[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original defendant No.1 to quash and set aside the impugned judgment and decree dated 27.04.2001 passed by the learned Civil Judge (Junior Division), Jetpur in Regular Civil Suit No.252 of 1995 as well as the impugned judgment and order dated 21.06.2007 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein – original defendant No.1 and has confirmed the judgment and decree passed by the learned trial Court allowing the counterclaim submitted by respondent No.2 herein – original defendant No.2. [2.0] That respondent No.2 herein – original plaintiff Popatlal Naginbhai Patel instituted Regular Civil Suit No.252 of 1995 in the Court of learned Civil Judge (Junior Division), Jetpur against the appellant – original defendant No.1 and respondent No.2 herein – original defendant No.2 for declaration and permanent injunction to declare that there is a relationship of landlord and tenant between the plaintiff and defendant No.1 and for a permanent injunction restraining the defendants from disturbing their possession. It was the case on behalf of the plaintiff that the original defendant No.1 has given on lease the suit property to the plaintiff at the monthly rent of Rs.300 since 02.12.1995 and since then they are in possession of the suit property as a tenant. It was also the case on behalf of the plaintiff that the President of defendant No.2 Giants Group of Jetpur threatened the plaintiff to hand over the possession as its possession is illegal and the plaintiff was further threatened that if the possession is not handed over they will break open the lock. Therefore, it was alleged by the plaintiff that the defendants in collusion with each other are trying to disturb their possession without following any due procedure and therefore, the original plaintiff instituted the aforesaid suit for the aforesaid reliefs.
[2.1] In the said suit, defendant No.2 filed a counterclaim for declaration that it is in possession of the suit premises as a tenant and that the plaintiff has instituted the suit in collusion with original defendant No.1. It was also the case on behalf of defendant No.2 in the counterclaim that the suit premises is in their possession and therefore, it was requested to allow the counterclaim to declare that defendant No.2 is the tenant of the suit premises and suit premises was in their possession. It was also the case on behalf of defendant No.2 in the counterclaim that the original plaintiff in collusion with original defendant No.1 to destroy the tenancy rights of defendant No.2 overnight illegally took the possession by breaking open the lock and applying another lock and thereafter had obtained the exparte interim order of directing the parties to maintain statusquo and to show their possession have got the panchnama prepared by appointing the Court Commissioner and have created the false evidence and has filed the false suit which is required to be dismissed.
[2.2] That the original defendant No.1 also filed the written statement at Exh.21 as such supporting the case of the plaintiff. That the learned trial Court framed the issues at Exh.29. That the suit filed by the plaintiff came to be dismissed for nonprosecution as despite number of opportunities given, the plaintiff did not appear in the suit and therefore, the suit came to be dismissed by order dated 14.07.1998. Therefore, the learned trial Court was required to decide the counterclaim only. That original defendant No.1 did not lead the evidence. That on behalf of defendant No.2 who submitted the counterclaim, one Nagindas Popatlal, the President of defendant No.6 came to be examined at Exh.376, documentary evidences came to be produced by defendant No.2, on appreciation of evidence the learned trial Court allowed the counterclaim submitted by original defendant No.2 by declaring that defendant No.2 is the tenant of the suit premises pursuant to the rent note dated 21.09.1977 and there is a relationship of landlord and tenant between defendant No.1 and defendant No.2 and that the plaintiff has no right, title or interest in the suit shop. The learned trial Court also held that the defendant No.2 is in possession of the suit premises. However, while passing the final order, the learned trial Court also directed the original defendant No.1 to hand over the possession of the suit property to the defendant No.2 by getting back the possession from the plaintiff and consequently granted the aforesaid mandatory reliefs. The learned trial Court also granted the permanent injunction restraining the plaintiff and defendant No.1 to disturb the possession of defendant No.2, after the possession is handed over / returned to defendant No.2.
[2.3] That being aggrieved and dissatisfied with the impugned judgment and decree dated 27.04.2001 passed by the learned Civil Judge (Junior Division), Jetpur in counterclaim in Regular Civil Suit No.252 of 1995, original defendant No.1 – landlord preferred Regular Civil Appeal No.29 of 2001 before the learned District Court, Rajkot and the learned Appellate Court – learned Presiding Officer, 6th Fast Track Court, Gondal, Camp at Jetpur by impugned judgment and order has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court in counterclaim in Regular Civil Suit No.252 of 1995.
