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2009 DIGILAW 854 (ALL)

GAYATRI DEVI v. STATE OF U P

2009-03-20

PRAKASH KRISHNA

body2009
PRAKASH KRISHNA, J. This is landlords petition. It arises out of pro ceedings under section 21 (8) of the U. P. Act No. 13 of 1972. The petitioners who are the owners and landlords of Kothi situate at Kishanpur, Ram Ghat Road, Aligarh bearing Municipal No. 2/578, filed an application for enhancement of rent in respect of the tenanted accommodation in possession of the Regional Transport Officer, Aligarh, before the prescribed authority. In support of their plea for enhancement of rent, the petitioners filed a valuers report dated 13th October, 1994. The parties led evidence in support of their respective cases. The prescribed authority by the order dated 28th February, 2006 allowed the said application in part and enhanced the monthly rent from Rs. 1490 to Rs. 23750/ -. Feeling aggrieved against the aforesaid order, both the petitioners as well as the Regional Transport Authority preferred appeals under section 22 of the Act. These appeals came up for consideration before the Court below. The Court below by the impugned order allowed both the appeals and restored back the matter to the prescribed authority with the direction that the parties may lead evidence with regard to the market value of the land beneath the build ing in question. 2. Challenging the aforesaid judgment, the present writ petition is at the instance of the landlord. 3. Heard Shri M. K. Gupta, learned Counsel for the petitioners and Shri Akshaiber Singh, learned Standing Counsel for the respondents. In spite of time granted to the learned Standing Counsel, no counter- affidavit has been filed in the writ petition. Since only a limited question is involved, and there being no factual controversy it was considered proper to dispose of the writ petition. 4. The main contention of the learned Counsel for the petitioners is that the power of the Appellate Court under section 22 of the Act is co-extensive with that of the prescribed authority. Evidence in these proceedings are led on affidavits. The submission is that instead of remanding the matter to the pre scribed authority, the Appellate Court should have taken the additional evi dence. The learned Standing Counsel, on the other hand, supports the impugned judgment. 5. I have given careful consideration to the respective submissions of the learned Counsel for the parties and perused the record. The submission is that instead of remanding the matter to the pre scribed authority, the Appellate Court should have taken the additional evi dence. The learned Standing Counsel, on the other hand, supports the impugned judgment. 5. I have given careful consideration to the respective submissions of the learned Counsel for the parties and perused the record. A bare perusal of the impugned judgment would show that there were only two issues before it. 6. The first issue was as to whether the value of the land under the build ing is to be included for the purposes of fixation of the rent as provided for under section 21 (8) of the Act. The contention of the tenant was that such land is li able to be excluded. However, the said contention did not find favour with the appellate authority and it was decided in favour of the landlord. The said point has attained finality as it has not been challenged any further by the re spondent tenant. The second point was with regard to the market value of the land beneath the building. The Court below is of the opinion that there is no adequate evidence in this regard on record. The present application for en hancement of rent was filed on 7. 2. 1994. The circle rate of the area which has been filed is of 15th April, 1994. It relates to the period subsequent to the filing of the application. 7. Shri Gupta, learned Counsel for the petitioners, submits that the peti tioners did not want to lead any evidence and they want to rely on the report of their valuer which is already on record. The Court was taken through the said report. A bare perusal of the report shows that the valuer has valued the land, the building and open land. In view of the stand taken by the landlord, it is not appropriate to sustain the order of remand. 8. Besides above, time and again, it has been said that a remand order should not be passed in a routine manner. Time, energy and money spent all go waste. The endeavour of Court should be to decide the cases finally. Resort to remand order should be taken only in exceptional circumstances when the Court is not in a position to decide the controversy itself. 9. Time, energy and money spent all go waste. The endeavour of Court should be to decide the cases finally. Resort to remand order should be taken only in exceptional circumstances when the Court is not in a position to decide the controversy itself. 9. Even otherwise also the order under appeal cannot be sustained. In P. Venkateswarlu v. Motor and General Traders, AIR 1975 SC 1409 the Apex Court has held that if a finding is required on a particular issue then the entire order of the Trial Court should not be set aside. A finding on the said issue may be called for from the Trial Court. 10. The Apex Court in Ashwihkumar K. Patel v. Upendra J. Patel and oth ers, AIR 1999 SC 1125 has held that the High Court should not ordinarily remand a case under Order XLI, Rule 23, C. P. C. to the Lower Court merely because it considered that the reasoning of the Lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various as pects of the case mentioned in the order of the Trial Court and considered whether the order of the Trial Court ought to be confirmed or reversed or modi fied. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in that case, such remand orders would lead to further delay and un certainly. Thus the remand by the High Court was not necessary. 11. Apex Court in P. Purushottam Reddy and another v. Pratap Steels Ltd. , 2002 (48) ALR 319 (SC) considered the powers of the Appellate Court as conferred on it under Order XLI, Rules 23, 23-A and 25 of the Civil Procedure Code. While setting aside the order of remand passed by the High Court, it has been laid down that the High Court was to examine whether such finding of the Trial Court was sustainable or not in eyes of law and on facts. While setting aside the order of remand passed by the High Court, it has been laid down that the High Court was to examine whether such finding of the Trial Court was sustainable or not in eyes of law and on facts. Even otherwise also the question could have been gone into by the High Court and a finding could have been recorded on the basis of available material inasmuch as the High Court being the Court of first appeal, all the question of fact and law arising in the case were open before it for consideration and decision. 12. Taking into consideration the fact that power of the Appellate Court is co-extensive with that of the prescribed authority and it can decide the ques tions of law and fact both, I find sufficient force in the submission of the learned Counsel for the petitioners that it was not a fit case where an order of remand should have been passed. Instead of passing a remand order, the Court should have given opportunity to the parties concerned to file such additional evi dence in support of their cases as they consider it fit and proper. 13. In this view of the mater, the writ petition succeeds and is allowed. The impugned order dated 17th January, 2007 is hereby set aside. Both the ap peals being appeal No. U. P. U. B. Appeal No. 2 of 2006 and U. P. U. B. Appeal No. 3 of 2006 are restored to their original numbers. The Appellate Court shall hear and decide the appeals preferably within a period of six months from the date of production of the certified copy of this order. However, before deciding the appeals, the Appellate Court shall give an opportunity to the parties to file evidence in support of their respective pleas with regard to the valuation of the land beneath the buildings. The parties may file their respective evi dence, if they so desire, within the time as may be fixed by the Court below. 14. The writ petition is allowed subject to the aforesaid directions. Petition Allowed. .