Heard Mr. Anurag Shukla,learned counsel for the petitioners and Jaideep Narain Mathur, learned Senior Advocate assisted by Mr. Devendra Mohan Shukla, learned counsel for opposite parties.
The petitioners have challenged the order dated 26th October, 2004 passed by the Civil Judge (Junior Division) Sitapur in Original Suit No. 705 of 1986 as also the order dated 4 th March, 2006 passed by the Additional District Judge, Sitapur in Civil Revision No. 107 of 2004 .
This court by means of order dated 29th August, 2002 while deciding the Second Appeal No. 424 of 1942 framed issue no. 5 which is reproduced here-in-under:-
"Whether the relationship of Landlord and tenant exists between the parties as alleged by the defendants-appellants?" This Court passed the following order:-
"The second appeal is hereby allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the learned trial court for deciding the suit a fresh in view of the observation made above. No order as to costs."
By means of order dated 26th October, 2004 the trial court has asked the petitioners to adduce the evidence on issue no. 5 to establish the existence of relationship of land-lord and tenant as the burden of proof lies upon them.
Learned counsel for the petitioners submits that once this court remitted the matter for deciding afresh, the petitioners have right to adduce the evidence on each and every issue; whereas for the purpose of adducing the evidence the trial court has confined the petitioners only to issue no. 5 which defeats the purpose of order passed by this court, thus it suffers from error and deserves to be quashed.
On the other hand, Mr. Jaideep Narain Mathur, learned Senior Advocate submitted that the case has been remanded to the trial court for decision afresh, in view of the observations made in the order. He further submits that the arguments of the petitioners-appellants in the second appeal was that a good number of documents were filed before the learned trial court. The same were not considered by the court below which were vital evidence and the same could have led to a different conclusion and its omission by the courts below is illegal and perverse and the court below has further erred in relying an inadmissible evidence had those been omitted would have led to a different conclusion. This court also took note of the arguments raised by the petitioner that the court below has erred in not framing any issue as to the right of tenancy as alleged in question 5 of the substantial questions of law and observed that perusal of the judgments of both the courts below shows that no issue was framed as to the right of tenancy pleaded by the defendants-appellants and in absence of an issue regarding the right of tenancy pleaded by the defendants-appellants, the judgments of the courts below have caused prejudice to the case of the defendants-appellants. This court further observed that under the circumstances, I have no option but to remand the case to the learned trial court for deciding it afresh along with newly framed issue. Since the petitioners are tenant, the burden of proof to establish the existence of relationship of land-lord and tenant lies upon them, they have rightly been called upon by the trial court to adduce evidence on the newly framed issue no.5. Upon perusal of the aforesaid findings, I find that some of the relevant documents placed, which were vital evidence, could not be considered by the courts below and further on the existence of relationship of land-lord and tenant no issue was framed, this Court remanded the matter for the said purpose. Thus, under the strength of the order passed by this Court in the aforesaid Second Appeal the documents placed before the court below are to be considered and the parties have to led evidence on issue no. 5 (newly framed issue by this court) accordingly the court below has to proceed to decide the case afresh .Since the burden of proof of existence of relationship of land-lord and tenant being tenant lies upon the petitioners who have been called upon to prove so, I do not find error in the order impugned.
The writ petition is dismissed.
Order Date :- 5.1.2010 GSY