HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 166 of 2007 Smt. Kanta Rani Vs. U.P. State Industrial Development Corporation Ltd and another Approved for reporting. Date of Decision- 05.03.2008. Initial of Judge: ............... ,,,,,,,,,,,,,,,,,, .................. HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 166/2007 Smt. Kanta Rani W/o Sri Rajpal R/o A-6, Shivalik Nagar B.H.E.L., Ranipur, Haridwar .....Appellant-Plaintiff Vs. 1. U.P. State Industrial Development Corporation Ltd. Kanpur Complex through its General Manager U.P.S.I.D.C., A – 1/4, Lakhanpur, Kanpur – 208024 2. The Regional Manager U.P. State Industrial Development Corporation Ltd. R/o 65/1, Panchshil Colony, Garh Road, Meerut .....Defendants-Respondents 5.3.2008 Hon’ble Rajesh Tandon, J. Heard Shri S.K. Jain, counsel for the appellant. 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 20.11.2007 passed by the appellate court in civil appeal no. 70 of 2006. 3. Second appeal was admitted on the following substantial questions of law: - 1. Whether the cancellation of the lease deed dated 27.10.1987 cancelled on 26.3.1988 is legal in view of the fact that the permission was sought by the plaintiff for raising constructions? 2. Whether the suit for permanent injunction is maintainable as the plaintiff continued to be in possession and the violation of the lease deed will only create the circumstance to file the suit for eviction against the plaintiff and plaintiff cannot be evicted except in accordance with law? 4. Briefly stated, a suit being suit no. 96 of 1998 was filed for permanent injunction restraining the defendants from interfering with the property in question. According to the plaint averments, the plaintiff had applied for lease of plot before the defendants and a plot being no. F 46 situate at Bahadarabad, district Haridwar was allotted to the plaintiff. An agreement was also entered into between the plaintiff and the defendant no. 2 on 27.10.1987 in pursuance of which the possession of the property in dispute was given to the plaintiff on 9.4.1988. The plaintiff was given the No Objection Certificate to make constructions over the property in dispute. The plaintiff has made construction over the plot in dispute in the year 1993. Thereafter, the plaintiff started his small scale industry in the name and style of Pradip Chemicals and producing soaps and detergents. The plaintiff has paid all the installments with regard to the property in dispute. The plaintiff could not expand its small scale industry into a large scale industry due to deficiency of money. It has been stated that the plaintiff had never taken the electricity connection for producing soaps and detergents. In paragraph nos. 10 and 11 of the plaint, it has been stated as under: - 10- ;g fd izfroknhx.k dqN vU; yksxks ds izHkko esa vk x;s gSa ftl otg ls izfroknhx.k us oknuh dks rjg&rjg ls rax o ijs’kku djuk 'kq: dj fn;k gS vkSj ckj&ckj oknuh dks dg jgs gS fd oknuh }kjk iz’uxr IykV lEifRr fuEufyf[kr esa vHkh rd dksbZ fuekZ.k vkfn djds mRiknu ugh fd;k gS ftl laca/k esa oknuh }kjk izfroknhx.k ds le{k viuh fLFkfr Li"V djrs gq, lEifRRk fuEufyf[kr es o"kZ 1993 es fuekZ.k ds i’pkr~ ls oknuh iz’uxr lEifRr fuEufyf[kr esas viuk fMVjtsaV o lksi vkfn dk mRiknu djds viuk dkjksckj djrh pyh vkrh gSA 11- ;g fd izfroknhx.k oknuh dh dksbZ lquokbZ ugha dj jgs gSa rFkk mUgksus oknuh dks lquokbZ dk ekSdk fn;s cxSj gh oknuh dks lEifRr fuEufyf[kr dh ckcr dgk gS fd viuk vkcaVu lEifRr fuEufyf[kr ds laca/k es fujLr dj fn;k tk;sxk vkSj iz’uxr lEifRr dk dCtk Hkh izfroknx.k vius deZpkfj;ks ds lg;ksx ls tcjnLrh xSj dkuwuh :i ls izkIr dj ysaxsA izfroknh }kjk oknuh ds ikl dksbZ uksfVl IykV ds fuekZ.k ds laca/k esa Hksts fd oknuh mDr fuekZ.k iwoZ djkos vU;Fkk mldk