CRP/4/2021 of M/s Himal Match Co. Pvt. Ltd and ANR. Vs Kiran Agrawal on 9 December 2021

O R D E R

1. The instant Petition has been filed by the Petitioners assailing the impugned Order dated 17-02-2021, in Eviction Suit No.02 of 2018, whereby the Learned District Judge, refused to frame an additional issue, viz., “Whether the suit is bad for non-joinder and mis-joinder of parties?”

2. Before this Court, it is submitted by Learned Counsel for the Petitioners that M/s. Balchand Udairam is a necessary party to the matter as he had sold the premises to the Plaintiff, Respondent herein, but since he was not impleaded as a party the prayer for the additional issue was made.

3. Per contra, Learned Counsel for the Respondent submits that there was no pleading to the effect that M/s. Balchand Udairam was ever a necessary party to the proceeding.

4. Having considered the submissions, I find that the averments in the Plaint reflect that M/s. Balchand Udairam has sold and transferred his four storied RCC building including the suit premises to the Plaintiff/Respondent, by virtue of a Sale Deed dated 14-08-1991 and immediately thereafter the Plaintiff informed the Defendants/Petitioners herein, about the said purchase. This statement has been squarely denied by the Defendants/Respondents in their Written Statement. For clarity, the relevant portion of Paragraph 2 of the Plaint and relevant portion of Paragraph 13 of the Written Statement are extracted hereinbelow; Page | 1

High Court of Sikkim

Record of proceedings

Plaint

“2.That during subsistence of the said tenancy M/s Balchand Udairam sold and transferred its (his) aforesaid four-storied RCC building including the Suit Premises to the Plaintiff, by virtue of a sale deed dated 14[th] August 1991 and immediately thereafter the Plaintiff informed the Defendant about the said purchase and thereby requested the Defendant to make payment of monthly rent to her, but in spite of having knowledge of the above fact, the Defendant has never paid a single farthing on account of monthly rent to the Plaintiff and as such the Defendant had made default in payment of monthly rent for which the Defendant has forfeited his right to get protection from eviction under the law. The copy of the Deed of Sale has been annexed herewith and marked as Annexure-P1.”

Written Statement

“13. That with regard to the statements and allegations made in paragraph 2, it is stated that the statements made therein are incorrect and misconceived and accordingly denied. It is denied that M/s Balchand Udairam sold and transferred the four storey RCC building to the Plaintiff vide the purported Sale Deed dated 14.08.1991. The Answering Defendants deny the existence, execution and attestation of the purported Sale Deed. It is denied that the Plaintiff informed the Answering Defendants regarding the said purchase and the Plaintiff in this regard is put to the strictest proof thereof. It is further denied that the Answering Defendants had knowledge about the purported sale. It is denied that the Answering Defendants have never paid rent to the Plaintiff. It would be relevant to mention herein that the Answering Defendants have been depositing the monthly rent on a regular basis to M/s Balchand Udairam against money receipts duly issued by M/s. Balchand Udairam. The Answering Defendants have been regularly paying the rent to M/s. Balchand Udairam till the month of January 2009, after which M/s. Balchand Udairam refused to accept the rent for reasons best known to them. As such, due to the non-acceptance of the rent, the Answering Defendants have been depositing the rent in Postal Savings on account of Shri K. B. Biswarkarma C/O Himal Match Co. ………………..”

5. This Court is aware that in a Suit for Eviction, Title need not be established. At the same time, it requires no reiteration that Order XIV Rule 1(1) of the Code of Civil Procedure, 1908 (for short “CPC”), which deals with framing of Page | 2

High Court of Sikkim

issues specifically lays down that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. The Petitioners are not required to aver that M/s. Balchand Udairam is a necessary party for the purpose of framing an issue. The Pleadings specify that he had sold the premises to the Respondent herein and the Defendants in Paragraph 13 of their Written Statement have denied the said sale. A fact has been affirmed by one party and denied by another.

6. Thus, the Court necessarily should have framed the above extracted issue as an additional issue in view of the provision of Order XIV Rule 5 of the CPC and to give a quietus to the dispute between the parties. Added to the above, Order XIV Rule 5(1) of the CPC allows the Court at any time before passing a decree, to amend the issues or frame additional issues in such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.

7. Order XIV Rule 5(2) of the CPC lays down that the Court may also, at any time before passing a decree, strike out any issue that appear to be wrongly framed or introduced.

8. In light of the legal provisions cited above and the powers with which the Court is clothed to take steps as required for framing or striking out additional issues which can well be exercised by the Court at any time before passing a decree, the impugned Order dated 17-02-2021 is set aside.

9. The Learned Trial Court shall frame the additional issue, viz., “Whether the suit is bad for non-joinder and mis-joinder of parties?”

10. Civil Revision Petition stands disposed of accordingly. 11. Copy of this Order be transmitted to the Learned Trial Court for information and compliance.

Judge

ds 09-12-2021

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