Hori Lal vs 11th Addl.District Judge, Lucknow and Another

K. L. Sharma, J.—This writ petition has been filed under Article 226 of the Constitution against the judgment and order dated 28th April, 1993 contained in Annexure18 to the writ petition passed by the Xlth Additional District Judge, Lucknow in Rent Appeal No. 161 of 1986, whereby the appeal was allowed, and the judgment of the Prescribed Authority was set aside, and the application of the landlordrespondent No. 2 filed under Section 21(l)(a) of U. P. Act No. 13 of 1972 was allowed, and the tenantpetitioner was directed to hand over the possession of the premises to the landlordrespondent No. 2 within a month.

The relevant facts necessary for the determination of the contentions raised in this writ petition are briefly stated as follows. The respondent No. 2 in this writ petition is the owner and landlord of House No. C379, Sector Bl, Mahanagar, Lucknow and has been residing in the back portion of this building. The front portion of the said building was let out to the petitioner in the year 1967. Another portion was let out in the year 1982 to the Editor of ''Telegraph India'' which was however vacated. The respondent No. 2 was an officer of U. P. Finance and Accounts Service and as such he remained posted outside Lucknow, but before his retirement on 3091983 he was transferred from Kanpur to Lucknow and he was required to vacate the Government residence at Kanpur by June 30,1983. The respondent No. 2 filed an application in May 1983 for release of the accommodation in possession of the tenant Hori Lal under Section 21(1)(a) of U. P. Act No. 13 of 1972 in proceedings before the Prescribed Authority (Civil Judge). The tenant Hori Lal moved an application for amendment of the written statement which was rejected by the Prescribed Authority. He had, therefore, filed writ petition No. 5030 of 1984 which was decided by this Court on January 8, 1985 vide Annexure5 with the direction to the Prescribed Authority to decide expeditiously the application by making a local inspection of the extent of the accommodation available, for the reason that the Legislature has made a special provision in favour of the persons retiring from service. The Prescribed Authority dismissed the application. The petitionertenant Hori Lal has since retired as an I.P.S. Officer serving the Government of U. P. in various posts of transferable nature. Therefore, the respondent No. 2 filed Rent Appeal in the court of the District Judge which was heard and dismissed by the Xlth Additional District Judge on 20988 vide Annexure13 to the writ petition. The landlordrespondent No. 2 challenged the judgment and order of the XI Additional District Judge in Writ Petition No 2237 of 1989 which was decided on 13989 by this Court vide judgment, Annexure14 to the writ petition. The writ petition was allowed, and the judgment of the learned appellate court was set aside and the case was remanded to the appellate court for decision afresh according to law keeping in view the observations contained in it. In view of this remand order, the appellate court proceeded further, and after hearing both the parties allowed the appeal and set aside the dismissal order of the application passed by the Prescribed Authority. It is against this judgment and order dated 28493 that this writ petition has been filed.

I have heard Sri P. K. Khare, learned Counsel for the petitioner and respondent No. 2 who is himself an Advocate, and perused the entire record.

Mr. P. K Khare, the learned Counsel for the petitioner has vehemently contended that the impugned judgment and order of the Xlth Additional District Judge, Lucknow is a nullity as it has exceeded the jurisdiction limited by the order of remand of this Court in writ petition No. 2237 of 1989. He has submitted that the appellate court could not have replaced the earlier findings by a fresh decision on the entire case in view of the remand order read with the observations of this Court, but the appellate authority has totally upset the earlier findings recorded and untouched by the High Court and gave new and fresh findings in place of the old ones, and as such the judgment becomes vitiated. In order to emphasize the principle that the order of remand limits the jurisdiction of the appellate court, Mr. P. K. Khare has cited a number of decisions, which I would like to refer in the following paragraphs.

