Surya Sikander and Ors. Vs. Netha Spinning Mills and Ors.
EmailAppeal: Civil Appeal Nos. 8178-8179 of 1994
Petitioner: Surya Sikander and Ors.
Respondent: Netha Spinning Mills and Ors.
Apeal: Civil Appeal Nos. 8178-8179 of 1994
Judges: V.N. Khare & Ashok Bhan, JJ.
Date of Judgment: Mar 09, 2002
Head Note:
CIVIL LAW/PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Order 6 rule 1 and order 6 rule 17 – Suit by plaintiff for injunction – Suit by defendant for title on basis of sale by official liquidator – Plaintiff also a vendee under sale agreement by inamdar – Said inamdar leasing out land to a mill which went into liquidation and land thus sold to defendant – Plea that lessee did not pay rent and forfeited the right as well as plea, absence of prior permission to transfer to be taken by liquidator, not raised in written statement by plaintiff – No issue framed – Amendment sought in Supreme Court as such application not decided by High Court. Held that fresh pleas cannot be allowed. On facts and circumstances, amendment declined. Appeals by plaintiff dismissed. (Paras 2, 3)
JUDGEMENT:
ORDER
1. One Vasir Ali was the inamdar of the land in dispute. On 20th April, 1943, Vasir Ali executed a permanent lease deed in respect of the said land in favour of the Hyderabad Deccan Weaving & Spinning Mills Limited. The said lease deed inter alia stipulated that the lessee shall be entitled to construct houses on the leased land, that, the lessee shall have right to transfer the land and the constructions and that, the lessee would pay certain amount of rent to the inamdar annually. It appears that the aforesaid mill went into liquidation and the liquidator appointed by the court sold the said land in favour of Netha Spinning Mills – respondent no. 1 herein. Subsequently, the Netha Spinning Mills became a sick industry and, therefore, under the provisions of the Sick Textile Undertakings Nationalisation Act, 1974 it was taken over by the central government. Consequently, the central government became the owner of the land. It is alleged that on 17th March, 1968 the original inamdar executed an agreement to sell the said land in favour of the appellants herein. It is on that basis the appellants herein brought a suit for perpetual injunction against defendant-respondent no. 1 herein in the year 1980. The said suit was numbered as suit no. 2491 of 1980 and subsequently, renumbered as 579 of 1982. Simultaneously, the respondent mill also filed a suit for declaration of title and the said suit was numbered as 956 of 1980. Both the suits were consolidated and heard together by the trial court. The trial court decreed the suit filed by the appellants herein. However, the suit filed by the respondent was dismissed. Aggrieved, the respondent preferred appeals before the High Court. The High Court allowed the appeals and set aside the judgment and decree of the trial court. Consequently, the suit filed by the appellant stood dismissed and the suit filed by the respondent herein was decreed. It is against the said judgment of the High Court, the appellants are in appeal before us.
2. Learned counsel for the appellants urged that since the lessee did not pay the annual rent/tax to the lessor, the lessee had forfeited the right in the land. Consequently, the said land reverted to the original inamdar and, subsequently, to his successors. On perusal of the record we find that no such issue was framed by the High Court and no evidence was led in this regard. Further, this plea was also not urged before the trial court. Moreover, we do not find any default clause in the lease deed. In case the lessee had defaulted
in payment of rent/tax, it was open to
the original lessor to recover the said rent/tax.
3. It was then urged that no prior permission has been obtained by the liquidator for transfer of the land under section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, and, therefore, the transfer of land by the liquidator in favour of the respondent-mill was void and illegal. This point was also neither urged before the trial court nor before the High Court. Learned counsel urged that at the High Court stage, the appellants herein filed an application for permission to amend the written statement, but no order was passed by the High Court and, therefore, we may permit the amendment of the written statement. In this case, what we find is that the suit was filed in the year 1980 and in the written statement neither any such plea was taken nor any issue in this regard was framed. It is too late now to permit the amendment of the written statement. We, therefore, decline to permit the appellants to amend the written statement.
4. No other point was pressed.
5. For the aforesaid reason, we do not find any merit in the appeals. They fail and are, accordingly, dismissed. There shall be no order as to costs.
1. One Vasir Ali was the inamdar of the land in dispute. On 20th April, 1943, Vasir Ali executed a permanent lease deed in respect of the said land in favour of the Hyderabad Deccan Weaving & Spinning Mills Limited. The said lease deed inter alia stipulated that the lessee shall be entitled to construct houses on the leased land, that, the lessee shall have right to transfer the land and the constructions and that, the lessee would pay certain amount of rent to the inamdar annually. It appears that the aforesaid mill went into liquidation and the liquidator appointed by the court sold the said land in favour of Netha Spinning Mills – respondent no. 1 herein. Subsequently, the Netha Spinning Mills became a sick industry and, therefore, under the provisions of the Sick Textile Undertakings Nationalisation Act, 1974 it was taken over by the central government. Consequently, the central government became the owner of the land. It is alleged that on 17th March, 1968 the original inamdar executed an agreement to sell the said land in favour of the appellants herein. It is on that basis the appellants herein brought a suit for perpetual injunction against defendant-respondent no. 1 herein in the year 1980. The said suit was numbered as suit no. 2491 of 1980 and subsequently, renumbered as 579 of 1982. Simultaneously, the respondent mill also filed a suit for declaration of title and the said suit was numbered as 956 of 1980. Both the suits were consolidated and heard together by the trial court. The trial court decreed the suit filed by the appellants herein. However, the suit filed by the respondent was dismissed. Aggrieved, the respondent preferred appeals before the High Court. The High Court allowed the appeals and set aside the judgment and decree of the trial court. Consequently, the suit filed by the appellant stood dismissed and the suit filed by the respondent herein was decreed. It is against the said judgment of the High Court, the appellants are in appeal before us.
2. Learned counsel for the appellants urged that since the lessee did not pay the annual rent/tax to the lessor, the lessee had forfeited the right in the land. Consequently, the said land reverted to the original inamdar and, subsequently, to his successors. On perusal of the record we find that no such issue was framed by the High Court and no evidence was led in this regard. Further, this plea was also not urged before the trial court. Moreover, we do not find any default clause in the lease deed. In case the lessee had defaulted
in payment of rent/tax, it was open to
the original lessor to recover the said rent/tax.
3. It was then urged that no prior permission has been obtained by the liquidator for transfer of the land under section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950, and, therefore, the transfer of land by the liquidator in favour of the respondent-mill was void and illegal. This point was also neither urged before the trial court nor before the High Court. Learned counsel urged that at the High Court stage, the appellants herein filed an application for permission to amend the written statement, but no order was passed by the High Court and, therefore, we may permit the amendment of the written statement. In this case, what we find is that the suit was filed in the year 1980 and in the written statement neither any such plea was taken nor any issue in this regard was framed. It is too late now to permit the amendment of the written statement. We, therefore, decline to permit the appellants to amend the written statement.
4. No other point was pressed.
5. For the aforesaid reason, we do not find any merit in the appeals. They fail and are, accordingly, dismissed. There shall be no order as to costs.
