Madhya Pradesh High Court
Nemichand Bardiya vs Shriram Mandir Turst on 21 December, 2021
Author: Vivek Agarwal
1 MA-2581-2013
The High Court Of Madhya Pradesh
MA No. 2581 of 2013
(NEMICHAND BARDIYA Vs SHRIRAM MANDIR TURST)
Jabalpur, Dated : 21-12-2021
Shri Amalpushp Shroti, learned counsel for the appellant.
Shri Umesh Trivedi, learned counsel for respondent No.1.
This Misc. Appeal has been filed by the defendant under Order
43 Rule 1(U) of the CPC being aggrieved of the judgment dated
28.06.2013 passed by the learned 2nd Additional District Judge,
Balaghat in Civil Appeal No.4-A/2013, arising out of judgment and
decree dated 23.02.2010, passed by the learned 4th Civil Judge,
Class-II, Balaghat in Civil Suit No.22-A/2009.
It is submitted that once the Learned First Appellate Court had
come to a conclusion that there was misjoinder of parties and it is in
fact the Deity which should have been impleaded as a plaintiff and
should have sued the defendant/appellant then there was no cause for
the First Appellate Court to have remanded the matter to the trial
Court to fill in the lacuna and provide opportunity to the plaintiff to
sue the defendant in the name of the Deity. It is submitted that once
this finding has been recorded that suit should have been filed by the
Deity and not by the trust then Appellate Court should have allowed
the appeal after setting aside the judgment and decree passed by the
learned Trial Court.
Though, Shri Umesh Trivedi, learned counsel for respondent
No.1 pleads no instructions in the matter and submits that he has
issued NOC but fact of the matter is that when impugned order is
tested on the touchstone of the pleadings in the matter then it is
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evident that a suit was filed by Shri Ram Mandir Trust, through its
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trustee alleging that Shri Ram Mandir Trust is a registered public trust
and the property of the trust is situated in Balaghat City. In the suit
itself, it is mentioned that defendant had taken a room in the shape of
shop on monthly rent of Rs.500. For default of payment of rent,
tenancy was terminated and the suit was filed for vacant possession of
the suit premises and mesne profits.
A written statement was filed by the defendant who are
appellants before this Court, which is part of the record as Annexure-
A/4. In the written statement they have not taken any plea that the suit
property is not of Shri Ram Mandir Trust but that of the Deity,
therefore, it is the Deity which could sue the defendant and not the
trust. Even a perusal of the issues which were framed by the trial
Court reveals that it had framed following issues, namely whether
suit has been filed by a competent person and whether plaintiff had
terminated the tenancy of the defendant in a legal manner? It has come
on record that trust was registered on 31.08.1953, its registration
certificate was produced along with a copy of the rules of the trust as
Exhibit D-14.
In terms of the provisions contained in Rule 20 of the Trust
Deed, there is a provision for termination of tenancy authorizing the
trust, that in case of default of payment of rent, trust will be entitled
to either get the premises evicted or secretary will be entitled to
initiate proceedings from the side of the trust.
It is evident from the orders passed by Learned 4th Civil Judge,
Class-II that only an objection was raised on behalf of the defendant
to the extent that since corum was not complete therefore, the
authorization in favour of the Secretary of the Trust cannot be said to
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be just and legal and it cannot be said that any authority was vested in
the secretary to file the suit for eviction.
Learned Trial Court has dealt with this issue and has noted a
fact which is not disputed by the appellant's counsel, that there is a
provision in Rule 8 that corum for a meeting of the Executive
Committee will be 4 persons and in case of inadequate attendance and
lack of corum, adjourned meeting can be convened on the next day for
which rule of corum will not be applicable. It has also noted a fact
that on 21.12.2006, exhibit P-2, meeting of the Executive Committee
had taken place and 13 persons were present in it and they had
unanimously passed a resolution to institute a suit for eviction and
recovery of mesne profits.
As per the law laid down by Patna High Court in case of Siri
Chand Prasad and Ors. Vs. Lakshmi Singh And Ors. AIR 1969
Patna 107, it is held that Order 41 Rule 25 of the Code of Civil
Procedure provides that "Where the Court from whose decree the
appeal is preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the appellate Court
essential to the right decision of the suit upon the merits, the appellate
Court may, if necessary, frame issues, and refer the same for trial to
the Court from whose decree the appeal is preferred, and in such case
shall direct such Court to take the additional evidence required; and
such Court shall proceed to try such issues, and shall return the
evidence to the appellate Court together with its findings thereon and
the reasons thereof."
Rule 25 of Order 41 CPC authorizes the appellate court to
frame an issue, if in its opinion the trial Court has omitted to frame or
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try any issue or to determine any question of fact which is essential to
the right decision of the suit upon merits. It is held that this leads to
the consideration whether the trial court has made some omission in
framing or trying the issue.
Order 14 Rule 1 CPC provides the mode as to how an issue in a
suit is to be framed. Under this provision, each material proposition
affirmed by one party and denied by the other shall form a subject of a
distinct issue. Material propositions are defined as those propositions
of law or fact which a plaintiff must allege in order to show a right to
sue or a defendant must allege in order to constitute his defence;
when, a material proposition of fact or law is affirmed by one party
and denied by the other, issues arise.
The Rule further lays down that at the first hearing of the suit,
the Court shall after reading the plaint and the written statement, if
any, and after such examination of the parties, as may appear
necessary, ascertain upon what material propositions of fact or of law
the parties are at variance and shall thereupon proceed to frame and
record issues on which a right decision of the case appears to depend,
and nothing in the rule requires the Court to frame and record issue
where the defendants at the first hearing of the suit make no defence.
The Rule is clear, that the issues, arise on the pleadings of the parties.
If the defendant has not made any defence or has not put forward a
particular defence, no issue arises therein.
The Supreme Court in case of Sita Ram Vs. Radha Bai And
Ors, AIR 1968 SC 538 has held that the trial Court Judge should not
determine an issue not arising on the pleadings of the parties.
In the present case, it is evident that there was no pleading as to
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the status of the trust to file a suit for eviction and only objection was
in regard to the corum, i.e. whether the plaintiff secretary was
authorized by the Executive body of the Trust to file a suit or not,
therefore, the First Appellate Court exceeded its jurisdiction in
framing an issue which was not part of the pleading and thus violated
the mandate of the Order 41 Rule 25 of the CPC so also of Order 14
Rule 1 of CPC. Therefore, the impugned order passed by the First
Appellate Court having been passed on incorrect appreciation of law
and facts deserves to be set aside and is set aside.
Matter is remitted to the First Appellate Court to decide the
appeal on its own merits within 90 days' from the receipt of copy of
the order being passed today.
Registry is directed to send intimation of this order to the
learned First Appellate Court i.e. 2 nd Additional District Judge,
Balaghat within seven working days.
(VIVEK AGARWAL)
JUDGE
AT
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