NARESH SETHI Vs. RAJKUMARI
HIGH COURT OF UTTARAKHAND (AT: NAINITAL)
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(1.) Plaintiff/respondent instituted a suit for rent and ejectment against the defendant/revisionist, which was registered as S.C.C. Suit No.05 of 2003 "Smt. Rajkumari Vs. Shri Naresh Sethi". In paragraph nos.4 & 5 of the plaint, the plaintiff/respondent alleged that vide notice-dated 23.12.2002, the defendant was called upon to pay the arrears of rent and charges together with interest and cost of the notice. The tenancy of the defendant was also terminated by the said notice. The notice was sent to the defendant/revisionist at the residential address as well as at the business address by registered A.D. post as well as by U.P.C. Both the registered A.D. envelopes and the U.P.C. envelopes, addressed at the business address of the defendant/ revisionist, returned unserved. The U.P.C sent at the residential address of the defendant/revisionist was served on 24.12.2002. However, to avoid any objection regarding non-receipt of the notice, a copy of the notice was affixed in presence of two witnesses in the verandah situated at the entrance of the said property.
Thus, the notice shall be deemed to have been served upon the defendant/revisionist on 25.12.2002. The defendant/revisionist filed his written statement. In paragraph no.4 & 5 of the written statement, the defendant/revisionist denied that by notice-dated 23.12.2002, the tenancy of the defendant/revisionist was terminated. The defendant/revisionist also denied the receipt of the notice. It was also denied that notice was sent at the residential address as well as at the business address of the defendant/revisionist. It was also denied that copy of the notice was affixed in presence of two witnesses in the verandah situated at the entrance of the said property. The defendant/ revisionist also denied that notice shall be deemed to be served upon the defendant/revisionist on 25.12.2002. The trial Court framed 8 issues on the basis of pleadings of the respective parties on 04.10.2004 in presence of both the parties. While framing issues, the parties to the suit did not press for framing of any other issue. The plaintiff/respondent filed examination-in-chief of P.W.-1 on 19.10.2004 and he was cross-examined on 14.09.2005 by the defendant/revisionist. Thereafter, the defendant/ revisionist evidence was concluded on 17.02.2009.
After concluding the evidence of defendant/revisionist, the matter was fixed for arguments, but same was adjourned on various occasions. The arguments of the plaintiff/respondent were advanced and the matter was fixed for the arguments of the defendant/revisionist.
On the date fixed for defendant's arguments, the defendant/revisionist filed an application stating therein that the defendant/revisionist has taken a plea in paragraph no.4 of his written statement that notice dated 23.12.2002 was never received by the defendant/revisionist and no issue has been framed on the said fact. The defendant/revisionist prayed that issue no.9 may be framed as "Whether the notice dated 23.12.2002 was served on defendant, if so, in what manner". The learned Judge Small Cause Court (for short SCC) rejected the application of the defendant/ revisionist by stating therein that evidence in respect of proposed issue is already there on record. The learned Court also observed in its order that the application has been moved by the defendant/revisionist to delay the proceedings of the case.
(2.) Mr. V.K. Kohli, Senior Advocate for the revisionist referred Order 14 Rule 5 of the C.P.C. and submitted that additional issues can be framed at any time before passing a decree. He submitted that since the proposed issue is very much relevant for deciding the case, the learned Judge SCC has erred in rejecting the application of the defendant/revisionist. By relying on the judgment A Shanmugam Vs. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, 2012 AIR(SCW) 3017 he submitted that it is the duty of the Court to frame all relevant issues. He submitted that if issues are properly framed, the controversy in the case could be properly appreciated in that light. The relevant issue can also be carefully examined. Careful framing of issues also happens in proper examination and cross- examination of witnesses and final arguments in the case. He submitted that the application filed by the defendant/revisionist should have been allowed.
(3.) Shri Piyush Garg, learned counsel for the respondent by relying upon the judgment of the High Court of Delhi in the case of "S.L. Gupta Vs. Ramesh Kumar", 1996 RLR 357 submitted that revision filed by the revisionist is liable to be dismissed, as the order passed by the Court below does not qualify the test of phrase "case decided". He submitted that no rights or obligations of the parties have been finally adjudicated upon by the learned Court below and thus, order being purely interlocutory in nature without having import of deciding rights of the parties finally and hence, no revision under Section 25 of the Small Cause Courts Act could be maintained. He further submitted that defendant/revisionist filed his written statement on 05.08.2004, issues were framed on 04.10.2004, examination-in-chief of P.W.-1 was filed on 19.10.2004 and cross examination was done on 14.09.2005. The parties were well aware of the ground and defence and were conscious of each other pleadings and evidence.
Defendant willfully waived his plea taken in defence and now his application cannot be allowed for framing an additional issue at the stage of final arguments.
Learned counsel for the respondent/plaintiff further submitted that that in any case, the proposed issue can be considered by the Judge SCC under the issue no.7, which is framed to the effect "to what relief the plaintiff is entitled to". He also submitted that the defendant/revisionist did not plead in his application that because of non framing of the issue, he could not lead his evidence which further proves that the defendant/revisionist has not been prejudiced because of non framing of the issue. He further submitted that as per Order 20 Rule 4 of the C.P.C., the Judge SCC need not contain more than points for determination and the decision there on. As per Order 5 Rule 5, the summons of the Small Cause Court shall be for the final disposal of the suit which means framing of issue is not required in an SCC suit. He submitted that thus, the Judge SCC need not to frame issues and rather is only supposed to frame the point for determination at the time of writing the judgment. He placed reliance on the portion of paragraph nos.11 & 12 of the judgment reported in AIR 1956 SC Page 593. Same are reproduced as under:
"We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them."
"The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.";
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