SAO No.7 of 2009 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** SAO No.7 of 2009 DATE OF DECISION: 16.04.2009 **** Gulshan Kumar and another . . . . Appellants VS. Sukhdev Kumar . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Jatinder Singla, Advocate for the appellants. **** RAKESH KUMAR JAIN J. This appeal is filed against the order of remand passed by the Additional District Judge, Sangrur dated 10.12.2008. In brief, the facts of the case are that plaintiff (Sukhdev Kumar) filed a suit for mandatory injunction seeking a direction against defendants No.2 and 3 (appellants) to deliver vacant possession of shops bearing Nos.24-N & 25-N situated at Khai Darwaja, Lehragaga. The plaintiff has alleged that he was a tenant in the aforesaid shops for the last 28 years. Earlier, defendant No.1 (Nagar Council) threatened to dispossess him from the said shops for which he had to file a suit for injunction bearing Civil Suit No.2 of 2.1.1973 titled as Sukhdev Kumar Vs. M.C. SAO No.7 of 2009 - 2 - Lehragaga, which was decreed in his favour by the Sub Judge, Ist Class, Sunam on 28.7.1973. The plaintiff further alleged that in December, 1997, he had to temporarily shift to Budhlada. As he had blind faith upon defendants No.2 and 3, so he entrusted the keys of the shops in dispute to them but defendants No.2 and 3 in connivance with other defendants illegally got changed the tenancy in their names in the record of Municipal Council, Lehragaga. In the month of May/June, 1998, the plaintiff visited Lehragaga and asked defendants No.2 and 3 to vacate the shops and handover the possession to him but defendants No.2 and 3 refused to vacate the shops on the ground that tenancy of the shops in question has been transferred in their names. Plaintiff lodged a complaint in this regard to the Regional Deputy Director Local Bodies, Patiala, Executive Officer, Lehragaga and other officials and sent his request on 4.8.1998, 20.10.1998, 10.11.1998, 2.1.2000 and 26.9.2000 but to no avail. The plaintiff served a notice under Section 49 of the Punjab Municipal Act, 1911 (in short ‘the Act’) upon defendants No.1, 4 and 5 on 21.11.2000 but to no affect. Therefore, the present suit was filed. On Notice, defendants No.1 to 5 filed their separate written statement. All the defendants took almost similar preliminary objections to contest the suit on the ground that neither the plaintiff has locus standi nor cause of action to file the suit. The suit is not maintainable. The plaintiff is estopped by his act and conduct. The suit has not been properly valued for the purpose of Court fee and jurisdiction. The site plan of the shops in dispute has not been filed with the plaint, therefore, the suit is SAO No.7 of 2009 - 3 - liable to be dismissed. The plaintiff has not issued any notice under Section 80 of the Civil Procedure Code (in short ‘CPC’) before filing of the suit against defendants No.4 and 5. On merits, it was pleaded by defendant No.1 (Nagar Council) that shops in dispute were allotted to plaintiff but about 18/19 years ago, the plaintiff left his business at Lehragaga and settled at Budhlada. He vacated the shops in dispute and handed over the possession of shop No.24 to defendant No.2 and shop No.25 to defendant No.3. The tenancy has been changed of the shops in dispute in favour of defendants No.2 and 3 who are regularly paying rent to the Nagar Council, Lehragaga. Thus, the plaintiff is not the tenant of defendant No.1. Defendant Nos.2 and 3 alleged in their written statement that admittedly the shops in dispute were allotted to plaintiff but in the year 1980 he closed his business and shifted to Budhlada. In the year 1982-1983, the plaintiff approached the defendants No.2 and 3 and asked them to take the shops and pay rent to defendant no.1. In this manner, the plaintiff received Rs.2000/- for each shop from defendants No.2 and 3 of the material used on the shops and issued receipts but the same were not traceable. Defendants No.4 and 5 admitted that a representation dated 4.8.1998, 2.1.2001 made by the plaintiff was received in their office. The applications dated 20.1.1998 and 26.9.2000 were not received. The applications dated 4.8.1998, 20.10.1998, 2.1.2000 and 26.9.2000 were received in their office from the Director Local Govt. Punjab, Chandigarh. It is further alleged that reply to the application dated 4.8.1998 was sent to the Government vide letter dated 10.12.1998 and 09.08.1999. On receipt of a legal notice under Section 49 of the Act, the Executive SAO No.7 of 2009 - 4 - Officer, Nagar Council, Lehragaga was directed to give suitable reply to the concerned Advocate under intimation to the defendants. It was also alleged that tenancy was rightly changed in the name of defendants No.2 and 3. The plaintiff never challenged the change of tenancy during the period of more than 18 years nor paid any rent to the Nagar Council, with regard to shops in dispute. Now defendants No.2 and 3 are the tenants. The plaintiff filed replication to all the written statements. The averments made in the plaint were reiterated and those contained in the written statement were denied. On 11.12.2001, the learned trial Court framed the following issues: “1. Whether the plaintiff inducted defendants No.2 and 3 as licensees, in the shop in dispute in the month of December, 1997, and license stands revoked? OPP 2. Whether the plaintiff is entitled to decree of mandatory injunction? OPD 3. Whether the plaintiff has no locus standi and cause of action to file the suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff is estopped by his own act and conduct from filing the suit? