High Court of Punjab and Haryana, Chandigarh
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Anil Kumar v. Smt. Kailasho Devi - RSA-4808-2004  RD-P&H 1407 (3 March 2006)
RSA 4808 of 2004
Date of decision 8.3.2006
Anil Kumar .. appellant
Smt. Kailasho Devi .. Respondent
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
PRESENT: Mr.AS Virk , Advocate for the appellant Mr.Gurinder Pal Singh, Advocate for the respondent M.M.Kumar, J.
This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below. During the course of arguments, learned counsel has confined his challenge only to the grant of relief concerning mense profit. It is appropriate to mention that both the Courts below have directed the defendant-appellant to pay the arrears of rent during the pendency of the suit i.e. from September, 1996 till he vacates the shop @ Rs.2000/- p.m.
It has been stressed that in the absence of prayer for grant of mense profit no relief could be granted by the Courts below. The afore-mentioned argument could not be raised in the second appeal because there is nothing in the judgements of both the Courts below to show that such an issue or argument was raised in either of the two Courts. The application for review of the judgement and decree dated 22.1.2002 passed by the ld.
Additional District Judge, Kurukshetra has also been dismissed by holding that it was belated. It has further been held that there was no error apparent on the face of the record RSA 4808 of 2004 .2.
because the plea concerning grant of mense profit may not have been raised by the defendant-appellant at the time of final arguments. Even otherwise it is well settled that the relief which is not specifically claimed by a party in the pleadings can be granted by the Court in the interest of justice. In that regard, reliance has been rightly placed by the ld. Addl. District Judge in the review order on a judgement in the case of Air India Ltd. v.
Atma Ram Properties Pvt. Ltd. 1996(3) RCR 81.
In view of the above, no question of law would arise for determination in these proceedings. The appeal is wholly without merit and does not deserve admission.
Consequently, the appeal fails and the same is dismissed.
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