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1991 DIGILAW 334 (PAT)

Kartar Devi v. Pramila Das

1991-08-30

S.B.SINHA

body1991
JUDGMENT S.B. SINHA, J. 1. This application is directed against a judgment dated 16.6.1989 passed by Shri Baleshwar Prasad Singh, First Additional District Judge, Giridih in Eviction (Title) Appeal No. 2/61 of 1987-88 whereby and whereunder the said learned court set aside the judgment and decree passed by the Second Additional Munsif, Giridih in Title Suit No. 155 of 1980 & 24 of 1987. 2. The fact of the matter lies in a very narrow compass. 3. Allegedly the plaintiff purchased the suit properties from the rightful owners by reason of a registered deed of sale dated 13.12.1979. According to the plaintiff, the defendant was a tenant under his vendor. The plaintiff therefore, filed a suit for eviction on the ground of default as also on the ground of her personal necessity. In the aforementioned suit, the defendant contended that she had been in occupation of the premises in question in her own right on the basis of an agreement dated 28.10.1979. 4. By a judgment dated 20.8.1983, the suit was decreed. The defendant preferred an appeal against the said judgment and decree which was registered as Title Appeal No. 59/5 of 1983-84, but the same was dismissed by a judgment dated 30.11.1985. A second appeal was preferred in this court, from the aforementioned judgment and decree which was registered as Second Appeal No. 21 of 1986 (R). By an order dated 5.11.1986 this court set aside the judgment and decree passed by the courts below inter alia on the ground that as Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 will apply to the premises in question, and thus the matter should be remitted to the trial court. This court further gave liberty to the parties to adduce additional evidence on the ground of default as also on the ground of her personal necessity. 5. After remand the suit was again decreed. The learned trial court by a judgment dated 30.7.1987 inter alia held that the defendant had failed to prove that she had been in occupation of the suit premises in terms of the agreement dated 28.10.1979. 5. After remand the suit was again decreed. The learned trial court by a judgment dated 30.7.1987 inter alia held that the defendant had failed to prove that she had been in occupation of the suit premises in terms of the agreement dated 28.10.1979. The learned trial court further held:– "Therefore from the materials on record and oral evidence it is established that the plaintiff has got title and ownership to the suit also and the defendant being the tenant of the vendors of the plaintiff has not recognised her landlord is now a licensee and she is liable for eviction from the suit premises. This issue is decided in favour of the plaintiff." 6. The defendant-opposite party preferred an appeal as against the said judgment and decree which was registered as title appeal No. 2 of 1987. 7. By reason of the impugned judgment, as indicated hereinbefore the learned court of appeal below remanded the entire suit to the trial court holding inter alia:– "No doubt the total valuation of the suit house can be known from the sale deed filed but there is no paper to this effect as to what is the valuation of the suit premises occupied by the defendant and that can be judged only if the parties are allowed to led evidence on that point which can be done by the lower court. In that view of the matter this is a fit case which should be remanded back to the learned lower court to decide the valuation of the portion of the suit house occupied by the appellant defendant and then after deciding the valuation of the plaintiff be directed to pay ad valorem court fee on that amount and then after hearing the argument of the parties decide the case in accordance with law on the basis of the evidence already adduced on behalf of both the parties which are on the record. I would also like to point out here that the parties should be asked to lead evidence only on the point of valuation and on no other point as they have already led evidence on other points." 8. I would also like to point out here that the parties should be asked to lead evidence only on the point of valuation and on no other point as they have already led evidence on other points." 8. It appears that the learned court of appeal below come to the aforementioned conclusion inter alia on the ground that as the plaintiff was held to he a licensee in respect of the suit premises, ad valorem court fee is required to be paid by the plaintiff and her suit could be decreed only on the basis of her general title. 9. Mr. P.K. Prasad, learned counsel appearing on behalf of the petitioner raised a short question in support of this application. The learned counsel submitted that it was open to the petitioner to contend before the learned Court of appeal below that a mistake had been committed by the learned trial court in using the word 'Licensee' in view of his own finding that plaintiff had been able to prove the relationship of landlord and tenant by and between the parties to the lis. 10. The learned counsel next contended that in any event the learned Court of appeal below had no jurisdiction to pass the impugned order of remand in view of the provisions contained in Order 41 Rule 25 of the Code of Civil Procedure. 11. Mr. K.K. Sahay, learned counsel appearing on behalf of the opposite party, on the other hand, submitted that in the facts and circumstances of the case, the impugned judgment should be treated to be order of remand under Order 41 Rule 23A of the Code of Civil Procedure. 12. According to the learned counsel a decision on the question of title will have bearing on other issues involved in the suit. 13. The learned counsel further pointed out that the plaintiff had claimed a decree for arrears of rent from the year 1978, although admittedly he purchased the suit premises by reason of a registered deed of sale on 13.12.1979 and this aspect of the matter should also be considered by the learned trial court. 14. A court of appeal has a power to remand a case only under Order 41 Rule 23 and Rule 23 A and Rule 25 of the Code of Civil Procedure. 15. 14. A court of appeal has a power to remand a case only under Order 41 Rule 23 and Rule 23 A and Rule 25 of the Code of Civil Procedure. 15. In this case, admittedly Order 41 Rule 23 of the Code of Civil Procedure has no application. 16. Order 41 Rule 23A of the code of Civil Procedure reads as follows:– "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 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." 17. From a bare perusal of the aforementioned provision it would be evident that in order to invoke the jurisdiction of the appellate court in terms thereof a decree passed by the learned trial court has to be reversed in the appeal and a retrial must be considered necessary and only upon fulfillment of the aforementioned conditions, the court can exercise its powers of remand which is vested in it under Order 41 Rule 23A of the Code of Civil Procedure. 18. The operative portion of the impugned judgment shows that the learned court of appeal below has not held that a retrial of the suit is necessary. 19 It is also not a case where the learned court of appeal below has reversed all the findings of the learned trial court. 20. In this view of the matter, evidently, Order 41 Rule 23A of the Code of Civil Procedure will also have no application. In terms of Order 41 Rule 25 of the CPC the court of appeal below has jurisdiction to remand case only where it is held that the trial court has omitted to frame or try any issue or to determine any question of fact, which according to the appellate court was essential for the right decision of the suit. In such an event, the appellate court may frame issues, and refer the same for trial to the court from whose decree the appeal is preferred. In such an event, the appellate court may frame issues, and refer the same for trial to the court from whose decree the appeal is preferred. In a case where appellate court exercises its power under Order 41 Rule 25 of the CPC it should remand the suit for determination of such issues only which have been framed by the appellate court and thereupon the trial court is required to return the evidence to the appellate court together with its findings thereon and the reasons therefore. The appellate court on receipt of the evidences recorded by the trial court and the reasons recorded by him is required to proceed with the appeal and pass a judgment in accordance with law. 21. It is, therefore, evident that in a case where an order of remand is passed under Order 41 Rule 25 of the CPC, it retains with it the appeal itself and remit the matter to the trial court for a limited purpose. The learned court of appeal below therefore also has not exercised his jurisdiction under Order 41 Rule 25 of Code of Civil Procedure. 22. The learned court of appeal below also does not appear to have considered the submissions made on behalf of the petitioner that the learned trial court has committed a mistake in holding that the relationship of the petitioner and the opposite party was that of licensor and licensee only because the opposite party had denied the title of the plaintiff and denied the relationship of landlord and tenant by and between the petitioner and himself. 23. So far as the submission of Mr. Sahay to the effect that the plaintiff-petitioner has claimed decree for eviction on the ground that the opposite party defaulted in payment of rent from the year 1978, in my opinion, the said question could be considered by the learned court of appeal below itself on the basis of materials available on record and in particular the deed of sale dated 13.12.1979 in terms of the provisions contained in Order 41 Rule 24 of the Code of Civil Procedure. 24. Taking thus, all aspect of the matter into consideration, I am of the view that the impugned order cannot be sustained. 25. 24. Taking thus, all aspect of the matter into consideration, I am of the view that the impugned order cannot be sustained. 25. In the result, this application is allowed, the impugned order is set aside and the learned court of appeal below is directed to apply its mind afresh and pass a judgment in accordance with law. 26. It is made clear that in the event the learned court of the appeal below comes to the conclusion that in the interest of justice some issues are required to be framed including valuation of the suit properties, it would be open to it to frame those issues and pass an order of remand in terms of Order 41 Rule 25 of the CPC. 27. As the matter has been pending for a long time, the learned court of appeal below should take up the hearing of the appeal as early as possible. 28. In the facts and circumstances of the case, there will be no order as to costs.