Mohan Lal and Others vs Surjit Singh (dead) through L.Rs.

Alok Singh, J.—Present petition is filed challenging the order dated 12.5.2010 passed by Appellate Authority thereby framing additional issue and remanding the case to the learned Rent Controller to decide the case afresh after recording finding on the additional issue as well.

While remanding the case, learned Appellate Authority in paragraph Nos. 10 to 13 has observed as under:

But the learned Rent Controller in its judgment under appeal in Para 15 has observed that Learned Counsel for the parties argued on the issue regarding Respondent having sublet the demise premises and in Para No. 3(ii) the ground for eviction of the Respondents is that the Respondent No. 1 has sublet the shop in question to Respondents No. 2 and 3 and had handed over the exclusive possession of shop to Respondents No. 2 and 3. In his written reply the Respondent has specifically denied this fact that Respondent has sublet the shop to Respondents No. 2 and 3 and he has not handed over the exclusive possession to Respondents No. 2 and 3. In detail the Respondent No. 1 replied to this ground, evidence has also been led by the Petitioner and the Respondent at length on this ground. It appears that while framing issues, inadvertently it was over looked and this issue remained to be proved. Since this was one of the grounds on which the parties were at issue and evidence has been led on this issue and arguments were addressed, deem it necessary to record findings on this issue although the same has not been framed.

The above observations of learned Rent Controller clearly shows that inadvertently issue on this plea of sub-letting taken by the landlord and denied the above said plea by tenant, was not framed by Rent Controller on 10-1-2005 and the findings has been recorded without there being a specific issue.

In view of above discussion, I find that a specific issue required to be framed and then the findings are to be recorded on that issue. I, therefore frame additional issue as 3(a) in addition to issues framed by learned Rent Controller on 10-1-2005 as follows:

3(a) Whether Respondent No. 1 has sub-let the shop in question to Respondents No. 2 and 3 and has handed over the exclusive possession of the shop to Respondents No. 2 and 3? OPA

As observed by learned Rent Controller and discussed above, the parties have already lead evidence on this issue. So, there is no need to set aside the judgment or learned Rent Controller, however the report on this newly framed issue will serve the purpose. I therefore send the file for the report of Rent Controller on this newly framed issue. The parties have already led the evidence as already observed by learned Rent Controller. So, for recording the specific findings on the newly framed issue, the file is sent back to the Rent Controller, who will hear the parties on the issue and record the findings on newly framed issue and sent the report on or before 1-6-2010. The parties through their counsels appear before the Rent Controller on 20-5-2010.

From the perusal of the pleading and record, it is revealed that one of the grounds taken for eviction of the tenant-Petitioner was that Petitioner-tenant has sublet the property in favour of Respondents No. 2 and 3. Tenant has contested the ground of sub-tenancy and both the parties have led evidence in support and against the question of sub-tenancy. Record further reveals that learned Rent Controller has not framed any specific issue on the question of sub-tenancy, hence learned Appellate Authority has framed issue on sub-tenancy and remanded the matter. Hon''ble Apex Court in the matter of Nedunuri Kameswaramma Vs. Sampati Subba Rao, has observed as under:

Where the parties went to trial fully knowingly the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on this narrow ground, and also there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion and neither party claimed that it had any further evidence to offer.

In view of the dictum of the Apex Court, it can very well be said that non-framing of issue will not vitiate the proceedings, if parties well-aware with the pleadings and case of each other have already led evidence in the matter.

Learned Counsel for the Petitioners has placed reliance on the judgment of the learned Single Judge of this Court in the matter of Mohinder Kaur v. Gurdial Kaur 1997(1) RCR 219 and UCO Bank v. Mittal Bros. 1998(2) CCC 654 and argued that after framing of the additional issue, an opportunity ought to have been granted to lead evidence on the additional issue framed.

In view of the dictum of the Apex Court in the matter of Nedunuri Kameswaramma (supra), if evidence has already been produced by both the parties after understanding well their respective case, then non-framing of issue is not fatal. Although, remand of the matter was not at all required and Appellate Authority could have decided the appeal on the basis of evidence available on the record, however, since order of remand is not under challenge, this Court is restraining itself for making any observation against the remand order. The judgments cited by the learned Counsel for the Petitioners have no application at all in the facts and circumstances of the present case. In both the cases before the learned Single Judges of this Court, as cited by the learned Counsel for the Petitioners, evidence was not produced, hence in both the cases while remanding the matter after framing additional issue, this Court has directed parties to lead evidence on the additional issue. However, in the present case, evidence has already been produced and pleadings were already their, hence I do not think there would be any necessity to permit the parties to lead further evidence on the additional issue framed. Learned Rent Controller is requested to decide the case within 90 days from the date certified copy of this order is produced before the learned Rent Controller.

Dismissed.