AI Structured Summary
Not yet generated for this judgment
Judgment
A.V. Chandrashekara, J.—Appellants herein are the defendant Nos. 1 and 2 of an original suit bearing O.S. 523/1989 which was pending on the file of Court of the Civil Judge (Jr. Dn.) and JMFC, Harihar. Respondents herein are the plaintiffs in the said suit.
Parties will be referred to as per their ranking before the Trial Court.
Plaintiff Sri. Krishna Murthy chose to file a suit for the relief of declaration that he is entitled to occupy the suit schedule shops as tenant and further entitled to renewal of lease every 11 months and for permanent injunction to restrain the defendants from evicting him except in accordance with law. Plaintiff died during the pendency of the suit and hence, his legal representatives were brought on record.
The facts leading to filing of the suit is as under:
Plaintiff had obtained lease of suit schedule shops from defendant No. 2 as per sanction letter of defendant No. 1 dated 24.7.1972 for a period of 6 years from the date of execution of lease deed with a liberty for renewal every 11 months. The allottee had to pay 3 months rent in advance at the rate of Rs. 18/- per month i.e., Rs. 54/- per shop. The allottee was expected to execute an agreement on stamp paper and was to pay collateral security amount of Rs. 100/- and also he was to pay EMD amount of Rs. 75/-. The plaintiff executed the lease deed in favour of defendant No. 1 on 1.1.1973 in terms of the conditions imposed on him and plaintiff was put in possession of the suit schedule shops. 5. On 4.3.1982, defendant No. 2 served a notice on the plaintiff to pay the arrears of rent upto 31.1.1982. On receipt of the same, plaintiff requested the defendant to furnish the particulars and same was not furnished to him. The defendant approached the plaintiff on 28.8.1982 and called upon the plaintiff to vacate and deliver the suit schedule shops lest he would be evicted with help of the police. Hence, suit was filed by the plaintiff in O.S. 133/1982 for relief of permanent injunction only. Since no prior notice had been given at the time of filing of suit, the suit was dismissed as not maintainable in view of the bar under Section 72 of Karnataka Housing Board Act. Regular appeal filed under Section 96 of CPC was dismissed by confirming the order of the Trial Court. RSA 479/89 filed before this Court by the plaintiff was also dismissed by confirming the judgment of the First Appellate Court. Since defendant again demanded the defendant to vacate and hand over the vacant suit schedule shops, the plaintiff chose to file a comprehensive suit for relief of declaration injunction after issuing statutory notice.
Defendant No. 2 has filed detailed written statement denying all the material averments stating that suit is not maintainable either in law or facts and there cannot be any renewal of the lease at the instance of the plaintiff. It is contended that the plaintiff had committed default in paying arrears of rent and therefore they were not entitle to continue to pleadings, they had requested the Court for dismissal of the suit
On the basis of the above pleadings, following issues came to be framed by the Trial Court:
1) Whether the plaintiff proves that he is entitled to continue in possession and occupation of the premises until evicted as state in plaint para No. 9?
2) Does plaintiff prove that he was paid up-to-date rent and he is not in arrears?
3) Whether the defendants prove that the plaintiff was due for more than two years rent and so he will became a trespasser as per KHB Act?
4) Whether the defendants prove that as K.H.B. Act the dispute between board and tenant shall be tried by District Tribunal and so this Court has no jurisdiction to try the suit?
5) Whether the Court fee paid is proper?
6) Whether the present suit is not maintainable in view of the averments made in para No. 11 of written statement?
7) Whether the suit is barred by limitation?
8) Whether the suit is not tenable for non-joinder of parties?
9) Whether the suit is maintainable for want of notice under Sec. 80 C.P.C. and 72 of K.H.B. Act?
10) Whether the plaintiff is entitled to declaratory relief as prayed?
11) Whether the plaintiff is entitled for consequential relief of injunction?
12) What order or decree?
