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2010 DIGILAW 2954 (ALL)

Moti Lal v. Krishan Nandan

2010-09-23

RAKESH TIWARI

body2010
JUDGMENT Hon'ble Rakesh Tiwari, J. - Heard learned counsel for the parties and perused the record. 2. The petitioner is owner and landlord of shop no. 101/1 Jai Devi Market,Loi Bazar Brindavan, District Mathura. Respondent is the tenant of the aforesaid shop @ Rs.140/- per month. 3. Petitioner filed release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop in dispute on the ground of bonafide need of his son Rajeev Swami. 4. Respondent tenant contested the matter by filing written statement interalia that the petitioner has many accommodations in which he can easily establish the chamber for his son. The details of the accommodation said to be in possession of the petitioner are:- (A) Property No. 69, Mohalla Patharpura Brindavan District Mathura. (B) Property No. 70 Patharpura Brindavan, Mathura. (C) Property No. 71 Patharpura Brindavan, Mathura. ( D) Property No. 16, Patharpura Brindavan, Mathura. (E) Property No. 130 Govind Bagh Brindavan, Mathura. (F) Shop No. 101/2 and 101/3 Loi Bazar Brindavan, Mathura. It was also alleged by the tenant that on the first floor of the aforesaid shop one Hall was situated which was also available to the landlord and that apart from it Shop Nos. 101/5 and 101/17 were was purchased by the petitioner by sale-deed dated 2nd March, 2005 and shop Nos.101/14 and 101/16 were purchased by the petitioner by sale-deed dated 6.1.2004. 5. After hearing the parties, the Prescribed Authority considered the question of comparative hardship. He noted that the petitioner has not made any efforts to search any alternative accommodation .The Prescribed Authority found that comparative hardship also lies in favour of the landlord and allowed the release application vide his order dated 19.4.2007. 6. Aggrieved by the aforesaid order dated 19.4.2008, the tenant filed an appeal before the appellate court which was allowed vide order and judgment dated 19.4.2008, hence the instant writ petition. 7. The contention of learned counsel for the petitioner is that the appellate Court has heard the appeal and considered the matter and though has impliedly affirmed the bonafide need of the landlord but has illegally and erroneously allowed the appeal on the point of comparative hardship on the ground that the Prescribed Authority in his judgment has found that it is not believable that no shop is available to the tenant in District Mathura where the dispute pertains to shop in Brindavan.. 8. Sri Pramod Jain, learned counsel for the respondent has raised a preliminary objection that the appellate court has only remanded the matter and against a remand order no interference is required by this Court under Article 226 of the Constitution as the appellate court has only stated that the tenant has not made any efforts to look for alternative accommodation in Brindavan and that he has only made efforts in District Mathura. Thus, the appellate Court has failed to consider the fact that Brindavan also falls in Mathura and in fact that there is no illegality or infirmity in the orders impugned in the present writ petition. 9. Sri M.K. Gupta assisted by Smt. Rama Geol, learned counsel for the petitioner submits that the Appellate Court exercising power under Section 22 of U.P. Act No. 13 of 1972 is a court of law and fact both and can decide all the issues itself. It should not have remanded the case to the Prescribed Authority; that a remand order should not ordinarily be made merely because the Higher Court has considered some reasoning of the lower court to be wrong, hence the appellate court should have decided the appeal itself one way or the other; that unnecessary remand infuses life to the litigation and should be avoided, remand cannot be made unless the judgment is set aside i.e. the reasonings given by the lower court are reversed and that the remand cannot be made without setting aside the findings as well as the decree of the court below. 10. In support of aforesaid contention, he has placed reliance upon the following rulings. 1. 2009(2) ARC-154 Gayatri Devi versus State of U.P. 2. AIR 1999 SC-1125, Ashvini Kumar Patel versus Upendra J.Patel 3.2002(2) SCC-686, P. Purushottam Reddy and another versus Pratap Steels Ltd. 4.1998(2) ARC-115, Vishwanath Gupta versus Ist Additional District Judge and others. 11. Learned counsel for the petitioner further submits that in all the aforesaid cases remand orders were interfered with. It is not universal law that no remand order can be set aside. Remand, if made without considering the parameters laid down by the Apex Court in various judicial pronouncements, is improper exercise of judicial power and can always be corrected by this Court in exercise of its writ jurisdiction. It is not universal law that no remand order can be set aside. Remand, if made without considering the parameters laid down by the Apex Court in various judicial pronouncements, is improper exercise of judicial power and can always be corrected by this Court in exercise of its writ jurisdiction. Consequently, the impugned order of the appellate court dated 19.4.2008 is liable to be set aside as the appellate court has directed to the Prescribed Authority to decide the question on remand of the case, in the light of the judgment rendered by it. It is submitted that in the circumstances the Prescribed Authority has been left with no option but to decide as the appellate court desires. Hence, the court below may be directed to decide all questions itself within a fixed time. 12. According to learned counsel for the respondent, remand order is an interlocutory order as has been held in the judgments rendered in Keshardo Chamria versus Radha Kissen Chamria and others, Satyadhyan Ghosal and others versus Smt. Deorajin Debi and another, Kshitish Chandra Bose versus Commissioner of Ranchi, Balwant Singh versus Small Cause Revisional Court (District Judge), Nainital and others and Shantanand Chela Shambhu Dev versus Board of Revenue, Allahabad and others. Therefore, the remand order is permissible within the parameter of Order 41 Rules 23 and 23-A of C.P.C. It is stated that the appellate Court having jurisdiction on law and facts should remand the matter only if there is no adjudication required in the matter and that the order of remand passed by the appellate court is in the nature of an interlocutory order hence it is open to challenge in appeal up to Supreme Court from the final order. Therefore, the High Court has no jurisdiction under Sections 100 and 101 of C.P.C. to interfere with the concurrent findings of fact even if erroneous as in the instant case. 13. In the facts and circumstances of this case and considering the case laws on the point, this Court is not inclined to interfere in the matter under Article 226 of the Constitution. 14. 13. In the facts and circumstances of this case and considering the case laws on the point, this Court is not inclined to interfere in the matter under Article 226 of the Constitution. 14. On the joint request of learned counsel for the parties, the petition is disposed of finally with a direction to the Prescribed Authority to decide the question remanded by the appellate Court afresh by a reasoned and speaking order, in accordance with law within a period of two months from the date of production of a certified copy of this order without being influenced by the observations of the lower appellate court for deciding the question in the light of the appellate court judgment. The order and judgment to this extent is quashed. 15. No order as to costs. Petition Disposed Off.