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Kanji Hirjibhai Gondalia Vs. Jivaraj Dharamshi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 574 of 1973
Judge
Reported inAIR1976Guj152; (1975)1GLR469
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2)
AppellantKanji Hirjibhai Gondalia
RespondentJivaraj Dharamshi
Appellant Advocate H.K. Gandhi, Adv.
Respondent Advocate Shyam H. Bhatt, Adv.
Cases ReferredRasim v. Abubaker Tarmahmed
Excerpt:
.....152 of 19,70 in the court of the joint civil judge junior division, rajkot for possession of the suit premises as well arrrears of rent. according to the petitioner the appeal is likely to fail on the technical ground of its maintainability in absence of a decree. the decision of the learned trial judge on the point is clearly a final adjudication between the parties in respect of the suit for possession. the order of the trial judge is clearly indicative of the fact that he has finally determined the issue relating to possession and there is formal expression of the said adjudication, it is true that the learned trial judge has taken the view that only finding on the issue has been given by him and he has passed only a formal order and, therefore, no decree need be drawn as there had..........hathikhana road, rajkot belong to rajkot halari vanand community. the opponent is a tenant of the suit premises. kanji hirjibhai gondaliya, as a manager of halari vanand community filed civil suit no. 152 of 19,70 in the court of the joint civil judge junior division, rajkot for possession of the suit premises as well arrrears of rent. the suit for possession was filed on the ground that the tenant was in arrears of rent. the tenant contested the suit and raised a plea that the notice for eviction was not valid. the learned trial judge raised issue no. 1 which is as under:'whether the suit notice is valid and legal ?'the learned trial judge tried this tssue as preliminary issue since in his opinion a part of the suit could be disposed of by a finding on that issue. the learned trial.....
Judgment:
ORDER

1. This revision application raises a short but interesting question. The pertinent facts are that the suit residential premises situated on Hathikhana Road, Rajkot belong to Rajkot Halari Vanand Community. The opponent is a tenant of the suit premises. Kanji Hirjibhai Gondaliya, as a manager of Halari Vanand Community filed Civil Suit No. 152 of 19,70 in the Court of the Joint Civil Judge Junior Division, Rajkot for possession of the suit premises as well arrrears of rent. The suit for possession was filed on the ground that the tenant was in arrears of rent. The tenant contested the suit and raised a plea that the notice for eviction was not valid. The learned trial Judge raised issue No. 1 which is as under:

'Whether the suit notice is valid and legal ?'

The learned trial Judge tried this tssue as preliminary issue since in his opinion a part of the suit could be disposed of by a finding on that issue. The learned trial Judge came to the conclusion that the notice of eviction was not legal. The learned Judge has observed in his judgment that before passing the final order he may clarify that the suit for possession could not proceed because of the defective notice, but there could be no hitch to the plaintiff's claim for rent. The learned trial Judge passed the following order:

'The suit notice (Exh. 4/1) is held to be not valid and legal and as such, the suit for recovery of possession of the suit premises is held incompetent and unmaintainable. The suit is, therefore, ordered to proceed only in respect of the claim for the monetary reliefs.'

Being aggrieved by the aforesaid judgment and order the petitioner has preferred Appeal No. 88 of 1972 in the District Court, Rajkot. However in that appeal a certified copy of decree of the Court has not been filed because the decree has not been drawn up in pursuance of the aforesaid judgment and order of the trial Court. According to the petitioner the appeal is likely to fail on the technical ground of its maintainability in absence of a decree. The petitioner, therefore, made an application to the trial Court to draw up a decree in pursuance of the judgment given by the learned trial Judge on the preliminary issue. The learned trial Judge by his order dated January 19, 1973, dismissed the application for drawing up a decree observing that the suit was not yet finally decided and only point so far decided was that the plaintiff's suit for possession was not maintainable in law and the suit for other reliefs was yet to proceed on merits. It is this order of the learned trial Judge which is sought to be challenged in this revision application.

2. Now the question is whether the order of the Court on the preliminary issue amounts to a decree, Section 2(2) of the Civil Procedure Code defines what a decree is. According to the said definition a decree is a formal expresion of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. Now the learned trial Judge has held that the notice of eviction was defective and the plaintiff was not entitled to a relief for recovery of possession of the suit premises because of the defective notice. The learned Judge has held that the suit for eviction was not competent and maintainable. He further directed that the suit should proceed only with respect to the claim for monetary relief. Now so far the relief for possession is concerned there is a substantive decision or determination. The decision of the learned trial Judge on the point is clearly a final adjudication between the parties in respect of the suit for possession. The order of the learned trial Judge conclusively determines the rights of the parties on the question of eviction. The determination for the relief of possession is final and conclusive so far as the trial Court is concerned. The question whether the adjudication is a decree or not has to be determined with reference to the definition of decree given in Section 2(2) of the Civil Procedure Code. The trial Court has undoubtedly adjudicated on the substantive rights of the parties with regard to the controversy for recovery of possession of the suit premises. The order of the trial Judge is clearly indicative of the fact that he has finally determined the issue relating to possession and there is formal expression of the said adjudication, It is true that the learned trial Judge has taken the view that only finding on the issue has been given by him and he has passed only a formal order and, therefore, no decree need be drawn as there had been no final disposal of the suit. There is obvious difference between a simple finding and a finding which terminates the suit. To determine the exact nature and extent of a finding reference to the definition of decree given in S. 2(2) of the Civil Procedure Code is essential. Merely because the trial Court heads his finding as an order is not determinative of its nature nor his conclusion to that effect is conclusive. The question whether an order passed by a Court amounts to a decree or not has to be determined with reference to the definition of decree given in Section 2(2) of the Civil Procedure Code and the test to be applied is whether there is a formal expression of adjudication, which as regards the Court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit. In the aforesaid view of mine I am supported by the decisions of the Madras High Court in V. Adinarayan Chetti v. Kopparam Narasinha Chetti, ILR 54 Mad 337 : (AIR 1931 Mad 471) and Kasi v. Rm. A. R. M. V. Ramanathan Chettiar (1947) 2, Mad LJ 523. Whether an order passed by a- Court is a decree or not cannot depend on the drawing up of a decree by the Court as formal drawing up of a decree is the duty of the Court; vide Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1%1 SC 832 and Parashuram Rajaram Tiwari v. Hirabai Rajaram Tiwari : AIR1957Bom59 . If a Court does not draw up a decree it cannot be said that the order of the Court by which rights of the parties are finally adjudicated upon is not a decree. There can be more than one final decree in a suit where two or more causes of action are joined together. There is no provision in the Civil Procedure Code which prevents the Court from passing two final decrees, if the circumstances of the case so require, vide Fatmabai W/o Rasim v. Abubaker Tarmahmed AIR 1946 Sind 58. The present suit is a composite suit being a suit for possession and a suit for arrears of rent-; and the issue between the parties with regard to possession of the suit premises is finally decided by the trial Court. Thus there is final adjudication on the issue of possession and this determination amounts to a decree within the meaning of Section 2(2) of the Civil Procedure Code. The impugned order of the learned trial Judge refusing to draw up a decree, therefore, is erroneous and the same is set aside. It is directed that the trial Court should draw up a decree in pursuance of the judgment and decision passed by it with respect to the claim for possession of the suit premises.

3. The result is the rule issued in this revision application is made absolute with no order as to costs.

4. Application allowed.


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