[2.4] Feeling aggrieved and dissatisfied with the impugned judgment and decree/order passed by both the Courts below insofar as allowing the counterclaim in Regular Civil Suit No.252 of 1995, the appellant herein – original defendant No.1 – landlord has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] At the outset it is required to be noted that while admitting the present Second Appeal, the learned Single Judge has framed the following substantial questions of law for determination of the present Second Appeal.
1. Whether the Courts below have materially erred in law in entertaining the counter claim of defendant No.2 filed under Order 8 Rule 6A against the codefendant, after dismissing the suit of the plaintiff for default?
2. Whether the Courts below have committed error of law in misappreciating the evidence on record and in allowing the counter claim of defendant No.2 by directing the defendant No.1 to hand over the possession of the suit property to defendant No.2 after taking over the possession from the plaintiff?
3. Whether the lower Appellate Court has materially erred in law in not raising the point for determination under Order 41 Rule 31 of the Code of Civil Procedure?
4. Whether the Courts below have materially erred in law in holding that the suit was filed by the plaintiff in collusion with defendant No.1?
[4.0] Shri Mrugen Purohit, learned advocate appearing on behalf appellant – original defendant No.1 has vehemently submitted that as such the counterclaim submitted by original defendant No.2 against the codefendant – defendant No.1 was not maintainable and therefore, the learned trial Court had committed an error in law in entertaining the said counterclaim of defendant No.2 filed under Order VIII Rule 6A of the CPC against the codefendant more particularly after the suit filed by the original plaintiff was dismissed for nonprosecution. It is submitted by Shri Purohit, learned advocate appearing on behalf of the appellant that the counterclaim by the defendant against the codefendant would not be maintainable. It is submitted that when the suit filed by the plaintiff came to be dismissed for default and the counterclaim was filed by defendant No.2 against the codefendant – defendant No.1, the learned trial Court has materially erred in entertaining the said counterclaim and allowing the same.
[4.1] It is further submitted by Shri Purohit, learned advocate appearing on behalf of original defendant No.1 that both the Courts below have materially erred in law and on facts in holding that the suit filed by the plaintiff was collusive suit with defendant No.1. It is further submitted by Shri Purohit, learned advocate appearing on behalf of original defendant No.1 that even the learned trial Court has materially erred in allowing the counterclaim of defendant No.2 and by directing defendant No.1 to hand over the possession of the suit property to defendant No.2 after taking over the possession from the plaintiff. It is submitted that as such there are contradictory findings and even the contradictory orders passed by the learned trial Court in the counterclaim. It is submitted that on one hand by passing the operative order the learned trial Court has held that defendant No.2 is in possession of the suit shop and on the other hand the learned trial Court has granted mandatory injunction / order directing defendant No.1 to hand over the possession of the suit shop to defendant No.2 after getting back the possession of the suit shop from the plaintiff. It is further submitted by Shri Purohit, learned advocate appearing on behalf of original defendant No.1 that when a finding was given by the learned trial Court that the plaintiff has obtained the possession of the suit premises in collusion with defendant No.1, in that case, at the most the learned trial Court could have passed the order directing the plaintiff to hand over the possession to defendant No.2. It is, therefore, submitted that such a mandatory order directing defendant No.1 to hand over the possession to defendant No.2 after getting back the possession from the plaintiff cannot be sustained.
[4.2] It is further submitted by Shri Purohit, learned advocate appearing on behalf of original defendant No.1 that the learned Appellate Court has not raised the point for determination as required under Order 41 Rule 31 of the CPC and therefore, the impugned judgment and order passed by the learned Appellate Court deserves to be quashed and set aside.
Making above submissions, it is requested to allow the present Second Appeal.
[5.0] Present Second Appeal is opposed by Shri Bhavesh Trivedi, learned advocate appearing on behalf of original defendant No.2. It is submitted that there are concurrent findings of fact given by both the Courts below that the plaintiff instituted the suit in collusion with defendant No.1 and that the plaintiff obtained the possession illegally of the suit premises from defendant No.2 in collusion with defendant No.1. It is further submitted that there are concurrent findings of fact given by both the Courts below that the defendant No.2 was the tenant of the suit premises pursuant to the rent note dated 21.09.1977. It is submitted that aforesaid findings of fact are on appreciation of evidence and they are not required to be interfered with by this Court in exercise of powers under Section 100 of the CPC. Relying upon the decision of the Hon'ble Supreme Court in the case of Rohit Singh and Ors. vs. State of Bihar (now State of Jharkhan) and Ors. reported in (2006)12 SCC 734, it is submitted that when the plaintiff claimed tenancy in the suit premises in collusion with defendant No.1, such a counterclaim by defendant No.2 claiming that he is in possession of the suit premises would be maintainable.
