Shaikh Ayazuddin Shaikh ... vs Mirza Haris Mirza Arif
2021 Latest Caselaw 14898 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      926 SECOND APPEAL NO.383 OF 2021

                      SHAIKH AYAZUDDIN SHAIKH AMINUDDIN

                                          VERSUS

                           MIRZA HARIS MIRZA ARIF
                                        ...
                   Advocate for Appellant : Mr. Natu Sharad V.
                   Advocate for Respondent : Mr. Uday D. Alvi
                                        ...

                                    CORAM :      SMT.VIBHA KANKANWADI, J.
                                    DATE :       12-10-2021.

ORDER :

1. Heard learned Advocate Mr. S. V. Natu appearing for the

appellant as well as learned Advocate Mr. U. D. Alvi appearing for the

respondent.

2. The present appellant is the original defendant who filed Regular

Civil Suit No.2148 of 2012 for mandatory injunction directing the

defendant to vacate the suit premises and for recovery of

compensation/ licence fees together with interest. The said suit came

to be decreed by the learned 2 nd Joint Civil Judge, Junior Division,

Aurangabad, on 07-09-2016. Present appellant filed Regular Civil

Appeal No. 273 of 2016 which was dismissed by learned District

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Judge-5, Aurangabad on 21-06-2021. Hence, this second appeal.

3. At the outset, it is to be noted from the paper book made

available of the First Appellate Court containing the pleadings and

the evidence that in the plaint the plaintiff had come with a case that

he had entered into leave and licence agreement with the defendant

on 06-11-2009 and the tenure was till July 2012. It was then

contended that the licence fees that was agreed to be paid by the

defendant was to the tune of Rs.1800/- per month. It was then

contended that there was arrears of licence fees. It was also then

contended that there was breach of terms of agreement. The

defendant did not pay the electricity charges, water charges,

property tax etc. Notice was issued for payment of the outstanding

amount and handing over the possession of the suit premises which

is in fact stated to be a pan shop.

4. At the outset, it is to be noted that the plaintiff had prayed for

decree of mandatory injunction directing the defendant to remove

his belonging articles and goods lying in the suit premises and to

vacate the suit premises. The first and the foremost question that

will arise is whether the suit was maintainable in the present form

when the suit could have been filed for possession. When the tenure

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of the licence agreement had expired then what could be the status

of the defendant, was in question and depending upon the same the

relief. It appears that in clear terms the plaintiff has not stated

anywhere as to under which provisions of law he filed the suit. If it

was under Specific Relief Act, then whether he can recover licence

fees, is a question. If we consider the first paragraph of the

Judgment of the Trial Court, then it is stated that the recovery of

compensation/licence fees is under the provisions of Maharashtra

Rent Control Act. Then also whether the valuation that has been

made by the plaintiff regarding the suit was correct, is another

question. One more factor that is required to be considered from

the contents of the written statement that though the defendant is

admitting the execution of an agreement dated 06-11-2009, yet he

is disputing that he did not occupy the suit shop in spite of the

execution of the leave and licence agreement. It had come on

record in his evidence that his brother is occupying. Taking into

consideration that fact on record and the submissions made that the

said brother had tried to get himself added as a party to the

proceeding, but then it is stated that the learned Trial Judge rejected

that application. Admittedly for whatever months the plaintiff is

saying that the defendant had paid the licence fees ; the plaintiff has

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not issued any receipts. It appears that both the Courts below

taking into consideration the fact that is admitted that the defendant

had executed the leave and licence agreement dated 06-11-2009

proceeded on that basis, however, it is to be noted that in his entire

affidavit-in-chief the plaintiff has not made any reference to such

leave and licence agreement dated 06-11-2009. He was referring to

leave and licence agreement dated 06-11-2011. It appears that a

leave and licence agreement was produced at Exhibit 26 but it

appears to be dated 06-11-2009 and not 06-11-2011. The learned

Advocate for the respondent is now contending that at the appellate

stage there was an application filed to correct the typographical

mistake. Whether such belated step can be so considered would be

a question and when basically whether the suit would be

maintainable in the form goes to the root of the case and

unfortunately it has not been adhered to by both the Courts below.

Definitely substantial questions of law are arising in this case. One

more aspect that is required to be considered from the Judgment of

the Appellate Court is that, as to whether it is adhering to the

provisions of Order 41 Rule 31 of the Code of Civil Procedure as only

one point has been framed for determination i.e. whether the

Judgment an order of the learned Trial Court requires interference.

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It can be seen that the said Judgment prima facie does not adhere

to the decisions by Hon'ble Apex Court in Santosh Hazari vs.

Purushottam Tiwari deceased by L.Rs., reported in 2001 (2) Mh.L.J.

786, Barnes School and Another vs. Arzoo Allan Baker, reported in

2012 (3) Mh.L.J. 310, the Judgment of this Court wherein it has

been held that,

"It is mandatory for the Court to state the points for determination, decision thereon, reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled."

Further reliance can be placed on Hazrat Ali Mohamad (D) through

Lrs. vs. Prabhakar Dattaram Sirvoicar, reported in 2015 (5)

ALL.M.R. 730, wherein the similar ratio has been laid down. Further

reliance can be placed on H. Siddiqui (Dead) By LRs. vs A.

Ramalingam, reported in (2011) 4 SCC 240, wherein it has been

observed thus on Order 41 Rule 31 of CPC :-

"21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the

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appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions."

5. Further, the Division bench of this Court in Khatunbi wd/o

Mohammad Sayeed And others vs. Aminabai w/o Mohammad Sabir,

reported in 2006 (6) Mh.L.J. 759, wherein it is observed that :-

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"The non-compliance of mandatory provision of law comprised under Order 41, Rule 31 of the Code of Civil Procedure by the Appellate Court while passing the impugned judgment clearly warrants setting aside the Judgment and remanding the matter to the First Appellate Court to consider the appeal afresh in accordance with the provisions of law."

Under such circumstances, the second appeal stands admitted.

6. Following are the substantial questions of law :-

A) Whether the Judgment passed by the First Appellate Court adheres to the mandatory requirement of Order 41 Rule 31 of the Code of Civil Procedure ? If no, whether it requires remand ?

B) Whether the suit filed by the original plaintiff in the form was maintainable under the Specific Relief Act ? In other words, whether suit for mandatory injunction for directing the defendant to vacate the premises was maintainable ?

          C)      Whether the suit was properly valued ?


          D)      Whether           the   suit   was   bad    for     non-joinder         of
          necessary parties ?


          E)      Whether both the Courts below committed error in

relying on agreement of leave and licence dated 06-11-

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2009 in absence of pleading and proof by the plaintiff;when he was relying on the leave and licence agreement dated 06-11-2011 ?

F) Whether the plaintiff was having locus standi to file the suit ?

         G)       Whether interference is required ?


7.       Issue notice to the respondent.


8.       Learned         Advocate   Mr.   U.       D.   Dalvi    waives       notice       for

respondent.


9.       Call for record and proceedings.



                                           (SMT. VIBHA KANKANWADI)
                                                     JUDGE


vjg/-