Shantilal vs Ashok Kumar

Dr. Vineet Kothari, J—The present misc. appeal under Order 43 Rule 1 CPC has been filed by the appellant/landlord, Shantilal S/o. Sh. Bhagwan Das Agrawal aggrieved by the remand order dated 17.04.2015 passed by learned Additional District Judge No. 1, Bikaner, sending the eviction suit for fresh trial to the learned trial court who had granted eviction decree in favour of landlord in Suit No. 88/04-Shantilal v. Ashok Kumar on 11.08.2011.

Learned trial court had granted eviction decree on 11.08.2011 on the ground of bonafide need of the landlord while giving following findings in favour of appellant/plaintiff.

The learned first appellate court remanded the matter back to the trial court by impugned order dated 17.04.2015 allowing two applications filed by the defendant/tenant under Order 41 Rule 27 read with Section 151 CPC and under Order 6 Rule 17 read with Section 151 CPC. The reasons assigned by the learned appellate court of Addl. District Judge No. 1, Bikaner, while remanding the matter back to the trial court are also quoted herein below for ready reference:--

Mr. Narendra Thanvi, learned counsel for the appellant/plaintiff submitted that a well reasoned decree finding the personal, bonafide and reasonable necessity of the landlord and giving that eviction decree on that, the same has been set aside by the learned lower appellate court on wholly flimsy grounds namely that the document was sought to be produced by the defendant/tenant, which prima-facie indicated that a rented out shop was already available with the landlord and another shop in the name of plaintiff''s father allotted in the Krishi Mandi Yard, in which the plaintiff could have a share and, therefore, he could satisfy his such need for the suit shop with the said alternative accommodation available to him and these documents found relevant, deserves to be considered by the trial court and, therefore, remand was made by the learned lower appellate court below.

He submitted that firstly, the defendant/tenant with his due diligence could very well obtain these documents during the trial itself, however, as an afterthought these documents were produced at the appellate stage, and relying upon such documents the suit could not be have been remanded back to the learned trial court for holding a fresh trial. Secondly, neither the rented accommodation possessed by the landlord, nor the alleged shop in the name of plaintiff''s father can sufficiently dispel the bonafide need of the plaintiff/appellant, which was in his own ownership, which he wanted to have for his own use or business and sought eviction of the defendant/tenant on the ground of personal and bonafide need, which was duly established and these defences were already considered by the learned trial court; and since the settled legal position is that bonafide need on the date of filing of the suit is to be ascertained, which in the instant case, was duly established by the plaintiff. He, therefore, argued that decree of eviction could not have been set aside by the learned appellate court on these grounds and thus the remand order of the appellate court deserves to be set aside.

On the other hand, Mr. V.L. Thanvi, learned counsel for the respondent/defendant supported the impugned remand order and urged that issues of bonafide need, and comparative hardship deserve to be decided again afresh by the learned trial court in pursuance to the remand order; and the learned lower appellate has granted two months'' time to the trial court to decide the relevant issue on the basis of fresh evidence brought on record before the appellate court. He, therefore, submitted that the remand of suit is justified and the present appeal deserves to be dismissed.

Having heard the learned counsel for parties, and upon perusal of the orders of the courts below, this Court is satisfied that the appellate court has remanded the case back to the trial court on irrelevant consideration. The legal position in this regard is that the bonafide and personal necessity is to be seen on the date of filing of suit, and that was duly established by the landlord/plaintiff in the present suit and by detailed and well reasoned findings considering the defence of the tenant, the eviction decree was given by the learned trial court. The additional evidence sought to be produced by the defendant at the appellate stage was an evidence of the contemporary period which was duly available during the trial itself and these defences were considered by the learned trial court. For the reasons best known to the defendant/tenant, he did not produce these documentary evidence before the learned trial court; and merely because such documents are produced before the learned appellate court later on and they are found to be relevant, the remand of trial cannot be made by the appellate court.

The power to set aside the decree and remand with the appellate court is, of course there but that has to be exercised with great caution and reasonable amount of circumspection. It is well known that upon remand, even if a stipulated time frame is given by the higher courts, it usually takes much longer for the lower courts to decide the issues on which such remand has been made by the higher courts. Rent control and eviction matters already bear a infamy of delayed trials in our court system. The Court dockets are clogged with large number of cases specially in the lower courts. In such circumstances, assuming for arguments'' sake that the additional evidence brought before the appellate court was found to be relevant, though in the present case this Court does not find any such ground, because the bonafide need on the date of filing of the suit is not affected by these documents, even then, the appellate court itself could have given an opportunity to the parties to prove that evidence in accordance with law and decide on merits the relevant issues itself. In the present case, the impugned remand order appears to be a remand merely on askance of the defendant/tenant making the trial a shuttlecock.

In the background of delays in trial, the greater amount of restraint is required to be exercised by the appellate courts while remanding the case back to the trial courts. It has obviously not been followed in the present case, therefore, this Court is of the considered opinion that the remand order in the present case cannot be sustained and the present appeal of the appellant/plaintiff deserves to be allowed, the same is accordingly allowed and setting aside the impugned order dated 17.04.2015, the learned appellate court of Additional District Judge No. 1, Bikaner, is directed to decide the appeal of the defendant/tenant on merits within a period of six months from today. The applications of the defendant/tenant under Order 41 Rule 27 CPC and under Order 6 Rule 17 shall be treated as rejected and the appellate court shall decide the appeal on merits. The parties are accordingly directed to remain present before the lower appellate court on 11.08.2015 in the first instance. No costs. A copy of this order be sent to the concerned parties and the appellate court below forthwith.