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Madhya Pradesh High Court · body

2011 DIGILAW 1107 (MP)

Balkrishna v. Somnath through L. Rs

2011-09-20

N.K.MODY

body2011
JUDGMENT : Beingaggrieved by the judgment dated 13-1-2006 passed by District Judge, Ujjain in Civil Appeal No. 38-A/05 whereby the judgmentdated 13-5-2005 passed by IV Civil Judge Class I, Ujjain in Civil Suit No. 129-A/02 whereby the suit filed by the appellant was decreedunder Section 12(1) (f) of the Accommodation Control Act (which shall bereferred hereinafter as "the Act") was set aside and the case wasremanded with a direction to re-frame additional issue and decide the same onmerits, the present appeal has been filed. 2.Short facts of the case are that appellant filed a suit for eviction againstthe respondent alleging that respondent was tenant in the suit accommodation @ Rs . 55/-per month. It was alleged that appellant requiresthe suit accommodation bonafidely for carrying on thebusiness of appellant himself and his son Jitendra .In the suit it was alleged that after eviction appellant shall reconstruct thehouse which includes the suit shop for which appellant is having sufficientfunds and has also obtained permission from the Municipal Corporation. It wasprayed that decree of eviction be passed. The suit was contested by therespondent. The tenancy was not denied in the written statement, however, itwas denied that appellant is entitled for decree of eviction as alleged by theappellant. It was prayed that suit be dismissed. After framing of issues andrecording of evidence learned Trial Court decreed the suit against which anappeal was filed by the respondent which was allowed and the case was remanded,against which the present appeal has been filed. 3.Mr. V.P. Saraf , learned Counsel for appellant argued at length and submitsthat impugned judgment is illegal and deserves to be set aside. It is submittedthat appellant has not prayed for decree of eviction under Section 12 (1) (h)of the Act regarding reconstruction of house but prayed eviction on the groundof bonafide requirement. Learned Counsel submits thatappellant makes a declaration in the Court that appellant is not claimingdecree under Section 12 (1) (h) of the Act but the appellant is claiming decreeunder Section 12 (1) (0 of the Act. Learned Counsel placed reliance on adecision in the matter of Ashok Vs. Shakuntala Bai , 2005 (I) MPACJ136, wherein this Court has held that requirement of Section 12 (1) (h) is tobe complied with only when the ground is taken under Section 12 (1) (h) but nototherwise. Learned Counsel placed reliance on adecision in the matter of Ashok Vs. Shakuntala Bai , 2005 (I) MPACJ136, wherein this Court has held that requirement of Section 12 (1) (h) is tobe complied with only when the ground is taken under Section 12 (1) (h) but nototherwise. Learned Counsel submits that since the decree as prayed is underSection 12 (1) (f) of the Act therefore, requirement of Section 12(1) (h) wasnot required to be complied with or proved and also there was no necessity toframe separate issue in this regard. Learned Counsel further placed reliance ona decision in the matter of T.R. Sah Vs. Smt . Kundan Kaur and others, 2005(4) M.P.H.T. 304 (DB) = 2006 (I) MPACJ 68, wherein landlordpleaded that he required the premises bonafidely foroccupation of himself and his family; he also stated that premises was in adamaged condition and required repairs it was held that averments relating todismantling the roof and its reconstruction, it is not an independent groundbut a part of the ground under clause (e); he establishes a case for evictionunder Section 12(1) (e), he will be entitled to an order under Section 12 (1)(e); in such an even it will be immaterial whether he demolishes the buildingor not; when a Court grants an eviction under clause (e), it shall dispose ofthe claim under clause (h), as having become in fructuous or renderedredundant. On the strength of aforesaid position of law, learned Counselsubmits that appeal be allowed and impugned judgmentbe set aside. 4.Learned Counsel for respondents submits that appeal filed by the appellantitself is not maintainable. Learned counsel submits that order of remand can bepassed under Order XLI Rules 23, 23-A and 25, CPC. Learned Counsel submits thatorder of remand can be passed under Order XLI Rule 23, CPC only when the suithas been decided on preliminary issue. Since the suit was decided on meritstherefore remand could not have been ordered under Order XLI Rule 23, CPC. Sofar as Rule 23-A is concerned, learned Counsel submitsthat power can be invoked by the Appellate Court when the suit has been decidedby the learned Trial Court otherwise than on a preliminary point. LearnedCounsel submits that in the facts and circumstances of the case when the suitwas decreed on merits, therefore powers could not have been invoked by theAppellate Court under Order XLI Rule 23-A, CPC. LearnedCounsel submits that in the facts and circumstances of the case when the suitwas decreed on merits, therefore powers could not have been invoked by theAppellate Court under Order XLI Rule 23-A, CPC. It is submitted that powershave been exercised by the Appellate Court under Order XLI Rule 25, CPC and theorder of remand passed under Order XLI Rule 25 is not appeal able. It issubmitted that only on this ground the appeal deserves to be dismissed. LearnedCounsel submits that from the pleadings it is evident that suit as filed by theappellant before learned Trial Court was for a decree of eviction under Section12 (1) (f) and 12 (1) (h) of the Act. Appellant has pleaded all the ingredientsfor a decree under Section 12(1) (h) coupled with Section 12 (1) (f) of theAct. Evidence was also adduced by the appellant in that regard and also casewas argued by the appellant under Section 12 (1) (h) of the Act, therefore, inthe facts and circumstances of the case it is wrong to say that suit was filedunder Section 12 (1) (f) of the Act. It is submitted that in the facts andcircumstances of the case no illegality has been committed by the AppellateCourt in passing the impugned judgment. Pressing to the maintainability ofappeal, learned Counsel submits that order filed before this Court ismaintainable. For this contention, learned Counsel placed reliance on adecision in the matter of Rajinder Singh Vs. Pushpa Devi Bhagat ,AIR 2004 Delhi 227, wherein order setting aside decree of Trial Judge and remandingcase for decision on merits, it was held that appeal from such orders fallswithin category of 'appeal from order' as described in Order 43 Rule 1 (u) andappeal is maintainable. It was further observed that its description byRegistry as first appeal or second appeal is of no consequence. 