Balkrishna vs Somnath through L.Rs.

N.K. Mody, J.—Being aggrieved by the judgment dated 13-1-2006 passed by District Judge, Ujjain in Civil Appeal No. 38-A/05 whereby the judgment dated 13-5-2005 passed by IV Civil Judge Class I, Ujjain in Civil Suit No. 129-A/02 whereby the suit filed by the appellant was decreed u/s 12 (1) (f) of the Accommodation Control Act (which shall be referred hereinafter as "the Act") was set aside and the case was remanded with a direction to re-frame additional issue and decide the same on merits, the present appeal has been filed. Short facts of the case are that appellant filed a suit for eviction against the respondent alleging that respondent was tenant in the suit accommodation @ Rs. 55/- per month. It was alleged that appellant requires the suit accommodation bonafidely for carrying on the business of appellant himself and his son Jitendra. In the suit it was alleged that after eviction appellant shall reconstruct the house which includes the suit shop for which appellant is having sufficient funds and has also obtained permission from the Municipal Corporation. It was prayed that decree of eviction be passed. The suit was contested by the respondent. The tenancy was not denied in the written statement, however, it was denied that appellant is entitled for decree of eviction as alleged by the appellant. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned Trial Court decreed the suit against which an appeal was filed by the respondent which was allowed and the case was remanded, against which the present appeal has been filed.

Mr. V.P. Saraf, learned Counsel for appellant argued at length and submits that impugned judgment is illegal and deserves to be set aside. It is submitted that appellant has not prayed for decree of eviction u/s 12 (1) (h) of the Act regarding reconstruction of house but prayed eviction on the ground of bonafide requirement. Learned Counsel submits that appellant makes a declaration in the Court that appellant is not claiming decree u/s 12 (1) (h) of the Act but the appellant is claiming decree u/s 12 (1) (f) of the Act. Learned Counsel placed reliance on a decision in the matter of Ashok and Others Vs. Shakuntala Bai and Shantilal Jain and Others, , wherein this Court has held that requirement of Section 12 (1) (h) is to be complied with only when the ground is taken u/s 12 (1) (h) but not otherwise. Learned Counsel submits that since the decree as prayed is u/s 12 (1) (f) of the Act therefore, requirement of Section 12 (1) (h) was not required to be complied with or proved and also there was no necessity to frame separate issue in this regard. Learned Counsel further placed reliance on a decision in the matter of T.R. Sah Vs. Smt. Kundan Kaur and Others, , wherein landlord pleaded that he required the premises bonafidely for occupation of himself and his family; he also stated that premises was in a damaged condition and required repairs it was held that averments relating to dismantling the roof and its reconstruction, it is not an independent ground but a part of the ground under clause (e); he establishes a case for eviction u/s 12(1)(e), he will be entitled to an order u/s 12(1) (e); in such an event it will be immaterial whether he demolishes the building or not; when a Court grants an eviction under clause (e), it shall dispose of the claim under clause (h), as having become infructuous or rendered redundant.

On the strength of aforesaid position of law, learned Counsel submits that appeal be allowed and impugned judgment be set aside.