vkoaVu fujLr dj fn;k tk;sxk tc fd izfroknhx.k }kjk Lo;a oknh ds ekufp= dh vof/k dks 31-3-1993 rd fof/kor~ :i ls fuekZ.k djus ds fy, c<+k;k x;k gS vkSj izfroknhx.k }kjk Hksts x;s leLr uksfVlks dk tokc oknuh }kjk fo/kh leer :i ls le; le; ij fn;k tkrk jgk gSA izfroknhx.k }kjk tcfd vius tokc uksfVlks esa fof/k fo:) :i ls bl rF; dks fNik;k x;k gS fd oknuh }kjk ekSds ij ,d dejs dk fuekZ.k djk;k gqvk gS vkSj oknuh fujarj mRiknu djrh pyh vkrh gSA fofRr; lgk;rk izkIr u gksus ds dkj.k oknuh viuk vU; fuekZ.k mDr IykV ij ugh dj ik jgh gS tcfd iznhi dSehdYl ds uke ls IykV ij fuekZ.k ¼mRiknu dk;Z½ izkjaHk ls vc rd fujarj fcuk fdlh jksd Vksd ds tkjh gSA 5. It has further been alleged by the plaintiff that the defendants are threatening the plaintiff that they will evict the plaintiff from the property in dispute forcibly and took over the possession of the property. Therefore, the present suit has been filed for permanent injunction restraining the defendants from interfering with the property dispute. 6. The defendant nos. 1 and 2 have filed a written statement and have admitted that the plot in question was leased out to the plaintiff. It has been submitted that the plaintiff has no cause of action to file the suit against the defendants. The suit is barred by Sections 34, 38 and 41 of the Specific Relief Act. The plaintiff has not stated the date or year of cause of action and, therefore, the suit of the plaintiff is liable to be dismissed because the provisions of Order 7 Rule 1 (e) of C.P.C. has not been complied with by the plaintiff. It has been submitted that the plaintiff was given the plot on lease for establishment of industrial unit but the plaintiff has not established any such unit, therefore, the plaintiff has violated the terms of the agreement. In paragraph nod. 24 and 25 of the written statement, it has been stated as under:- ^^24- ;g fd oknuh }kjk yksUMªh lksi ds fuekZ.k dk vLFkkbZ iathdj.k izek.k i= ftyk m|ksx dsUnz lgkjuiqj ls izkIr dj bl dk;kZy; esa izLrqr fd;k x;k Fkk tks egk izca/kd ftyk m|ksx dasUnz lgkjuiqj }kjk fnukad 14-9-1987 dks fuxZr fd;k x;k Fkk ftldh oS/krk ek= 13-3-1988 rd FkhA blds uohuhdj.k ds laca/k es oknuh }kjk dksbZ lk{; bl dk;kZy; es izLrqr ugh fd;s x;s gSaA 25- ;g fd bl dk;kZy; ds i= fnukad 21-1-93]7- 4-93] 10-10-94 o 29-11-94] 11-3-97 ,oa 5-5- 97 ds }kjk Hkw& mi;ksx uksfVl fuxZr fd;s x;s Fks fd Hkw[k.M ij fuekZ.k dk;Z iw.kZ dj mRiknu izkjaEHk djus gsrq lwfpr fd;k x;k Fkk tc fd oknuh }kjk fu"Ikfnr vuqcU/k fnukad 27-10-87 ds vuqlkj 24 ekg esa fuekZ.k dk;Z iw.kZ dj mRiknu yk;s tkus gsrq le; fn;k x;k FkkA** 7. It has further been submitted that the plaintiff was informed from time to time to start production but the plaintiff has not taken any action, therefore, the defendants as per the terms of the agreement have cancelled the allotment of the plot. 8. On the pleadings of the parties, the trial court has framed the issues to the following effect: 1. As to whether the defendants have right to interfere with the property, which is in possession of the plaintiff? If yes, its effect? 2. As to whether the suit is barred by Sections 34,38 and 41 of the Specific Relief Act? 3. As to whether the suit is liable to be dismissed as per Order 7 Rule 1A (e) of the Code of Civil Procedure? 