5.It is submitted that in the facts and circumstances of the case, appeal filedby appellant be dismissed. OrderXLI Rules 23, 23-A and 25, CPC read as under : - "R. 23. It was further observed that its description byRegistry as first appeal or second appeal is of no consequence. 5.It is submitted that in the facts and circumstances of the case, appeal filedby appellant be dismissed. OrderXLI Rules 23, 23-A and 25, CPC read as under : - "R. 23. Remand of case by Appellate Court.- Where theCourt from whose decree an appeal is preferred has disposed of the suit upon apreliminary point and the decree is revered in appeal, the Appellate Court may,if it thinks fit, by order remand the case, and may further direct what issueor issues shall be tried in the case so remanded, and shall send a copy of itsjudgment and order to the Court from whose decree the appeal is preferred,which directions to re-admit the suit under its original number in the registerof civil suit, and proceed to determine the suit; and the evidence (if any)recorded during the original trial shall, subject to all just exceptions, beevidence during the trial after remand. R.23-A. Remand in other cases.-r- Where the Court from whose decree an appeal ispreferred has disposed of the case otherwise than on a preliminary point, andthe decree is reversed in appeal and a re­trial is considered necessary, theAppellate Court shall have the same powers as it has under Rule 23. 25.Where Appellate Court may frame issues and refer them for Trial to Court whosedecree appealed from.- Where the Court from whose decree the appeal ispreferred has omitted to frame or try any issue, or to determine any questionof fact, which Appears to the Appellate Court essential to the right decisionof the suit upon the merits, the Appellate Court may, if necessary, frameissues, and refer the same for trial to the Court from whose decree the appealis preferred, and in such case shall direct such Court to take the additionalevidence required; and such Court shall proceed to try such issues, and shallreturn the evidence to the Appellate Court together with its findings thereonand the reasons therefore (within such time as may be fixed by the AppellateCourt or extended by it from time to time). 6.Prior to insertion of Rule 23- A it was only Rules 23and 25 of CPC in which the Court was empowered to remand the case. 6.Prior to insertion of Rule 23- A it was only Rules 23and 25 of CPC in which the Court was empowered to remand the case. Under Rule23 of CPC remand is possible only when the suit is decided on preliminary issuewhich is appeal able under Order 43 Rule 1, CPC but if the order of remand ispassed where the suit is decided on merits then it was the order under Rule 25,CPC against which no Miscellaneous Appeal is provided. 7.Rule 23-A has been inserted by the Code of Civil Procedure in Amendment Act,1976 (104 of 76) w.e.f . 1-2-77 . Under this Rule, a suit will be remanded to the Lower Court even though such Court has disposed of thecase on merits and not merely on a preliminary point. In the facts and circumstancesof the case, this Court is of the view that the preliminary objection raised bythe respondent about the maintainability of the appeal is not tenable. LearnedAppellate Court no remanded the case in exercise of the powers conferred byRule 23-A of CPC against which Miscellaneous Appeal is provided under Order 43Rule 1, CPC. 8.So far as merits of the case are concerned, right from the beginning the caseof the appellant is that the appellant requires the suit accommodation forcarrying on the business for his son bonafidely , forwhich appellant has pleaded full facts and adduced evidence to the effect thatappellant has got the estimate prepared and the appellant is having sufficientfunds. Before this Court also learned Counsel for the appellant has made adeclaration that the appellant does not want a decree under Section 12 (1) (h)of the Act. It is also declared that appellant is praying for the decree ofeviction under Section 12(1 )( f)of the Act. In thefacts and circumstances of the case when the appellant is praying for thedecree under Section 12 (1) (f) of the Act only, there was no justification onthe part of learned Appellate Court to remand the case with a further directionto frame the additional issue regarding entitlement of the appellant for adecree under Section 12 (1) (h) of the Act. An unwarranted order of remandgives the litigant and undeserved lease of life and therefore, must be avoided.In view of this, the appeal filed by the appellant is allowed. Impugned judgmentpassed by learned Appellate Court is set aside. Case is remanded back tolearned Appellate Court to redecide the appeal onmerits. An unwarranted order of remandgives the litigant and undeserved lease of life and therefore, must be avoided.In view of this, the appeal filed by the appellant is allowed. Impugned judgmentpassed by learned Appellate Court is set aside. Case is remanded back tolearned Appellate Court to redecide the appeal onmerits. 9.Parties are directed to remain present before learned Appellate Court on 10-10-2011 . Noorder as to costs.