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DIVYAA (STUDENT)     01 August 2012

Whether doctrine of 'admission' u/o12r6 cpc ultravires art14

Dear Sir,

 

We  had filed an suit for injunction against the landlord whereby restraining him from the forceful eviction of the tenant (my uncle and his family) and got the injunction order .

 

During the pendency of the suit the landlord has been asked by the Court to file the written statement which he had not filed deliberately  instead he had given in writing that he would not evacuate the tenant by using the force and would follow the legal procedure. That suit was decided accordingly.

 

At the same time during the pendency of the injunction suit filed by us, the landlord has issued an notice purportedly u/s 106 of T.P.ACT asking the tenant to vacate or face legal consequences, that notice was replied accordingly. The landlord filed a separate suit for ejection and recovery of possession in another court (instead of filing the counter claim in the same court where we have filed the suit).

 

We have filed our written statement.

The Ld. Civil Judge has been appointed as a new recruit .The Ld.Civil Judge passed a decree for possession u/O 12 RULE 6 of CPC citing the reason and ground that via the written statement it is proved that –

 

  1. there is a relationship of landlord and tenant between the parties.
  2. the rent of the property is Rs.7500/- which is greater than Rs.3500/- hence no binding of Rent control.
  3. the notice u/s 106 of T.P.ACT has been served and even summons has been served of which resultant is the written statement.
  4. As per the admissions of the above facts a decree for possession could be passed .

 

My question and point of laws are :-

 

  1. Whether the landlord could file the suit for ejection without annexing any document of his ownership and rent agreements in original ?

 

  1. Whether the Civil judge was right in taking cognizance of the alleged suit filed by the landlord which ought to have been barred u/s 10 and 11 of CPC,1908 ,because the alleged suit has been filed during the pendency of the former suit filed by the tenant and  if the landlord had to file the suit for eviction that could have been filed as an counter claim via written statement in the former suit where he was a respondent ?

 

  1. Whether the court could take cognizance on the mere plain photocopy of any rent agreement(which is only notarized and unregistered  and on Rs.10/- stamp paper) which could not be termed as an evidence as per section 61,62 and 63 of Evidence Act and more importantly an agreement could be proved by its presence in original u/s 91 of Evidence Act.

 

 

  1. Whether the said Decree passed by the court is legally recognizable which is passed u/O 12 R 6 CPC and before any arguments or examination of witnesses and further the same has not been even communicated either to the tenant or his pleader ?

 

  1. Whether the said order of passing the decree U/O 12 RULE 6 CPC is ultra vires to the article 14 of the Constitution of India or not ?

 

 

  1. Whether the Civil Judge should not ask the landlord to produce the original rent agreements of the past years alongwith the recent one in original to substantiate his claim ,as the tenancy has been 8 years old and the unregistered rent agreements have been made deliberately for 11 months ?

 

As the order of decree for possession was passed on 6th June 2012 and the time to file appeal is lost, what legal remedy does the Tenant have to challenge that Decree and whether the tenant should file any application for the review of the Order to the same court.

 

Pls. guide Sir. As the matter is listed for 3rd AUG 2012.

 

I would be highly obliged by your valuable guidance and support.

 

Regards,

 

DIVYAA

 

 

 



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