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether the suit is not maintainable for want of notice U/s 80 CPC? OPD SAO No.7 of 2009 - 5 - 8. Relief.” On 10.6.2006 an additional issue was also framed which reads as under: “7A. Whether the suit filed by the plaintiff is beyond the period of limitation? OPD” In order to substantiate their case, both the parties led their evidence. The plaintiff examined himself as PW1, Raman Narinder Sharma as PW2, Subhash Chand Clerk as PW3 and then closed the evidence. Whereas the defendants examined Sh.T.R. Sharma as DW1, Gurmail Singh as DW2, Gulshan Kumar as DW3 and Madan Lal as DW4. The evidence was then closed. The learned trial Court took up issue No.1 and 2 together and decided them separately against the plaintiff. Issues No.3 to 7 were decided separately and while deciding issue of relief, it was held that in view of finding recorded under issue No.2 the suit of the plaintiff failed. Admittedly, the additional issue No. 7A framed on 10.6.2006 was neither referred to by the trial Court in its judgment nor it was separately decided. Aggrieved against the judgment and decree of the learned trial Court, plaintiff filed first appeal. The learned Appellate Court found that the trial court has held that suit for mandatory injunction is maintainable but within a reasonable time from the date of termination of licence. It was held that the learned trial court has not recorded any finding on issued No.7Abut SAO No.7 of 2009 - 6 - in view of the provisions of Order 20 Rule 5 CPC it was incumbent upon the trial Court to record finding on all the issues. It was also observed that decision on issue No.7A may affect the findings of the learned trial Court on issue No.2 because issue No.7A relates to limitation and the plaintiff has been non-suited on the ground that he has not filed the suit within a reasonable time. On these premises, judgment and decree of the trial Court was set aside and the matter has been remanded back to the learned trial Court with the direction to decide the matter afresh. Mr.Jatinder Singla, learned counsel appearing on behalf of the appellants has vehemently contended that order passed by the learned First Appellate Court dated 10.12.2008 setting aside the judgment-decree of the trial Court and remanding the matter back on the ground that issue No.7A has not been decided by the trial Court is illegal because the finding has already come on record on the point of limitation that the licence was revoked in May/June 1998 but the suit has been filed for mandatory injunction on 23.1.2001 after a period of 2 years and 8 months which is held to be not in a reasonable time within which the suit has to be filed by the plaintiff for getting the possession back. It is also contended that if the trial Court has not adverted to additional issue No.7A framed on 10.6.2006 while disposing of the suit, it does not affect the merits of the case as any finding which is to be recorded in that issue has already come on record. Learned counsel for the appellant, in this regard, has relied upon a decision of this court in the case of “Puran Singh Vs. Nathu and another” 2003(1) RCR (Civil) 720. I have heard learned counsel for the appellant. SAO No.7 of 2009 - 7 - The undisputed facts of this case are that the plaintiff was the tenant of the shops in question. Issues were framed by the trial court on 11.12.2001 and an additional issue No.7A was framed on 10.06.2006. The said additional issue is an issue of limitation which has not been adverted to in the judgment of the trial Court although all other issues were distinctly and separately decided. It is also undisputed that the First Appellate Court has allowed the appeal and remanded the matter back to the trial Court to decide all issues observing that Order 20 Rule 5 CPC provides that all the issues have to be decided separately. Thus the question involved in this appeal is as to whether Order 20 Rule 5 CPC is mandatory. It is, therefore, necessary to reproduce Order 20 Rule 5 CPC which reads as under: “5. Court to State its decision on each issue. - In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit.” There is an exception to Order 20 Rule 5 which is provided under Order 14 Rule 2 CPC which is reproduced as under: “2. Court to pronounce judgment on all issues.- (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of SAO No.7 of 2009 - 8 - on an issue of law only, it may try that issue first if that issues relates to: - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In this regard, it has been held by the Division Bench of the Karnataka High Court in the case of “Lakshmamma Vs. Kamalamma and others” AIR 2001 (Karnataka) 120 “that the trial court also erred in not considering and deciding issue Nos. (2) to (5). Under Order 20 Rule 5 it is mandatory that the Court shall state its finding or decision with reasons thereof upon each separate issue and all the distinct issues have to be answered by the finding supported by reasons. The exceptional situation is provided under Order 14, Rule 2 where an issue relating to the jurisdiction or a bar to a suit created by any law for the time arises for determination and if court can once and for all dispose of the case with reference to the said issues only. In such a situation, the Court is entitled to postpone the settlement of other issues only after the issue has been determined and may deal with the suit in accordance with the decision on the said preliminary issues. In the instant case, issue No.(1) obviously cannot be considered as one covered by the purview of Order 14, rule 2”. Similarly, a Division Bench of the Kerala High Court in the case of “Union of India Vs. Subbammal” 1998 Civil Court Cases SAO No.7 of 2009 - 9 - 422 held that in a case of ex parte decision, the Court is required to state its finding on each separate issue. The judgment relied upon by the learned counsel for the appellant in the case of Single Bench of this court in the case of Puran Singh (supra), it was held that defect in verification and non- compliance of the provisions of Order 7 rule 1(j) and Order 20 rule 5 CPC are only technical objections which do not go into the root of the case. Thus, in view of the above discussion, I do not find any error in the order of the learned Court below. Therefore, the present appeal is dismissed. No costs. (RAKESH KUMAR JAIN) APRIL, 16, 2009 JUDGE vivek