JUDGMENT
Bashir A. Kirmani, J.
1. Claiming to be owners of a two storied building at Batamaloo, Srinagar with shops in ground floor, plaintiffs allege that defendant No. 2 were in occupation of first floor after inducing defendants 3 and 4 to lease it out to them on promise of rent at prevalent market rate and advance of Rs. 3.00 lacs who accordingly signed the lease agreement in their favour without knowing contents thereof and acknowledged having received an amount of Rs. 3.00 lacs about which said defendants came to know later when they received banks reply to the note issued for vacating the premises or else paying the rent at prevalent rates wherein they had requested for execution of a formal rent deed and asked for more accommodation. On further enquiry said defendants were informed that the rent payable for the premises was being adjusted by the Bank against loan of Rs. 3.00 lacs advanced in their favour where after plaintiffs issued a notice to the Bank on 20.6.2000 informing them that defendants 3 and 4 respectively, the wife of first plaintiff and mother of plaintiffs 2 and 3, not being owners of the premises were not competent to handover the possession to the Bank or execute any document regarding the same and impressed upon them that in case of continuing with occupation the Bank was bound to execute a formal lease deed and pay penal rent of Rs. 5,000/- for what they termed a legal occupation of the suit property since January, 1996 and vacate the premises within fifteen days where after they would be obliged to pay rent at the rate of Rs. 10,000/- to which the defendant/Bank did not show any response. It was further pleaded that even on their own showing defendants had to pay a monthly rent of Rs. 8600/- as against Rs. 8250/- admitted by them according to which till February, 1999 the rent chargeable would be Rs. 396000/- from which the amount of Rs. 3.00 lacs received by defendants 3 and 4 would be debitable leaving the defendant/Bank with a liability to pay Rs. 96,000/- of rent till February, 1999 and, thereafter the daily rent of Rs. 5,000/- as impressed upon them vide notice purporting to have been issued on 20.6.2000. On basis of pleading summarized above the plaintiffs sought a decree of mandatory injunction upon defendants/Bank to vacate the premises and pay rent at the rate as claimed.
In their written statement the defendant/Bank besides taking objections to maintainability of the suit on various grounds inter alia pleaded that plaintiffs had executed power of attorney dated: 17.7.1995/11.6.1993 in favour of defendants 3 and 4 registered by sub-registrar, Srinagar on 17.7.1995 and 21.6.1995 respectively empowering them to lease out the premises under reference and execute relevant document whereupon they approached the Bank for a term loan facility of Rs. 3.00 lacs for construction of the building to be leased out to defendant/Bank which was acceded to by the bank but after receipt of the loan they housed the construction and first floor was occupied by the Bank under lease agreement dated: 28.9.1995 initially for a period of five years with effect from the date of occupation of premises. With the said defendants promised for providing further space on second floor which was never constructed instead the present litigation was initiated. On 9.10.2002 the trial court framed following issues for trial:
1. Whether the plaintiffs have a right to file the suit? OPP
2. Whether the defendant No. 2 is in possession of 1st. Floor of the building against the consent of the plaintiffs and defendants 3 and 4, if so how and what is its effect? OPP
3. Whether the defendants 3 and 4 were not authorized to lease out the building to the defendant No. 2? OPP
4. Whether the contents of the lease agreement in favour of the lessee-bank were not known to defendants 3 and 4 and Rs. 3.00 lacs were received by defendants 3 and 4 as advance rent, if so, how and what is its effect? OPP
5. Whether the defendant No. 2 is in possession of 1st. Floor as licencee and is liable to pay he rent according to desire of the plaintiff? OPP
6. Whether the rent has been fixed amicably by the parties? OPD-2
7. Is issue No. 6 is proved in negative, whether defendant No. 2 is liable to pay rent of Rs. 5000/- per day from 1/96 to 20.6.00 and Rs. 10,000/- per day after service of notice i.e. from 6.9.2000? OPP
8. Whether Rs. 3.00 lac paid to defendants 3 and 4 if presumed term loan, if so whether the rent was fixed Rs. 4/per sq. ft, this way presumed amount of advance is liquidated? OPP
9. Whether the so called lease agreement has expired on 1/2000, so defendant No. 2 was bound to hand over the possession to the plaintiff? OPP
10. Whether the plaintiffs were receiving due rental through their attorney defendants 3 and 4? OPD-2
11. Whether the plaintiff require the premises for their own purpose, if so what is its effect? OPP
12. Whether the defendant No. 2 has a right to occupy the premises for a period of 15 years as per lease agreement? OPD-2
