Skip to content


Shashi Pal Vs. Rajkumar Mahindra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 482 of 1981
Judge
Reported in21(1982)DLT38; 1982RLR38
ActsCode of Civil Procedure (CPC), 1908 - Sections 9; Specific Relief Act - Sections 42
AppellantShashi Pal
RespondentRajkumar Mahindra
Advocates: D.S. Marwah and; S.C. Gulati, Advs
Excerpt:
- .....was a tenant or a licensee. by the previous judgment dt. 1.3.75 and para 3 of the written statement reproduced above it stands proved that the petitioner was inducted by the respondent. whether he was a tenant or a licensee is immaterial in a suit for recovery of money on account of license fee or arrears of rent as such a suit is triable by the civil court. (7) 1, thereforee hold that the issues framed on 21.5.75 and as modified by order dt. 17.12.76 by the trial court were properly framed. regarding issue no. 7 it has been brought to my notice that the trial court held that the defendant was liable to pay court fee on his claim for repairs. it is admitted by the learned counsel for the petitioner that the court fee has not been paid. issue no. 7 framed on 21.5.75 also.....
Judgment:

Sultan Singh, J.

(1) This revision u/s 115, Civil Procedure Code by the deft is directed against the order dt. 1.4.81 of the Sub-Judge, 1st class whereby petitioner's application U/O. 14 R. 5 of the code was dismissed.

(2) Briefly stated facts are that respdt. was running a shop of shoes under the name of 'A to Z shoes stores'at Bank street and petitioner was her employee. By means of an agreement dt. 1.9.64, the petitioner is alleged to have become a licensee in the shop under the respondent at Rs. 185.00 per month subject to enhancement if any in terms of the said agreement dated 1.9.64. The respondent filed a suit for recovery of license fee for the period 1.3.71 to 30.11.71, which suit was decreed by Shri S.R. Goel. Additional District Judge, Delhi on 1.3.75. It is admitted by the learned counsel for the parties that the decree of Shri S.R. Goel, Adj was confirmed by this Court.

(3) The respondent filed the present suit for recovery of license fee Rs. 6692.00 including notice charges Rs. 32.00 for the period from 1.12.71 to 31.11.74. The petitioner-defendant raised various pleas in his written statement. The trial Court on 21.5.75 framed the following issues :

'(......)'

(4) The plaintiff-respondent filed an application for re-framing of the said issues praying that issues No. 2 and 5 be deleted and issue No. 3 be recasted. The trial Court by order dated 17.12.76 deleted issues No. 2, 3 and 5, and framed the following additional issue :

'whether the defendant is not liable to pay the amount of Rs. 6660.00 claimed by the plaintiff'.

(5) It is admitted that a revision against this order dt. 17.12.76 was filed and dismissed. The defendant again amended the written statement and took the following plea in para 3 of the preliminary objections 'that the plaintiff is not entitled to any amount of rent as the defendant became the direct tenant of Smt. Savitri Pandit who has sold out the property to Jagjit Singh, as per agreement dt. 23.3.53, between late Shri O.P. Mahindroo and Smt. Savitri Pandit. The plaintiff was only Benamidars on behalf of her husband and when the defendant was inducted, the defendant paid to late Shri O.N. Mahindroo about Rs.16,000.00 to Rs. 18,000.00 in the form of clearing the debts and Rs. 8000.00 in cash in consideration of creating tenancy rights in the premises in dispute ; as such the present suit is not maintainable.' The learned counsel for the defendant-petitioner submitted that an issue, 'whether the defendant was a direct tenant under Smt. Savitri Pandit ?', be framed. The trial Court dismissed the application. Hence this revision.

(6) The learned counsel for the petitioner seriously contends that the issue 'whether the petitioner was a tenant' should be framed. The learned counseal for the respondent on the other hand submits that the question whether the petitioner is a licensee or a tenant does not arise in the present suit for recovery of money. I am inclined to agree with his view. In the previous suit decided on 1.3.75 by Shri S.R. Goel, Adj, an issue was framed 'whether the defendant was a licensee ?' It was also contended on behalf of the defendant that he was a tenant but the Court did not decide whether he was a licensee or a tenant. This judgment was confirmed by this Court. In a suit for recovery of license fee or rent it is not necessary to determine the status of the defendant. It would be necessary to decide the question of the status of a defendant as licensee or as tenant in a suit for possession. It is admitted that the respondent has already filed a suit for possession against the petitioner which is pending and one of the issue is 'whether the petitioner is a tenant in the premises in suit ?' It is thereforee, held that in the present suit it is not necessary to frame the issue regarding the status of the petitioner as a tenant. The learned counsel for the petitioner submits that he has raised the plea in the written statement and thereforee, the issue should be framed. Ordinarily if a plea is raised in a written statement issue is to be framed but it is not necessary that on all pleas issues should be framed. Issues are framed on questions of law and fact to determine if the plaintiff was entitled to the relief claimed or the suit was liable to be dismissed. Admittedly in the judgment dt. 1.3.75 of Shri S.R. Goel, Adj, it has been held that the defendant was liable to pay either license fee or rent at Rs. 185.00 per month, which judgment was confirmed by this Court and thereforee, it would not be necessary in the present suit to decide, whether the petitioner was a tenant or a licensee. By the previous judgment dt. 1.3.75 and para 3 of the written statement reproduced above it stands proved that the petitioner was inducted by the respondent. Whether he was a tenant or a licensee is immaterial in a suit for recovery of money on account of license fee or arrears of rent as such a suit is triable by the Civil Court.

(7) 1, thereforee hold that the issues framed on 21.5.75 and as modified by order dt. 17.12.76 by the trial court were properly framed. Regarding issue No. 7 it has been brought to my notice that the trial court held that the defendant was liable to pay court fee on his claim for repairs. It is admitted by the learned counsel for the petitioner that the court fee has not been paid. Issue No. 7 framed on 21.5.75 also thereforee, does not arise. There is no merit in the revision petition. The same is dismissed with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //