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2005 DIGILAW 2328 (RAJ)

Lila Mathur v. Raj @ Raj Kumar

2005-09-01

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The appellant-plaintiff is aggrieved against the order of remand dated 11.03.2003 by which the first appellate Court remanded the matter to the trial Court to decide the issues No. 1, 2 and 5 afresh. 3. Brief facts of the case are that plaintiff-appellant filed the suit for recovery of rent and possession of the rented premises and the rent in which the trial Court framed the issue about the allegation of default committed by the defendant tenant. In view of the other grounds for eviction of the suit property, the issue about non-user of the premises was also framed by the trial Court. The trial Court decreed the suit of the plaintiff vide Judgment and decree dated 010.1998, against which, the tenant-respondent preferred appeal. The appellate Court observed that the trial Court while deciding issue of default of payment of rent, did not consider whether the rent deposited by the tenant under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is valid or not and in case it is found that rent under Section 13(4) has been deposited by the tenant legally and validly then whether the defendant was entitled for the benefit under Section 13(6) of the Act of 1950 and no decree for eviction of the tenant on the ground of default could have been passed. The another ground for remand is that plaintiff filed the suit with allegation that defendant closed the shop in the month of January, 1994 and the defendant is not using the shop for the purpose for which it was let out since last more than six months, therefore, the plaintiff is entitled for the decree for eviction of the tenant. The suit was filed on 28.02.1995. The first appellate Court observed that the trial Court did not consider whether the plaintiff waived his right for seeking decree for eviction of tenant because he has not filed the suit for eviction of the tenant immediately after the completion of six months of non-user. 4. The suit was filed on 28.02.1995. The first appellate Court observed that the trial Court did not consider whether the plaintiff waived his right for seeking decree for eviction of tenant because he has not filed the suit for eviction of the tenant immediately after the completion of six months of non-user. 4. Learned Counsel for the appellant vehemently submitted that the appellate Court committed serious error of law in remanding the matter to trial Court because of the simple reason that the appellate Court itself could have and should have decided the issue in accordance with law and no lawful reason exist for remanding the matter to the trial Court. 5. Learned Counsel for the respondent submitted that the trial Court, in fact, decreed the suit of the plaintiff against the defendant-tenant on the ground of first default despite the fact that tenant deposited the rent in the trial Court after determination of the rent under Section 13(3) of the Act of 1950, therefore, no decree could have been passed for eviction of the tenant when the tenant has complied with the requirement of payment of arrears of rent and rent during trial as required by Sub-section (4) of Section 13 of the Act of 1950 still the trial Court passed the eviction decree against the tenant on the ground of first default. It is also submitted by learned Counsel for the respondent that the first appellate Court relied upon the Judgment of this Court in which it has been held that in case the suit for eviction of tenant is not filed immediately after expiry of six months of non-user of rented premises then the presumption can be drawn of waiver of the right of the plaintiff on the ground of non-user of the rented premises by the tenant. 6. I considered the submissions of learned Counsel for the parties and perused the reasons given by the first appellate Court. 7. So far finding on issues No. 1 and 5 are concerned, it is nobodys case that the Court below failed to decide the issues. The Judgment of the trial Court dated 010.1998 clearly reveals that the trial Court decided the issues No. 1 and 5. 7. So far finding on issues No. 1 and 5 are concerned, it is nobodys case that the Court below failed to decide the issues. The Judgment of the trial Court dated 010.1998 clearly reveals that the trial Court decided the issues No. 1 and 5. Once the trial Court has decided the issue rightly or wrongly then the appellate Court not only can maintain, reverse or modify the finding recorded by the trial Court, may it be issue of fact or issue of law, but bound to decide the issue itself . The first appellate Court can also appreciate and re-appreciate all the evidence for deciding the issues of fact and even questions of facts and law. The case can be remanded only when appellate Court finds difficulty in deciding the issue because of valid reasons like issue of fact was not framed by the trial Court or new issue is required to be framed and further evidence is needed etc. Even on particular point of fact and law, if the trial Court has not applied its mind and the evidence is available on record before the first appellate Court, normally, the matter should not be remanded is the normal rule of law. In present case, the appellate Court reaches to the conclusion that the plaintiff failed to prove the default in payment of rent by the tenant then the appellate Court had ample jurisdiction to decide the issue in such manner. It is nobodys case that appellate Court itself could not have decided the issue on the basis of material and evidence available on record. Therefore, the order of remand on the face of it absolutely wrong and illegal. 8. So far as question of wavier is concerned, that question is pure question of fact for which factual foundation is required to be laid down and plea is required to be taken and whether is this case, the plaintiff waived his right, could have been decided by the first appellate Court because of the simple reason that even it is not the case of the defendant that any issue should have been framed by the trial Court about the waiver of the right of the plaintiff nor the appellate Court framed the issue then there was no cause for the first appellate Court to remand the matter. 9. 9. In view of the above, the appeal of the appellant deserves to be allowed, hence allowed. The order of the first appellate Court dated 11.03.2003 is set aside. The appellate Court is directed to decide the appeal in accordance with law at this stage.