4. To what relief, if any, the plaintiff is entitled to? 9. The plaintiff has produced paper no. 87 a 1 i.e. agreement, paper no. 88 a 1 i.e. possession certificate, paper no. 89 a 1 i.e. break up sheet, paper no. 90 a i.e. map, paper no. 91 C1 i.e. certificate issued by Jila Udyog Kendra, Saharanpur, paper no. 92 C 1 i.e. certificate copy of the certificate issued from Jila Udyod Kendra, Haridwar, paper nos. 26 a1/1 to 26 a1/2 i.e. receipts of bills, paper no. 27 a1 i.e. Tehbazari receipts of Nagar Panchayat, B.H.E.L. Ranipur, paper nos. 28 a/1 to 28 a/14 i.e. bills, paper no. 29 a1, i.e. receipt of tehbazari, paper no. 30 a 1 i.e. envelop, paper no. 31 a 1 i.e. letter issued by the U.P. Industrial Development Nigam Limited, paper no. 32 a1 i.e. postal receipts, paper no. 33c 1 i.e. copy of letter written by the plaintiff to the Regional Manager, paper no. 34 a1 i.e. photographs and negatives, paper no. 35 C1 i.e. copy of notice, paper no. 36 a 1 i.e. postal receipts and paper no. 67a 1 i.e. power of attorney. 10. The defendants have produced paper nos. 52 a1/1 to 52 a1/8 i.e. allotment letter, paper nos. 53 a1 to 53 a1/2 document of State Industrial Development Corporation Ltd with regard to allotment, paper nos. 54 a1 to 54 a1/12 i.e. agreement, paper no. 55 a 1 i.e. map, paper no. 56 a1 i.e. copy of letter issued by U.P.S.I.D.C. 11. In the oral evidence, the plaintiff has examined P.W.1 Rajpal and P.W.2 J.S. Bagga. The defendants have examined D.W.1 Kuldip Kumar in the oral evidence. 12. While deciding as to whether the defendants have right to interfere with the property, which is in possession of the plaintiff and further as to whether the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act, the trial court has recorded the finding that the plot was allotted in favour of the appellant by virtue of agreement entered into between the parties on 27.10.1987 and the possession was handed over on 9.4.1988 and in the year 1988 the plaintiff had applied for sanctioning of map which was sanctioned on 1.2.1989 and the sanction for construction as per the said map was valid upto 31.3.1993. The trial court has placed reliance on the statement of P.W.2 J.S. Bagga who has stated that construction to the extent of 17 x 24 feet has been made. However, the defendants no. 1 Kuldip Kumar was examined who has stated that the production has not been done and, as such, the issue was decided against the plaintiff. The trial court has observed as under: - ^^i=koyh ij miyC/k ekSf[kd ,oa nLrkosth lk{; ls ;g iw.kZr;k lkfcr gS fd izfroknhx.k }kjk tks vuqcU/k okfnuh ds lkFk fd;k x;k Fkk mlds vuqlkj tks 'krksZ r; dh x;h Fkh okfnuh }kjk mlds vuqlkj iz’uxr IykV ij fuekZ.k ,oa mRiknu dk;Z ugh fd;k x;k gS ftlds laca/k ea izfroknh }kjk dbZ ckj okfnuh dks i= Hkh fy[ks x;s gSa tks i=koyh ij nkf[ky gSaA blds vfrfjDr ;g Hkh Li"V gS fd okfnuh ds gd esa fd;k x;k vkoaVu izfroknh }kjk fujLr fd;k tk pqdk gS rFkk okfnuh }kjk i=koyh ij tks jlhnsa o QksVksxzk¶l nkf[ky fd;s x;s gSa muds voyksdu ls ;g Li"V ugha gksrk gS fd iz’uxr lEifRr ij okfnuh }kjk dksbZ mRiknu fd; tk jgk gS ;k ugh D;ksfd mDr jlhns Hkh fdlh ds }kjk lkfcr ugha djk;h x;h gS rFkk i=koyh ij QksVksxzk¶l nkf[ky fd;s x;s gSa mlds voyksdu ls ,d dejs dk fuekZ.k Li"V gksrk gS tcfd ,slk dgha Li"V ugh gksrk gS fd iz’uxr lEifRr ij fdlh izdkj dk dksbZ mRiknu fd;k tk jgk gks u gh mRiknu ls lacaf/kr lkeku fn[kk;k x;k gSa rFkk QksVks Hkh fdlh ds }kjk izekf.kr ugha fd;k x;k gSaA blds vfrfjDr ;g Hkh Li"V gS fd iz’uxr IykV ls okfnuh ds gd esa vkoaVu fd;k x;k Fkk ijUrq ml ij okfnuh }kjk Lo;a dksbZ dk;Z ugh fd;k x;k rFkk okfnuh ds ifr }kjk iz’uxr lEifRr ij dk;Z fd;k tkuk Li"V gS rFkk ;g Hkh Li"V gS fd okfnuh }kjk Lo;a U;k;ky; ds le{k mifLFkr gksdj vius dFku ugh fd;s x;s gSA oknh dh vksj ls dsoy mlds ifr dh vksj ls gh dFku fd;s x;s gSA ;g Hkh Li"V gS fd iz’uxr lEifRr ij fdlh izdkj dk dksbZ mRiknu ls lacaf/kr dk;Z Li"V ugha gksrk gS tks 'krksZa okfnuh }kjk izfroknh ds e/; r; gqbZ Fkh mlds vuqlkj okfnuh }kjk mRiknu ,oa fuekZ.k ugha fd;k x;k tcfd iz’uxr lEifRRk vkS|ksfxr {ks= ls lacaf/kr lEifRr gSA i=koyh ij miyC/k ekSf[kd ,oa nLrkosth lk{;ksa ls ;g iw.kZr;k lkfcr gksrk gS fd iz’uxr lEifRr izfroknhx.k dh lEifRr gS rFkk izfroknhx.k }kjk okfnuh dks lEifRr m|ksx gsrq nh