Dhani Ram vs Ganesh Dass

R.N. Mittal, J.—This second appeal has been filed by the Defendant against the judgment and decree of the Additional District Judge, Rup Nagar, dated December 12, 1979.

Briefly, the facts are that the Plaintiff filed a suit for possession by way of ejectment of the Defendant from the property in dispute. It was contested by the Defendant inter alia on the ground that he was not a tenant under the Plaintiff, that a proper notice u/s 06(sic) of the Transfer of Property Act was not served upon him, that he had acquired permanent tenancy rights in the property, that he had raised construction on it at a cost of Rs. 5,000/- and that the Plaintiff was estopped from terminating the tenancy. The trial Court on the basis of the pleadings framed the following issues:-

Whether Defendant has sublet the shop in dispute to Muni Lal Vinod Kumar, is so its effect ?

Whether a valid notice u/s 106(sic) of the Transfer of Property Act was served on the Defendant ?

A. Whether the Plaintiff requires the shop in dispute for his own use bona fide?

Whether the suit is time barred ?

Whether the Defendant is the tenant of Ganesh Dass Plaintiff?

Whether suit is bad for non-joinder of necessary parties ?

Whether suit is not maintainable in the present form ?

Whether suit is not properly valued for the purpose of court fee and jurisdiction ?

Relief

The trial Court decreed the suit of the Plaintiff. The Defendant went up in appeal before the District Judge. Rup Nagar He, on February 9, 1978 set aside the judgment and decree of the trial Court and remanded, the case after framing the following three additional issues:-

1 Whether the Defendant has acquired permanent tenancy rights in property in dispute ?

2 Whether the Defendant has iised(sic) constructions in the property in suit at costs of Rs. 5,000/ as alleged in para No. 6 of the written rutement.(sic) If so, its effect ?

Whether the Plaintiff is estopped by his act and conduct from terminating tenancy of Defendant ?

He also held that some documents had not been exhibited property.

After the remand, the learned trial Court decide the additional issues but did not decide the earlier issues framed by it and again decreed the suit. The Defendant went up in appeal before the Additional District Judge who affirmed the judgment and decree of the trial Court and dismissed the same. He has come up in second appeal against that decree to this Court.

It is contended by the learned Counsel for the Appellant that the learned District Judge vide order dated February 9, 198(sic) had set aside the judgment and decree of the trial Court and remanded the case to it for deciding the matter afresh. He further submits that he had framed three additional issues and the trial Court had to decide the case again on the old as well as the additional issues. According to the counsel, the barred Court did not decide the old issues but disposed of the suit by deciding only the additional issues framed by the District Judge.

I have heard the learned Counsel and find force in his contention. It will be useful to refer to the operative part of the Order of remand which is as follows: -

In view of the authority of our own High Court reported as Prem Singh v. Mangal Singh and others, 1977 Rev. L. R 170, aforesaid flaw makes it obligatory on my part to send this case to the lower Court, after accepting the appeal and setting aside the judgment and decree appealed against. But for this technical flaw I would have remitted the case only for trial of the newly framed issues, but now (sic) remand the case to the trial Court under Order 4t(sic) Rule 23A, C P C, with the direction that it should re admit the suit at its original number in the register of civil suits and proceed to determine the suit Let it be made clear that evidence recorded during the original trial shall subject to the just exceptions be treated as evidence during the trial after remand. Similarly, the documents referred to above and relied upon by the parties may be admitted into evidence just after making and crsements(sic) in terms of Sub-rule (1) of Rule 4 Order C. P C.

From a perusal of the aforesaid portion of the judgment. It is evident that the Appellate Court had set aside the judgment and decree of the trial Court in toto and it had remanded the case under Order 41 ule(sic) 23.A CPC It provides that where the Court from decree an appeal is preferred has disposed of the case or 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.(sic) Applying the aforesaid Rule 1, it remanded the case to the trial Court In the aforesaid situation, it became incumbent upon the trial Court to decide all the issues i e, issues framed by it and the District Judge. Both the Courts below have erroneously held that it was not incumbent upon them to decide the issues framed earlier by the trial Court. In the aforesaid circumstances, the judgment and decree of the Appellate Court is liable to be set aside.

For the aforesaid reasons, I accept the appeal set aside the judgment and decree of the Court below and remand the case to the trial Court for deciding the matter afresh. It is conceded by the counsel for the parties that they have already led the evidence. The parties are directed to appear in the trial Court on March 17, 1980.

No order at to costs.