Mohammed Saleem vs Rehmat Bai and Others

Dr. Vineet Kothari, J—The present appeal has been filed by the appellant/landlord against the order dated 18.11.1998 passed by learned Additional District Judge, Bali, District: Pali, allowing respondents/defendants/tenants'' appeal and setting aside the decree of eviction, remanded the matter back to the learned trial court for fresh trial allowing the amendment in the written statement of the defendants with the following observations: -

Mr. J. Gehlot, learned counsel appearing on behalf of appellant/landlord relying upon the judgment of Hon''ble Apex Court in the case of S. Malla Reddy Vs. Future Builders Co-operative Housing Society and Others, (2013) 5 AD 270 : AIR 2013 SC 3693 : (2013) 3 CTC 343 : (2013) 171 PLR 650 : (2013) 2 RCR(Civil) 957 : (2013) 6 SCALE 170 : (2013) 9 SCC 349 : (2013) AIRSCW 2405 and judgment of this Court in the case of Narayan Das Guru Mahant Vashu Dev Ki Khaki Vs. Kumawat Samaj and Others submitted that at the belated stage of appeal filed by the defendants/respondents, no such amendment in written statement could be allowed while allowing application under Order 6 Rule 17 CPC, and secondly the question of title is not relevant in the eviction matters, therefore, no amendment in written statement was justified. He, therefore, the remand order made by the learned lower appellate court allowing amendment in the written statement could not be allowed and the matter could not be remanded to the learned trial court for holding a fresh trial. The impugned order thus deserves to be quashed and set aside.

On the other hand, Mr. Kulwant Singh, learned counsel appearing for the respondents/defendants submitted that the original defendant late Sh. Abdul Razak, is the brother-in-law of the landlord, Mohammed Saleem and actually the suit property of which eviction was sought, was purchased by the original defendant, Abdul Razak, under a registered sale-deed executed in the year 1958, but since this document was not in the possession of the defendants, therefore, the same could not be produced during the trial, however, the same was procured by the defendants from the office of Sub-Registrar after the eviction decree was passed against them. Therefore, the appellants court below has rightly allowed the appeal of the defendants and remanded the case back to the learned trial court for holding fresh trial and also allowing amendment in the written statement under Order 6 Rule 17 CPC. He further argued that the this question goes to the root of the maintainability of the suit itself and, therefore, amendment allowed by the learned lower appellate court below calls for no interference by this Court in the present misc. appeal at the instance of the appellant/plaintiff.

Having heard the learned counsel for the parties, this Court is satisfied that no interference is called for in the impugned remand order dated 18.11.1998. If the defendants can set up their own title over the suit property with the help of some cogent evidence like the registered sale-deed in their favour, copy of which the defendants could procure only after the decision of the suit, the learned appellate court below was perfectly justified in allowing the defendants'' appeal and remanding the matter to the learned trial court while allowing the defendants to prove the said fact with the help of evidence before the trial court and decide the eviction suit afresh.

The judgments relied upon by the learned counsel for the appellant/plaintiff are not applicable to the facts and circumstances to the present case, as it is not the denial of landlord-tenant relationship but the denial is made on the basis of a registered sale-deed, which they could get only after the eviction decree granted in favour of plaintiff/appellant after a prolonged period but on the basis of such registered sale-deed, the maintainability of the eviction suit could itself be questioned by the defendants. While admitting the present appeal, a coordinate bench of this Court vide order dated 20.01.1999 stayed the proceedings of the trial and the present suit which was filed in the year 1977 being Civil Suit No. 10/1977 and renumbered as Civil Suit No. 56/1980-LR''s of late Kasam Bhai v. LR''s of late Sh. Abdul Razak, and thereafter 10 years have passed by.

In these circumstances, the remand order is upheld and the present appeal of the appellant/plaintiff/landlord is liable to be dismissed and, accordingly, the present misc. appeal is hereby dismissed. Looking to the fact the suit initially was filed in the year 1977, therefore, the learned trial court is requested to expedite the trial of the suit pursuant to the remand order made by the learned appellate court and conclude the same expeditiously, preferably within a period of one year from today. No costs. A copy of this order be sent to the concerned parties and the courts below forthwith.