On behalf of the plaintiffs, plaintiff himself is examined as PW-1 and 35 documents have been marked as Exs. P-1 to 35. On behalf of the defendants, one C. Krishnamurthy is examined as DW-1 and has produced and got marked 4 documents as Exs. D-1 to 4. Ultimately, the learned Judge of the Trial Court has chosen to answer issues 1, 2, 4, 6, 8, 10 and 11 in the negative and others remaining issues in the affirmative. Issues 4.7 and 9 had been treated as preliminary issues and had been held against defendants. Appeal filed by the plaintiff under Section 96 of CPC in R.A. 26/2004 has been allowed and suit has been decreed as prayed for holding that plaintiffs are entitled to continue as tenants in the suit schedule premises and they are entitled to get renewal of lease deed for every 11 months and defendants are restrained from interfering with the plaintiffs'' enjoyment of suit schedule property till plaintiffs are evicted in due course of law. It is this divergent findings, which is called in question on various grounds as set out in the appeal memo.
The present appeal has been admitted on 9.1.2008 by framing following substantial question of law for consideration:
Whether the lower appellate court was justified in reversing the decree of the Trial Court and granting a declaration that the plaintiff is entitled to renewal of the lease once in every 11 months after the expiry of the original period of six years during which period he was expected to renew the lease once in 11 months? 10. Heard the learned counsel for the parties and perused the records.
First appeal is a valuable right vested under Section 96 of CPC. The First Appellate Court is expected to formulate proper points as per the mandate of provisions Order 41 Rule 31(a) of CPC. Unless proper points for consideration are formulated, the First Appellate Court will not be in an advantageous position to reassess the entire evidence on record. In the case of B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, , the Hon''ble Apex Court has reiterated the mandate of provisions of Order 41 Rule 31(a) of CPC. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put-forth and pressed by the parties for decision of the appellate Court. It is the duty of the First Appellate Court to deal with all the issues and the evidence led by the parties before recording its findings. The judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
What exactly is the procedure to be adopted by the First Appellate Court while dealing with the first appeal has been well dealt with by the Hon''ble Supreme Court in the case of Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., and this decision is rendered by Bench consisting of three Hon''ble Judges of Hon''ble Supreme Court.
The First Appellate Court has committed a serious error in not framing proper points for consideration. Following are the points formulated by the First Appellate Court and same is found in page 8 paragraph 13 of its judgment:
1) whether the impugned judgment and decree of the learned trial court is arbitrary, capricious, perverse and opposed to well established principles of law?
2) Is there sufficient reasons to interfere in the order of the learned Trial Court?
3) What order or decree?
What is argued by the learned counsel for the respondent plaintiff is that though proper points have not been formulated by the First Appellate Court, it has adverted to all the controversy involved by the parties and has reassessed the entire evidence. This Court is unable to accept the same.
Points formulated by the First Appellate Court are bald and omnibus and do not focus on the actual controversy between the parties. Unless proper points are formulated, there cannot be scope for discussing the oral and documentary evidence in right perspective. The First Appellate Court has not looked into an important aspect as to whether the plaintiff has an unbridled right to get renew of the lease every 11 months. This aspect of the matter has not been dealt in the right perspective by the First Appellate Court. Suffice to state that the approach adopted by the First Appellate Court is not consistent with the mandate provisions of Order 41 Rule 31(a) of CPC and Section 96 of CPC. Hence, the First Appellate Court is not justified in reversing the judgment of the Trial Court and granting declaration to the plaintiff to have renewal of the lease every 11 months after expiry of the original period. Hence, the appeal is liable to be allowed by remanding the matter to the First Appellate Court.
ORDER
Appeal is allowed. The judgment and decree dated 2.9.2005 passed by the First Appellate Court in R.A. 26/2004 is set aside. The matter is remanded to the First Appellate Court to consider the matter afresh by framing proper points for consideration as per the decision rendered in the case of B.V. Nagesh and Another Vs. H.V. Sreenivasa Murthy, .
Parties shall appear before the First Appellate Court on 17.6.2015 without fail and learned Judge of the First Appellate Court to dispose of the matter preferably within 3 months from the date of appearance of the parties i.e., 17.6.2015.
All the contentions are kept open to be urged by the parties.
Since respondent Nos. 4 and 8 namely Jayamma and Nagaratha are not represented by their counsel herein, the First Appellate Court shall issue emergent notices to them for their participation.
Parties to bear their own costs.