x;h FkhA ;g Hkh Li"V gS fd okfnuh }kjk izfroknh ds lkFk gq, vuqcU/k dh 'krksZ dk mYya?ku fd;k x;k mlds i’pkr~ izfroknh }kjk okfnuh dk vkoaVu fujLr dj fn;k x;kA ,slh fLFkfr esa okfnuh dks dksbZ Hkh vf/kdkj iz’uxr lEifRr ds lac/k es lkfcr ugh gksrk gSA** 13. So far as issue as to whether the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act, the trial court has recorded the finding that the suit is barred by Sections 34, 38 and 41 of the Specific Relief Act. 14. While deciding as to whether the suit is barred by Order 7 Rule 1 A (e) of the Code of Civil Procedure, the trial court has decided the issue against the defendants and has recorded the finding that the suit is not barred by Order 7 Rule 1 A (e) of the Code of Civil Procedure. 15. On the basis of the aforesaid, the trial court has dismissed the suit. 16. Aggrieved by the judgment and order passed by the trial court, the plaintiff went in appeal. The appellate court has dismissed the appeal. 17. I have perused the record and on perusal of the record it appears that a certificate has been issued from Udyogik Industry, Saharanpur on 14-9-1987 copy of which is also on record. The agreement entered into between the parties shows the grant of lease in favour of the appellant. The appellate court ought to have considered and recorded findings on all the issues. Since the appellate court has not recorded the findings on entire issues, therefore, the judgment passed by the appellate court requires to be set aside and the District Judge is directed to decide the appeal afresh after considering the entire submissions arising out of the issues framed by the trial court. 18. Counsel for the appellant has referred the judgment of the Apex Court in S.V.R. Mudaliar (Dead) by L.Rs. and others v. Rajabu F. Buhari (Mrs.) (Dead) by L.Rs. and others reported in (1995) 4 SCC 15, where it has been held as under: - “14. We, therefore, do not propose to decide this fact by drawing any adverse inference against the respondent; but would do so on the basis of evidence led by the plaintiff. As already stated, this evidence has received better treatment at the hand of trial Judge, who, while holding that Kamal had acted as an agent of the defendants, referred to many circumstances also. Shri Parasaran had submitted that thought he appellate court is within its right to take a different view on a question of fact, that should be done after adverting done after adverting to the reasons given by the trial Judge in arriving at the finding in question. Indeed, according to Shri Parasaran an appellate court should interfere with the judgment under appeal not because it is not right, but when it is shown to be wrong, as observed by a three-Judge Bench of this Court in Dollar Co. v. C0llector of Madras (1975) 2 SCC 730. As to this observation, the contention of this Court examines a matter under Article 136. We do not, however, think if this meaning can be ascribed to what was observed. 15. There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding a fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what was stated by the Privy Council in Rani Hemanta Kumari Debi v. maharaja Jagadindra Nath Roy Bahadur 10 CWN 630 wherein, while regarding the appellate judgment of the High Court of Judicature at Fort William as “careful and able”, it was stated that it did not “come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge.” 19. In view of the aforesaid, second appeal is allowed and sent back to the court below for deciding afresh in the light of the observations made above. However, it is made clear that the appellant shall not be evicted from the plot in dispute till the final disposal of the matter. No order as to costs. (Rajesh Tandon, J.) 5.3.2008 Avneet