13. Whether the plaintiff has no cause of action to file the present suit? OPD-2
14. Relief and after trial dismissed the suit vide judgment and decree dated: 30.10.2004.
2. Aggrieved the plaintiff/appellants have instituted this appeal to challenge the aforementioned decree and judgment the ground that a trial court failed to properly appreciate the evidence while considering various issues of fact and did not apply mind to the legal position governing the subject resulting in wrong disposal of the case to the prejudice of appellants which renders the impugned judgment/decree liable to be over set. Respondents have neither filed any rejoinder on their behalf nor entered appearance so much so that none has appeared for them even to argue the matter. Perusal of interim orders and noting of registry reveals that while one Sh. Mohammad Younis, Advocate had appeared for respondents 3 and 4. Mr. B.A. Bhat reportedly entered appearance for respondents 1 and 2, the Bank and collected copies etc., on 6.6.2005 where after as per inter order dated: 9.12.2005 one Mr. Dar has appeared for him by proxy for the said respondents where after they have continuously absented. On 8.8.2006, however, while Sh. Younis appeared for respondents 3 and 4, appellants counsel informed the court that respondents had already vacated the premises under reference and expressed his intention to file supplementary affidavit to update his claim which, however, does not appear to have been filed despite opportunity allowed for the same. During course of his contentions, however, the appellants counsel while reiterating contents of appeal, somebody on behalf of respondents has submitted photo copies of certain reported judgments to contend that appellant/plaintiffs were stopped from instituting the suit etc. which if necessary would be discussed at some later stage.
3. I have heard learned Counsel and considered the matter. In over all consideration of the matter, I feel that points falling for determination can be summarized as under:
(a) What is the status of respondents 3 and 4 to execute the document dated 17.7.1995 and the resultant implications thereof.
(b) In view of findings on foregoing point what would be the status of defendants/respondents/Bank in so far as their possession under reference is concerned and the consequent liability;
(c) Whether plaintiff suffered estoppel or any other legal disability to institute the suit against defendants/respondents.
Accordingly I would proceed to consider the aforesaid points:
(i) In so far as first point formulated is concerned, it reflects the substance of issues No. 2 to 4 and 12, Point (b) of issues No. 5 to 10 and Point (c) that of issues 1 and 13. Out of all Issue No. 12 which pertains to personal necessity of plaintiff/appellants, becomes redundant in view of the statement of their counsel that the premises have already been vacated by defendant/re-spondent-Bank.
(ii) As would be evident from respective pleadings of parties the theme of controversy reflected by point (a) is while plaintiff/appellants maintain that respondent/defendants 3 and 4 had no right/title to execute any document in favour of first two respondents much less to handover the premises to them defendants 1 and 2 plead that both ladies respectively the wife of first and mother of 2nd and 3rd were duly authorized by them to execute the requisite deeds in favour of defendant/Bank whereupon they applied for and received the term loan of Rs. 3.00 lacs invested by them in construction of the building where the premises under reference is situated which was later handed over to them which rendering their possession quite lawful. The substance of point (b) emanates from the factual conflict pleaded by parties regarding payment/receipts etc., of money by defendant/respondents 3 and 4 from defendant/respondents 1 and 2, the nature of transactions made, documents executed and the resultant respective liability of parties towards each other. The point (c) simply depicts the objection of respondents/defendants 1 and 2 to the locus-standi of plaintiffs/appellants and accrual of a right/cause to them for maintaining the suit. For appreciation of all these aspects the first that requires to be considered are the documents relied upon by defendants/Bank to repel the suit strangely, however, the trial court file contains only photo-copies of the documents, deeds, notices and communications relied upon by parties respectively, totally unattested and unverified not even certified as being correct by concerned counsel or having been tallied with the originals which makes it quite difficult to assess the disputed questions of fact and consequently thereof law involved in the matter. It is totally surprising as to on what materials the trial court relied while returning finding upon issues of fact and law framed in the matter. The only document in original on the trial court file is the four page statement of account shown to be pertaining to account No. 162 in the name of Nahida Akhtar wife of Mohammad Amin Khan and Yasmeena Akhtar wife of Rafi Ahmad, the defendants 3 and 4. The statement is hand written on an inland letter form without anything to show as to whom it was addressed and what was the date of its preparation.
4. In view of the total non-availability of original documents on record it would be appropriate to transmit the case back to trial court for de novo trial after securing the original documents under law.
5. Accordingly the impugned–judgment/decree is set aside and the matter remanded to the trial court for fresh ‘ trial under law, to be concluded in any case w thin six months after proceedings recommence. The parties through their counsel are directed to appear before the trial court on 26.12.2007. Records of the case be sent down along with a copy of this judgment.
6. Matter stands disposed of along with all connected CMPs.
