NIKULBHAI KAUSHIKBHAI PATEL Vs. HETALKUMAR HASMUKLAL VORA

JUDGEMENT

(1.) THIS appeal under section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") is directed against the judgment and decree dated 5th November, 2014 passed by the learned Chamber Judge, Court No.10, City Civil Court, Ahmedabad below Exhibit -26 in Civil Suit (CCC) No.1834 of 2013, whereby the learned Judge has partly allowed the application made under rule 6 of Order XII of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and partly decreed the suit filed by the plaintiff.

(2.) THE facts of the case stated briefly are that the respondent herein instituted a suit being Civil Suit (CCC) No.1834 of 2013 in the City Civil Court, at Ahmedabad seeking a direction to the respondent to hand over the possession of the suit premises to the plaintiff. The respondent plaintiff also claimed Rs.1,09,344/ - towards arrears of rent and mesne profit of Rs.12,000/ - per month with effect from 01.07.2012. In the said proceedings, the appellant defendant filed a written statement on 25.09.2013 making certain admissions therein. The respondent plaintiff moved an application Exhibit -26 before the trial court under rule 6 of Order XII of the Code stating that in view of the admissions made by the defendant in the written statement filed by him, a decree be passed that the defendant should handover the peaceful and vacant possession of the immovable property bearing Tenement No.79 of Arihant Co -operative Society Ltd., admeasuring about 42.17 square metres, bearing Municipal Tenement No.0509 -17 - 0391 -0001 -N, T. P. Scheme No.26, Final Plot No.180, Taluka City, Mouje Vasna, District Ahmedabad, Sub -District Ahmedabad -4 (Paldi) (hereinafter referred to as "the suit property"). By the impugned order, the trial court has partly allowed the application and has partly decreed the suit in the following terms:

(3.) MR . Vishal Dave, learned advocate for the appellant assailed the impugned order by submitting that the trial court has not appreciated the written statement filed by the appellant and the reply Exhibit -27 filed by the appellant in response to the application Exhibit -26 made by the respondent in proper perspective. It was submitted that in the reply Exhibit -27, the appellant had clarified his stand; however, the trial court had failed to consider the same. It was submitted that the trial court without giving the appellant an opportunity to lead oral and documentary evidence to establish his case, has passed the decree, by dealing with the matter as if all the issues have been decided in favour of the plaintiff. The attention of the court was invited to the written statement filed by the appellant, to submit that there was specific denial in respect of each fact stated in the plaint. It was submitted that while it is true that the appellant had shown willingness to vacate the suit premises, however, due to subsequent events, the appellant was constrained to act otherwise.