In the case of Sarjug Rai and others v. Shri Bhagwan Rai (AIR 1975 Patna 162), the following observations are worth quoted :

"Even if the order of remand by the High Court is not covered by any of the rules of Order 41, Civil PC or was under the exercise of its inherent powers, the matters finally disposed of by the order of remand cannot be reopened when the case comes back from the lower Court. If a Judge on appeal decided certain points and remanded the case, his decision is binding on his successor before whom the case comes back again on appeal from the judgment after remand, because such a court is a court of coordinate jurisdiction and therefore he cannot go behind the earlier final decisions of his predecessor before remand. It is not open to the lower court when an appellate court remanded the case to it, to do anything but to carry out the terms of the remand even if it considered that the order of remand was not in accordance with law. If actually the parties were aggrieved by an order of limited remand, it was open to them to have challenged the said judgment in appeal under the Letters Patent or in Supreme Court, but cannot challenge the same when the matter came before High Court in appeal against judgment after remand. It cannot therefore be contended that in spite of the confirmation of some of the findings by the High Court, the lower appellate Court is authorised to hear the parties on those questions to come to its own decision."

In the case of Smt. Chandra Devi and other v. Abdul Halim and others (1986(4) LCD 270), this Court also considered the scope of the order of remand and reiterated the view expressed in the case of Cherein v. Kochuvareed (AIR 1975 Kerala 197) in the following words :

"If a High Court remands a case to the lower court," the matters finally disposed of by the order of remand cannot, any of them, be reopened, when the case comes back from the lower court but, if at the time of remand, no final decision is given on a point, though some observations only are made in respect of it, is open to another Bench, a court of co ordinate jurisdiction, when finally determining the case, to come to its own conclusions on it; and, (2) that even in a case, decided by the first court of appeal other than a case decided by the High Court, if a Judge on appeal decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again from the judgment after remand, because such a court is a court of coordinate jurisdiction, and, therefore, he cannot go behind the earlier final decision of his predecessor before remand.

The test, therefore, in such a case to ascertain if a particular finding given by the Judge on appeal is a final decision, or not is to find out, if, by the order of remand, the Judge on appeal has remanded the suit for determination of all the points at issue, or it has determined some points in controversy, and remanded the suit for determination of the remaining points, which may include the question of maintainability of the plaintiff''s suit itself, in which case the decree of the first court has to be set aside, and the suit remitted to the court below for a fresh decision of the case according to Law."

In the case of Dilip Kumar Roy and others v. Panchkari Sinha and others (AIR 1990 Calcutta 32), the question about the scope of order of remand was raised and considered, following the decision of the Kerala High Court (supra), the Calcutta High Court also reiterated that if at the time of remand no final decision is given on a point, though some observations only are made in respect of it, it is open to a court of coordinate jurisdiction, when finally determining the case, to come to its own conclusion in it; and even in a case decided by the High Court, if a Judge of appeal decides certain points and remands the case, his decision is binding on his successor before whom the case comes up again from the judgment after remand.

As regards the principles of law, there is no dispute, the question rests on the interpretation of the order of remand dated 13989 passed by Hon''ble B. L. Loomba, J, as he then was, in Writ Petition No. 2237 of 1989. It is, therefore, fruitful for ready reference to quote the relevant observations in the light of which the appellate court was required to act after the order of remand :

"From the judgment of the learned Appellate Court, it appears that no finding has been recorded as to the extent of the accommodation which was let out by the petitionerlandlord to the Editor of the ''Telegraph India'' and which accommodation subsequently reverted to the petitioner on vacation by the said tenant.

Since on one of the important aspects of the matter as to the extent of the accommodation available with the petitioner, the parties are at variance and the judgment of the learned Appellate Court is not appearing precisely clear on this point. It appears necessary in the interest of justice to remand the matter to the learned Appellate Court for reconsideration of the matter and decision afresh according to the law and keeping particularly in view of the extent of the accommodation available with the petitioner. If considered necessary, it will be open to the learned Appellate Court to issue a commission for a factual report on this point."

With these observations, the writ petition was finally disposed of, and the following final order was passed on 13989 :

"The writ petition is accordingly allowed and the judgment of the learned Appellate Court is set aside and the case is remanded to the Appellate Court for decision afresh according to law keeping in view of the observations contained in it. Parties shall bear their own costs before this Court.

Parties are directed to appear before the Appellate Court on 15th October, 1989."

