquiries with
Mrs. Warang, and Mrs. Warang informed her that on 16.10.1994
between 1.00 to 2.00 in the night the respondent removed the articles
and belongings from the suit premises and kept it near the water tank.
The appellant further states that Mrs. Warang had stated to him that
she had seen this event from the pinhole to her entrance door. A
reading of this evidence as also the other evidence of the present
appellant it is seen that the appellant does not categorically say that the
respondent took possession in respect of the suit premises and put up
his own lock so as to dispossess the appellant from the said premises .
In view of the above, I hold that the contention of the appellant that the
appellant was dispossessed from the suit premises can't be accepted.
At the most it can be said that his belongings from the suit premises
were removed and kept out of the suit premises. It is very pertinent to
note that the appellant admits in examination in chief that when he
visited the suit premises he found the entrance door of the suit
premises open. If the case of the appellant that he was dispossessed
from the suit premises , one would find a lock to the suit premises not
owned by the appellant.
12. For the aforesaid reasons I hold that the appellant has failed to
make out a case that the appellant was dispossessed from the suit
premises on or about 16.10.1994.
13. In so far as the framing of issue by the learned trial Judge or by
the learned District Judge, I am inclined to observe that mere filing of
an application under Section 151 of the Code of Civil Procedure or
Order 39 of CPC was not sufficient. If at all it was the case of the
appellant that the appellant was dispossessed between the night of
16.10.1994 and 17.10.1994 and had lost possession in respect of the
suit premises, pending the suit it was necessary for the appellant to file
counter claim for getting back the possession of the suit premises. The
appellant has not done so. In my view, on mere filing of application
under Section 151 of the Code of Civil Procedure it was not proper on
the part of the learned trial Judge to frame issue as regards restoration
of the suit premises to the appellant. To that extent the learned trial
Judge erred. This is so because the issue can be framed on the basis of
what is contained in the plaint and what is contained in the written
statement. However in the absence of specific prayer in the suit by
way of counter claim, a mere averment in the written statement that
the appellant was dispossessed from the suit premises was not
sufficient to frame the issue as regards restoration of the suit premises
to the appellant. It appears that the learned District Judge framed the
point for determination as mentioned above as the learned trial judge
had framed issue on the question of restoration of possession and
answered it against the appellant. In view of this, the framing of issue
was not proper. Even otherwise in the earlier part of the judgment I
have observed that the case of the appellant that he was dispossessed
from the suit premises is not made out. Once it is observed that the
case of the appellant that he was dispossessed from the suit premises is
not made out on the basis of the evidence on record, surely the learned
trial Judge as well as the learned District Judge were right in not
granting the relief of restoration of possession of suit premises to the
appellant.
14. For the reasons mentioned aforesaid, the substantial question of
law framed as mentioned aforesaid is answered in the negative.
15. The second appeal is dismissed. In the facts and
circumstances of the case, there shall be no order as to costs.
[R.Y.GANOO, J.]
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