Learned Counsel for respondents submits that appeal filed by the appellant itself is not maintainable. Learned counsel submits that order of remand can be passed under Order XLI Rules 23, 23-A and 25, CPC. Learned Counsel submits that order of remand can be passed under Order XLI Rule 23, CPC only when the suit has been decided on preliminary issue. Since the suit was decided on merits therefore remand could not have been ordered under Order XLI Rule 23, CPC. So far as Rule 23-A is concerned, learned Counsel submits that power can be invoked by the Appellate Court when the suit has been decided by the learned Trial Court otherwise than on a preliminary point. Learned Counsel submits that in the facts and circumstances of the case when the suit was decreed on merits, therefore powers could not have been invoked by the Appellate Court under Order XLI Rule 23-A, CPC. It is submitted that powers have been exercised by the Appellate Court under Order XLI Rule 25, CPC and the order of remand passed under Order XLI Rule 25 is not appealable. It is submitted that only on this ground the appeal deserves to be dismissed. Learned Counsel submits that from the pleadings it is evident that suit as filed by the appellant before learned Trial Court was for a decree of eviction u/s 12 (1) (f) and 12 (1) (h) of the Act. Appellant has pleaded all the ingredients for a decree u/s 12 (1) (h) coupled with Section 12 (1) (f) of the Act. Evidence was also adduced by the appellant in that regard and also case was argued by the appellant u/s 12 (1) (h) of the Act, therefore, in the facts and circumstances of the case it is wrong to say that suit was filed u/s 12 (1) (f) of the Act. It is submitted that in the facts and circumstances of the case no illegality has been committed by the Appellate Court in passing the impugned judgment. Pressing to the maintainability of appeal, learned Counsel submits that order filed before this Court is maintainable. For this contention, learned Counsel placed reliance on a decision in the matter of Sh. Dalbir Singh Vs. Union of India (UOI) and Another, , wherein order setting aside decree of Trial Judge and remanding case for decision on merits, it was held that appeal from such orders falls within category of ''appeal from order'' as described in Order 43 Rule 1 (u) and appeal is maintainable. It was further observed that its description by Registry as first appeal or second appeal is of no consequence.

It is submitted that in the facts and circumstances of the case, appeal filed by appellant be dismissed.

Order XLI Rules 23, 23-A and 25, CPC read as under:--

R. 23. Remand of case by Appellate Court. - Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is revered in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suit, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

R. 23-A. Remand in other cases. - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

Where Appellate Court may frame issues and refer them for Trial to Court whose decree appealed from. - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor (within such time as may be fixed by the Appellate Court or extended by it from time to time).

Prior to insertion of Rule 23-A it was only Rules 23 and 25 of CPC in which the Court was empowered to remand the case. Under Rule 23 of CPC remand is possible only when the suit is decided on preliminary issue which is appealable under Order 43 Rule 1, CPC but if the order of remand is passed where the suit is decided on merits then it was the order under Rule 25, CPC against which no Miscellaneous Appeal is provided.

Rule 23-A has been inserted by the CPC in Amendment Act, 1976 (104 of 76) w.e.f. 1-2-77. Under this Rule, a suit will be remanded to the Lower Court even though such Court has disposed of the case on merits and not merely on a preliminary point. In the facts and circumstances of the case, this Court is of the view that the preliminary objection raised by the respondent about the maintainability of the appeal is not tenable. Learned Appellate Court has remanded the case in exercise of the powers conferred by Rule 23-A of CPC against which Miscellaneous Appeal is provided under Order 43 Rule 1, CPC.

So far as merits of the case are concerned, right from the beginning the case of the appellant is that the appellant requires the suit accommodation for carrying on the business for his son bonafidely, for which appellant has pleaded full facts and adduced evidence to the effect that appellant has got the estimate prepared and the appellant is having sufficient funds. Before this Court also learned Counsel for the appellant has made a declaration that the appellant does not want a decree u/s 12 (1) (h) of the Act. It is also declared that appellant is praying for the decree of eviction u/s 12 (1) (f) of the Act. In the facts and circumstances of the case when the appellant is praying for the decree u/s 12 (1) (f) of the Act only, there was no justification on the part of learned Appellate Court to remand the case with a further direction to frame the additional issue regarding entitlement of the appellant for a decree u/s 12 (1) (h) of the Act. An unwarranted order of remand gives the litigant and undeserved lease of life and therefore, must be avoided. In view of this, the appeal filed by the appellant is allowed. Impugned judgment passed by learned Appellate Court is set aside. Case is remanded back to learned Appellate Court to redecide the appeal on merits. Parties are directed to remain present before learned Appellate Court on 10-10-2011.

No order as to costs.