I have carefully perused this judgment dated 13989 and do not find at all that the other findings were considered by the High Court and were either confirmed or upset. The only point considered by the High Court related to the absence of finding on the extent of accommodation available with the landlord, Since the finding of a very substantial question was missing in the judgment of the appellate court, the High Court was pleased to allow the petition and set aside the judgment of the learned appellate court and reminded the case for decision afresh according to law keeping in view of the observations contained in it. Since the High Court has itself not considered and decided about the correctness or otherwise all other findings recorded by the appellate authority, it cannot be said that the High Court had confirmed the other findings or the other findings would remain intact even when the judgment of the appellate court was set aside wholly. Moreover in the release proceedings, there are only two questions of fact to be determined by the Prescribed Authority, or in appeal by the appellate authority, if challenged. The first question is most basic and fundamental one relating to the bonafide need of the landlord requiring possession of the accommodation. The other question relates to the comparative hardship of the landlord visavis the tenant. Without determining the first question of the bonafide need, the second question does not arise at all. The Legislature by an amendment of U. P. Act No. 13 of 1972 has also made a special provision in favour of the landlord retiring from service. In view of these legal requirements, the summum bonum of the release proceedings under Section 21(l)(a) is the bonafide need of the landlord which has to be determined in relation to the accommodation in his occupation and his need for additional accommodation. Therefore, this Court did not consider necessary while disposing of writ petition No. 2237 of 1989 to go into the other question of comparative hardship when there was no clearcut finding of the appellate court about the extent of accommodation available with the landlord and sufficiency, or otherwise thereof with respect to the need of the landlord It cannot, therefore, be said that the finding of comparative hardship would stand as such irrespective of the finding of bonafide need of the landlord. The judgment of the appellate authority was, therefore, rightly set aside by this Court while remanding the case to the appellate authority for a fresh decision in accordance with law and the observations. This Court did not limit the jurisdiction of the appellate court to confine its fresh finding only to the extent of the accommodation available with the landlord. Had it been so intended, the appellate authority could not have decided the case afresh according to law. This Court had not asked the appellate authority for recording the missing finding and to remit the finding alongwith the record to this Court for a final decision. In fact, this Court finally disposed of the writ petition and set aside the judgment of the appellate authority challenged in the petition, lam, therefore, of the view that the order of remand dated 1391989 recorded in Writ Petition No. 2237 of 1989 did not limit the jurisdiction of the appellate authority only to the determination of the question relating to the extent of the accommodation available with the landlord. The appellate court acted clearly within its jurisdiction to record fresh findings after affording full opportunity to the parties and after appointing a commission for local inspection, on all the relevant questions arising in the appeal. It was necessary for the appellate authority for deciding the appeal as a whole to redetermine the question of the comparative hardship after recording the finding about the extent of the accommodation available with the landlord and his bonafide need for his additional requirement of accommodation. Therefore, the impugned judgment containing fresh findings on both the related questions recorded by the appellate court is perfectly consistent with the order of remand dated 13989 & perfectly valid in view of the principles of law already recognised by the High Courts in the cases referred to above.

Mr. P. K. Khare further referred to the provisions of Section 34 of the U. P. Act No. 13 of 1972 with a view to show that the appellate court did not have jurisdiction to set aside its own finding recorded prior to the order of remand. Section 34 declares the District Magistrate, the Prescribed Authority, appellate or revising authority as a Civil Court only for the limited purpose in the following matters :

"(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) receiving evidence on affidavits ;

(c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents of local investigation ;

(d) requiring the discovery and production of documents ;

(e) awarding, subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party ;

(f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith;

(g) any other matter which may be prescribed."

It also provides for award of costs in the proceedings, verification of affidavits, principles of proof, rules of limitation and guiding principles as prescribed.

10A. The appeals are filed under Section 22, which also provides that the provisions of Section 10 shall mutatis mutandis apply in relation to an appeal. Section 10(2) reads :

"The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit."

