Nathu Ram vs Thakur Ramjanki Ji Virajman ...
2017 Latest Caselaw 8020 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on  01.12.2017            
 
						Delivered on 15.12.2017          
 
Court No. - 28
 

 
Case :- WRIT - A No. - 44888 of 2012
 

 
Petitioner :- Nathu Ram
 
Respondent :- Thakur Ramjanki Ji Virajman Mandir,Chitrakoot
 
Counsel for Petitioner :- J.H.Khan,Gulrez Khan
 
Counsel for Respondent :- Anuj Agrawal
 

 
Hon'ble Siddharth,J.

Heard Sri Gulrez Khan, learned Counsel for the petitioner and Sri Anuj Agrawal, learned Counsel for the respondents.

The petitioner has filed the above noted writ petition praying for the quashing of the Judgment and Decree dated 31.03.2011, passed by Civil Judge (Senior Division), Chitrakoot in SCC Suit No.05 of 2008 and the revisional order dated 28.05.2012, passed by Additional District Judge, Court No.2, Chitrakoot in SCC Revision No.01 of 2011.

The brief facts of the case are that the petitioner is tenant of a shop belonging to a private religious Institution, Thakur Ram Janki Ji Virajman Mandir, situated at Bazar Basarbahi, Qasba Manikpur, Tehsil Karvi, Post Manikpur, District Chitrakoot. After service of notice under Section 106 of Transfer of Property Act, read with Section 20(2) of U.P. Act No.13 of 1972 alleging arrears of rent and material alteration in shop in dispute, SCC Suit No.05 of 2008 was instituted by the respondent against the petitioner. The petitioner deposited the admitted rent under Section 20(4) of the U.P.Act No.13 of 1972 and the aforesaid amount was withdrawn bythe respondents. After exchange of pleadings the following issues were framed bythe Trial Court in the Suit,

i). Whether the notice under Section 20(2) of the U.P.Act No.13 of 1972 sent by the plaintiff was served upon the defendant? If yes, then its effect?

ii).	Whether the defendant made default in the 			payment of rent ?.
 
iii).	Whether the defendant made material alteration in the disputed shop, which diminished its value  and use of the same?
 
iv).	Whether the defendant is entitled to benefits as per Section 20(4) of the U.P.Act No.13 of 1972?
 
v).	To what Relief, if any the plaintiff is entitled?
 
The Trial Court dismissed the Suit by its Judgment and Decree dated 31.03.2011 with the specific finding that the petitioner has deposited the entire due rent and there is no arrears against him nor he has made any material alteration in the ship in dispute. 
 
The respondent preferred SCC Revision No.12/2011 which was allowed by the impugned order dated 28.05.2012 and remanded for fresh decision to the Trial Court.
 

The petitioner has assailed the revisional order aforesaid on the ground that the revisional court has made out a new case by raising an issue whether the property in dispute is exempted under Section 2(1) (bb) of the U.P.Act No.13/1972 are another words whether the U.P. Act No.13/1972 is applicable or not. The petitioner has further stated that there was no dispute raised before the Trial Court regarding the applicability of the Act but the revisional Court has gone beyond the pleadings of the case and has made out a third case for decision by the Trial Court. It was never the case of the plaintiff that the provisions of Section 2(1) (bb) of the U.P.Act No.13 of 1972 are attracted in his case. There was no documentary or oral evidence laid on this issue.

The learned Counsel for the respondents has stated that he does not wants to file any Counter Affidavit since a pure question of law is involved in this case and which can be decided without any Counter Affidavit.

The reply of the learned Counsel for the respondent is that the question of jurisdiction can be raised at any time and therefore the revisional Court has rightly remanded the case for fresh decision by the Trial Court on the basis of the issues involved. He has further stated that the question of jurisdiction is decided on the basis of law and even in the absence of issues before the Trial Court, the Revisional Court can discern the same and pass order of remand to the Trial Court.

The learned Counsel for the petitioner has relied upon the judgment in the case of Bachhaj Nahar Vs. Nilima Mandal and another, AIR 2009 SC 1103 and has placed reliance on paragraph nos.8, 10, 11 and 12. For the shake of brevity, only paragraph no.12 is being referred to below:

"12. It is thus clear that a case not specifically pleaded can be considered by the Court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Swarup Gupta (supra) referred to above and several other decisions of this Court following the same can not be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case whichis not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stae of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded onthat basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, sue moto."

The learned Counsel for petitioner has further relied upon the Judgment of this Court in the case of Basic Shiksha Parishad through Zila Basic Shiksha Adhikari Vs. Prescribed Authority/Additional City Magistrate-(IIIrd) and others , 2013 (96) ALR 150, in support of his contention that the question whether the shop in dispute was owned by a Trust which was Private or Public Charitable Trust / Religious Institution was required to be proved on the basis of pleadings to that affect by the parties and in order to attract exemption under Section 2(1)(bb( of U.P. Act No.13 of 1972.

The learned Counsel or the respondent has not placed any authority against the above authorities relied upon by the petitioner.

Therefore, the only conclusion which can be drawn from the above consideration of the facts and legal issues involved in the case is that the revisional Court has mis-exercised jurisdiction vested in it by law by remanding the case on an issue which was neither pleaded nor proved before the Trial Court. The Revisional Court was not vested with the power of making out a third case and remanding the matter to the Trial Court for decision. A perusal of the Memorandum of Revision filed by the respondent before the Revisional Court also shows that no such ground regarding the applicability or otherwise of U.P.Act No.13 of 1972 was taken therein and therefore it was not open for the revisional Court to decide the revision on such an issue.

The order dated 28.05.2012, passed by Additional District Judge, Court, No.2, Chitrakoot, in Revision No.01 of 2011 under Section 25 of the Provincial Small Causes Court is quashed. The revisional Court is directed to decide the aforesaid revision again in accordance with law within the limits of the jurisdiction vested in it by law.

The writ petition is partly allowed. Parties shall bear their own costs.

Order Date :- 15.12.2017

Ruchi Agrahari