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Judgment
Khan, J.—This appeal is directed against the judgment and decree dated 29.9.1988 remanding the suit of respondent to the trial court for
fresh adjudication after framing of two issues.
The case of the appellant is that the learned Single Judge was not competent to frame issues in the absence of any specific averments made by
the plaintiff in his plaint giving rise to the issues and to remand the case for fresh trial.
Appellant is a tenant of the respondent and defendant in the suit instituted by the latter for the recovery, of Rs. 7,817.25 as damages for use and
occupation of the suit premises for March and April, 1980. Respondent's case in the suit was that he had leased out a shop situate at Raghunath
Bazar to appellant for four years on 20.2.1976 and that he had served a notice on him determining the lease but inspite of that he had not vacated
the premises for which he was liable to pay damages for use and occupation of the premises. While resisting the suit, appellant claimed protection
under the provisions of the JandK Houses and Shops Rent Control Act and on that basis asserted that he contained to be the tenant in the
premises. Two issues were framed by the trial court, viz:
1) Whether the defendant is a tenant after the expiry of stipulated period of four years?
O.P.D.
2) Whether the plaintiff is entitled to a sum of Rs. 7,817.25 on account of damages for use and occupation?
O.P.P.
The suit was decreed by the learned City Judge against which appeal was taken to this Court. On consideration, the learned Single Judge allowed
the appeal and set aside the judgment and decree of the trial court and remanded the suit to the trial court after framining following two issues :
1) Whether the defendant is. not entitled to protection under the JandK Houses and Shops Rent Control Act?
O.P.P.
In case issue No. 1 is proved, whether plaintiff is entitled to enhanced rent at the rate of Rs. 3500 per month?
O.P.P.
The trial court was further directed to allow the parties reasonable opportunity to lead evidence on these issues and dispose of the suit within four
months after fixing atleast two dates in a month. Aggrieved by this direction, appellant has filed this appeal primarily on the grounds: (i) that no such
issues could be framed in the pleadings of the parties; (ii) that non of the parties had ever asked for framing of the issues; and (iii) that the
respondent (plaintiff) had never averred about the exemption of JandK Houses and Shops Rent Control Act, in his plaint.
Mr. Bakhshi, learned counsel representing the appellant relying upon AIR 1982 JandK 11, urged that no issue could be raised in respect of the
applicability or otherwise of the JandK Houses and Shops Rent Control Act as the plaintiff had not specifically pleaded it in his plaint. He was at
pains to highlight this aspect and contended that there was no pleading or material before the learned Single Judge to frame the issue with regard to
the applicability of the Act.
We have appreciated the submission but it is difficult to accept it. This is so for the reason that the court is within its competence to raise an issue
in a suit on the basis of pleadings and material on record. The pleadings, as is well known, include both plaint and the written statement.
It is true that the issues arise generally in respect of those facts which are alleged by one party and are either not admitted or denied by the other
party. But, an issue can also arise by a unilateral assertion of fact by a party which may not be specifically denied by the other party, and, may have
a crucial bearing on the adjudication of the suit. Therefore, a court would be well within its province to raise an issue where one of the two parties
asserts a fact which has a vital bearing on the outcome of the suit.
In the present case it goes undisputed that the appellant (defendant) has claimed protection of the J and K Houses and Shops Rent Control Act
in his written statement. There is also hardly any doubt that this claim has a significant bearing on the plaintiff's suit. Therefore, we find nothing
wrong in the exercise under taken by the learned Single Judge to the applicability of the Act even when the plaintiff had not specifically pleaded it in
his plaint.
Mr. Bakhshi's other submission that while claiming exemption contained in subsec. (3) of Sec. 1 of the Act, it is for the plaintiff to specifically
plead and prove, proceeds on a misappreciation of the position in the present case. Here it is not the question of plaintiff claiming that the
defendantappellant is exempt from the provisions of the Act, but, it is the other way round. In other words, it is the defendant claiming protection of
the Act and in case he succeeds, it is he who would be benefited on the upholding of such claim. Therefore, the principle enunciated by the
Division Bench Judgment of this Court in Mohd Ashraf Ahanger V. Gh. Mohd Shah (AIR 1982 JandK 11) is distinguishable to that extent.
Moreover, the controversy in that case related to a suit for eviction when the present controversy arises from a suit for damages.
The distinction is marked on the face of it.
The Judgment referred by Mr. Thakur (AIR 1988 SC 391) is not relevant on the point but all the same we find no infirmity in the Judgment and
decree impigned and no merit in this appeal which is dismissed.