Even though all the provisions of the Code of Civil Procedure have not been made applicable as per Section 34 of the Act to the proceedings under U. P. Act 13 of 1972 as they are intended to be summary and to be disposed of expeditiously, Section 10 read with Section 22 of the Act makes it amply clear that the appellate Court has got all the powers which are enjoyed by a Civil Court having appellate jurisdiction. When the judgment of the appellate authority is wholly set aside and a superior court gives a clearcut direction to the appellate authority by remanding the case to record a fresh decision in accordance with law and in the light of the observations made, appellate authority has to rehear the appeal afresh on all the points open for decision in accordance with law. In the present case also the judgment of the appellate authority was wholly set aside and a fresh decision in accordance with law and observations made was required to be recorded, the appellate authority had no option except to rehear the appeal and decide it afresh. The law contained in Section 21 (1)(a) required the appellate authority to record clearcut findings on the questions involved in the appeal in order to dispose it of finally. As already pointed out above, it would not have been possible for the appellate authority to dispose of the appeal and to record a clearcut decision if it had not considered all the questions involved in the proceedings. I, therefore, do not consider the impugned judgment lacking jurisdiction either in view of the remand order or in view of the provisions of the Act.

Mr. P. K. Khare, learned Counsel for the petitioner secondly contended that the impugned judgment of the appellate court is perverse on its face as the findings recorded are not correct. I have perused the judgment of the appellate court and find that the conclusions recorded by the appellate authority are related to the evidence on record and cannot be said to be based on assumptions or on no material. This Court while exercising jurisdiction under Article 226 of the Constitution exercises its power of judicial review only, but does not act as a court of appeal. If there is material sufficient or insufficient to sustain a finding, it cannot be said that the finding is perverse, but if there is no material at all for a finding or it is based purely on imagination or assumption, then it can be said to be perverse. The conclusion arrived at by the appellate court cannot be substituted by the better wisdom of the High Court exercising jurisdiction under Article 226 of the Constitution. The correctness or otherwise of the finding recorded by appellate court can be examined only by a superior authority exercising its appellate power. Here in this case only judicial review is being done. The findings recorded by the appellate authority are based on material and can be reasonably sustained on its face. There is no case of perversity as contended by the learned Counsel for the opposite party. The impugned judgment does not suffer on its face from any infirmity or illegality.

The learned Counsel for the petitioner further challenged the finding of fact relating to the bonafide need of the respondent No. 2. In support he referred to a decision of the Hon''ble Supreme Court recorded in Civil Appeal No. 1055 of 1980 (Ramesh v A. Balreddy, AIR 1990 Supreme Court 1376). In this case the question of need of the landlord was involved under the provisions of Section 10 of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (1950). The Hon''ble Supreme Court while exercising the appellate jurisdiction, set aside the finding of the Andhra Pradesh High Court by holding that the requirement of the landlord was fanciful wish and could not be accepted as good ground for eviction. In my opinion, this decision recorded in an appeal on the facts of a particular case is of no assistance to the learned Counsel for the petitioner in his view that the need of the landlord in the present case also was the fanciful wish for additional accommodation. I do not find substance in his view. The appellate court has dealt with the material and evidence available on record and has come to a clearcut finding about the need of the landlord which cannot be interfered by this Court while exercising the power of judicial review as it does not suffer from any legal infirmity.

The landlord retired from government service on September 30, 1983 and filed the release application in May 1983 and has been litigating in different courts for last 11 years to get possession of additional accommodation in his own building. It is true that the petitioner has also retired from government service as an l.P.S. Officer and has been living in the front portion of the building since 1967 despite his postings to other districts and places outside Lucknow during the entire period of 26 years, but that does not mean that he should go on resisting the lawful claim of the landlord. The respondent No. 2 while arguing as an Advocate, also made a mention and referred to a document of Lucknow Development Authority available in the file to point out that the petitioner has already got a residential plot and has constructed his building but is not vacating the premises of the landlord. All this cannot be seen at this stage when the matter has been fully adjudicated upon by the appellate court. Moreover, this Court cannot go into the disputed facts between the parties in a writ petition under Article 226 of the Constitution.

As a result of the aforesaid discussion, I come to the conclusion that this writ petition has no merit and is consequently dismissed with the direction that the petitioner shall pay a sum of Rs. 2,500/ as costs of this proceeding to the respondent No. 2 within a period of thirty days from the date of the delivery of the judgment. The stay order dated 24593 is hereby vacated.

(Petition dismissed)