[5.1] Now, so far as the contention on behalf of the appellant on mandatory injunction / order granted by the learned trial Court directing defendant No.1 to hand over the possession of the suit shop to defendant No.2 after getting back the possession from the plaintiff is concerned, Shri Trivedi, learned advocate appearing on behalf of defendant No.2 has submitted that when it has been found by both the Courts below that the plaintiff took the possession illegally in collusion with defendant No.1, no illegality has been committed by the learned trial Court in granting such a mandatory relief.
Making above submissions and relying upon above decision, it is requested to dismiss the present Second Appeal.
[6.0] Heard learned advocates appearing for respective parties at length and considered the impugned judgment and order passed by both the Courts below as well as the evidence on record from the R & P available from the learned trial Court.
[6.1] At the outset it is required to be noted that the plaintiff instituted the suit against the defendants for a declaration that he is the tenant of the suit shop and that there is a relationship of landlord and tenant between defendant No.1 and the plaintiff and also for permanent injunction restraining the defendants from disturbing its possession except in accordance with law. It is required to be noted that after instituting the suit and after obtaining the order passed below Exh.5 of maintaining the statusquo and after getting the panchnama done by the Court Commissioner, the plaintiff did not contest the suit. The learned trial Court dismissed the suit for default and the original plaintiff has accepted the same. This conduct of the plaintiff is required to be appreciated while considering the counterclaim filed by defendant No.2. It was the specific case on behalf of defendant No.2 in the counterclaim that the plaintiff instituted suit in collusion with defendant No.1 landlord and overnight took the possession of the suit shop after breaking open the lock and applied his lock and thereafter instituted the suit for a declaration in collusion with defendant No.1 and obtained the exparte order of statusquo and thereafter got the panchnama prepared by the Court Commissioner to create the evidence to show that he is in possession of the suit premises. The original defendant No.2 also filed a counterclaim for a declaration to declare that defendant No.2 is the tenant of the suit premises and there is a relationship of landlord and tenant between defendant No.1 and defendant No.2 and also prayed for mandatory injunction for getting back the possession of the suit shop. That the learned trial Court considered the counterclaim as a suit as the suit came to be dismissed for nonprosecution and on appreciation of evidence held that defendant No.2 is the tenant of the suit premises on the basis of the rent note dated 21.09.1977 and that there is a relationship of landlord and tenant between defendant No.1 and defendant No.2. The learned trial Court has also given the finding that the plaintiff has illegally obtained / got possession of the suit shop in collusion with defendant No.1.
[6.2] The first question which is required to be decided by this Court is whether such a counterclaim by defendant No.2 against the defendant – defendant No.1 would be maintainable under Order VIII Rule 6A of the CPC? more particularly, when the suit filed by the plaintiff came to be dismissed for nonprosecution. The contention on behalf of the appellant herein – original defendant No.1 that a counterclaim by defendant against the codefendant would not be maintainable when the suit filed by the plaintiff came to be dismissed seems to be attractive but has no substance. It is required to be noted that as such in the present case there was a collusive suit filed by the plaintiff and defendant No.1 and therefore, as such it can be said that the relief sought in the counterclaim would be against defendant No.1 as well as the plaintiff. Incidentally defendant No.2 has sought relief against defendant No.1 for a declaration that defendant No.2 is the tenant of the suit premises. The aforesaid relief is required to be appreciated visavis the relief sought by the plaintiff in the suit for declaration that plaintiff is the tenant of the suit premises and that there is a relationship of landlord and tenant between defendant No.1 and the plaintiff. The contention on behalf of the appellant that a counterclaim by the defendant against the co defendant would not be maintainable cannot be accepted in the facts and circumstances of the present case. In the facts and circumstances of the case narrated herein above and as stated herein above, as such the counterclaim was against the plaintiff for a declaration that the defendant No.2 is the tenant of the suit premises and such a relief was against the claim made by the plaintiff that the plaintiff is the tenant of the suit premises and therefore, incidentally defendant No.2 sought the relief against the defendant No.1 also for a declaration that there is a relationship of landlord and tenant between defendant No.1 and defendant No.2. Therefore, as such it cannot be said that counterclaim filed by defendant No.2 was directed solely against the codefendant. Under the circumstances, the contention on behalf of the appellant – original defendant No.1 that the counterclaim ought not to have been entertained by the learned trial Court has no substance and cannot be accepted.
[6.3] Now, so far as the second contention on behalf of the appellant that learned Appellate Court has not framed the point for determination while deciding the Appeal and therefore, the impugned judgment and order passed by the learned Appellate Court is required to be quashed and set aside is concerned, considering the entire judgment and order passed by the learned Appellate Court, it appears that learned Appellate Court has considered and dealt with all the issues in the Appeal while dismissing the Appeal. Under the circumstances, when all the issues are dealt with and decided by the learned Appellate Court, merely because separate points for determining was not framed / raised, the impugned judgment and order passed by the learned Appellate Court is not required to be quashed and set aside on that ground alone. As held by the Hon'ble Supreme Court in the case of G. Amalorpavam and Ors. vs. R.C. Diocese of Madurai and Ors. reported in (2006)3 SCC 224, whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 of the CPC has to be determined on the nature of judgment delivered in each case. It is further observed that noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second Appellate Court is in position to ascertain the findings of the lower Appellate Court. It is further observed by the Hon'ble Supreme Court in the said decision that if it is possible to make out from the judgment that there is substantial compliance with the said requirements and the justice is not thereby suffered, that would be sufficient. It is observed that when the learned Appellate Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and his findings are supported by reasons even though the point has not been framed by the Appellate Court and there is substantial compliance with the provisions of Order 41 Rule 31 of the CPC, the judgment is not in any manner vitiated by absence of a point of determination. Under the circumstances, on the aforesaid ground the impugned judgment passed by the learned Appellate Court is not required to be quashed and set aside.
[6.4] Now, so far as the third and the last contention made on behalf of the appellant that the learned trial Court has materially erred in directing defendant No.1 to hand over the possession of the suit premises to original defendant No.2 after getting back the possession from the plaintiff and that contention on behalf of the appellant that there are contradictory findings/order in the operative portion of the judgment and decree passed by the learned trial Court to the effect that on one hand the learned trial Court has declared the possession of the suit shop to be of Giants Group of Jetpur and on the other hand the learned trial Court has directed the appellant herein – original defendant No.1 to hand over the possession of the suit premises to original defendant No.2 of getting back the possession from the original plaintiff is concerned, the aforesaid seems to be attractive and on reading the operative portion of the judgment and decree passed by the learned trial Court, however, the operative portion of the judgment and decree passed by the learned trial Court is required to be considered as a whole and considering the finding given by the learned trial Court. On fair reading of the entire judgment it appears that what is meant by the learned trial Court is that original defendant No.2 – Giants Group of Jetpur was in possession of the disputed suit property and that the plaintiff and defendant No.1 in collusion with each other and in keeping defendant No.2 – Giants Group of Jetpur in dark have snatched / taken away the possession from defendant No.2. From the entire judgment it appears that the learned trial Court has not held that at the time of filing of the suit, defendant No.2 was in possession of the suit premises. Under the circumstances, there are no contradictory findings/order passed by the learned trial Court while passing the operative portion of the order. Under the circumstances and when it has been found that the original defendant No.2 was dispossessed by the plaintiff and original defendant No.1 in collusion and original defendant No.2 was dispossessed illegally and when such a mandatory order has been granted, no illegal has been committed by the learned trial Court, which calls for interference of this Court in exercise of powers under Section 100 of the CPC.
[6.5] Now, so far as the contention on behalf of the appellant – original defendant No.1 that both the Courts below have materially erred in declaring defendant No.2 as tenant of the suit premises is concerned, there are concurrent findings of fact given by both the Courts below on appreciation of evidence holding defendant No.2 to be the tenant of the suit premises on the basis of the rent note dated 21.09.1977 and the said findings are on appreciation of evidence which are not required to be interfered by this Court in exercise of powers under Section 100 of the CPC.
[7.0] In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
Civil Application No.2764 of 2008 In view of disposal of main Second Appeal, no order in Civil Application No.2764 of 2008 and the same also stands disposed of.
Sd/ (M.R. Shah, J.) menon