Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 614 (PAT)

Hari Nandan Pd. v. Durgi Patel @ Durgi Mahton

2014-05-15

AMARESH KUMAR LAL

body2014
ORDER 1. The plaintiffs-appellants have preferred this appeal against the judgment and order dated 12.02.2013 passed by the learned 1st Additional District Judge, Khagaria in Title Eviction Appeal No. 32 of 2011 by which the judgment dated 5.11.2011 and decree dated 19.11.2011 passed by learned Munsif, Khagaria in Title Eviction Suit No. 4 of 2006 has been set aside and the case has been remanded to the learned Munsif for deciding the case after taking additional evidence on the issues framed by the learned appellate court. 2. The plaintiffs-appellants filed Title Eviction Suit No. 4 of 2006 for a decree of eviction of the defendant-respondent from the suit premises on the ground of default in payment of more than two months arrears of rent and on the ground of personal necessity and a decree for arrears of rent from January, 2006 to August, 2006 to be recovered from the defendant-respondent and to be paid to the plaintiffs-appellants. 3. The defendant contested the case and denied the relationship between landlord and the tenant and further asserted that the Kirayanama was forged. The defendant has claimed that he has purchased the suit premises and the plaintiffs have no concern whatsoever with the suit property. 4. After framing of issues and after considering the evidence adduced on behalf of both the parties, the suit was decreed. Thereafter, defendant filed Title Eviction Appeal No. 32 of 2011. At the time of final hearing, a petition dated 1.12.2012 was filed on behalf of the defendant-appellant under Order 41 and Section 151 of the Code of Civil Procedure mentioning therein that the trial court has not considered the point of partial eviction and Kirayanama (Ext.2) is the forged document and it is necessary to test the genuineness by an Expert and he is ready to bear the expense and lastly, prayed to remand the case in the court below for deciding the suit afresh. 5. Learned counsel for the appellants submitted that the impugned order has not been passed in accordance with law. The order of remand has been made without any jurisdiction. 6. He has also submitted that after considering the evidence adduced on behalf of both the parties, learned Munsif has come to the finding that there is existence of relationship of landlord and tenant between the plaintiff and the defendant. The order of remand has been made without any jurisdiction. 6. He has also submitted that after considering the evidence adduced on behalf of both the parties, learned Munsif has come to the finding that there is existence of relationship of landlord and tenant between the plaintiff and the defendant. The appellate court below has failed to take into consideration the facts that the plaintiff had filed a petition dated 29.8.2011 before the learned Munsif for examination of signature of the defendant on the Kirayanama which was resisted by the defendant who refused to give specific signature for the purpose of examination and verification of his signature by an expert on frivolous ground that the affixed signature on Kirayanama was not his signature and as such an adverse inference could rightly be drawn against him. In support of his contention, he has relied upon a decision in the case of Union of India vs. Ibrahim Uddin & Another, 2013 (1) PLJR 48 (SC). 7. He has further submitted by referring paragraph 13 of the impugned judgment that the petition dated 1.12.2012 filed on behalf of defendant-respondent no. 1 under Order 41 and Section 151 of Civil Procedure Code has been considered prior to hearing the appeal in which it was contended that the learned Munsif has not decided on the point of partial eviction which is a mandatory requirement of law and Ext. 2, the Kirayanama is a forged document which does not bear the signature of defendant-respondent. He has further submitted that the suit was filed for decree of eviction on the ground of default in payment and personal necessity. Since it has been held that there has been default in payment of rent, as such there was no requirement to consider the point whether the partial eviction was required or not. Learned Appellate Court has further directed to take additional evidence which was also not required. Since the appellate court has not considered the appeal on merit and has not held that the court was enable to pronounce judgment, on this score also the impugned order is liable to be set aside. 8. He has further submitted that the appellate Court should have decided the matter and the power of remand should not ordinarily be exercised merely because in its view the reasoning of lower court in some aspect was wrong. 8. He has further submitted that the appellate Court should have decided the matter and the power of remand should not ordinarily be exercised merely because in its view the reasoning of lower court in some aspect was wrong. In support of his contention, he has relied upon the decision in the case of Ashwinkumar K. Patel vs. Upendra J. Patel & Others, AIR 1999 SC 1125 . 9. Learned counsel for defendant-respondent has submitted that the point of partial eviction the prayer for realization of rent have not been considered by the learned Munsif. Since there was no consideration of partial eviction under Section 11(1)(c) of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, which is mandatory requirement of law, learned appellate court below has rightly remanded the matter to learned Munsif. In support of his contention, he has relied upon a decision in the case of Bhola Prasad Sah & Others vs. Ram Dhani Prasad & Others, 2004 (1) PLJR 462 . In this case there was also prayer for realization of arrears of rent but no direction has been given by the learned Munsif on this point. 10. He has further submitted that learned appellate court has rightly remanded the case under Order 41, Rule 25 CPC. The Kirayanama is an important document in this case which has been sent to the expert by learned Munsif in view of the direction of learned appellate Court below. More than one year has passed after passing of the impugned order. 11. After hearing learned counsel for both the parties and on perusal of the impugned judgment, it appears that the appellate court below has considered the argument on behalf of both the parties and has considered that there is requirement of certain clarification and has framed three issues:- (i) Whether the partial eviction of the suit premises can satisfy the personal necessity? (ii) Whether the Kirayanama (Ext. 2) is a genuine document? (iii) Whether the plaintiff is entitled for arrears of rent? 12. These aspects have not been decided by the learned Munsif although there was pleading on behalf of both the parties. The defendant has also challenged the genuineness of Kirayanama (Ext. 2) before the learned Munsif. The genuineness of Kirayanama was not examined by an expert in view of the prayer made by the plaintiff and the defendant. 12. These aspects have not been decided by the learned Munsif although there was pleading on behalf of both the parties. The defendant has also challenged the genuineness of Kirayanama (Ext. 2) before the learned Munsif. The genuineness of Kirayanama was not examined by an expert in view of the prayer made by the plaintiff and the defendant. The Kirayanama could have been sent to an expert to examine its genuineness. In the case of Union of India vs. Ibrahim Uddin & Another, 2013 (1) PLJR 48 (SC) it has been held in paragraph 17 that the first appellate Court or High Court should not draw any adverse inference against the appellant. It is better to quote paragraph 17. "17. In the instant case, admittedly, the plaintiff/respondent no. 1 during the pendency of his suit had made an application before the authorities under the control of the appellant/ defendant no. 1 to make the inspection. However, he was not permitted to have any inspection. The plaintiff/respondent no. 1 did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order XI CPC. In such a fact-situation, in view of the law referred to hereinabove, it is not permissible for the first appellate court or the High Court to draw any adverse inference against the appellant/defendant no. 1." 13. In my view, the aforesaid decision is not applicable in the facts and circumstances of this case. 14. Learned counsel for respondent has submitted that learned Appellate Court has passed the impugned order under Order 41, Rule 25 CPC which is reproduced herein-below:- Order XLI, Rule 25 – Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required. Such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor (within such time as may be fixed by the Appellate Court or extended by it from time to time.) 15. From perusal of this provision, it appears that appellate Court may frame issues and referred the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required and such Court shall proceed to try such issues and shall return the evidence to the Appellate Court together with its finding thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time. Under this provision, the appellate Court is required to frame issues and take evidence and the finding of the trial court and after taking such evidence and finding the appellate Court has to decide the matter, but in this case the appellate Court has framed issues and directed the trial Court to take additional evidence but the whole judgment of the trial court has been set aside and the appeal has been disposed of, which is not in accordance with this provision. It is settled principle of law that the power of remand should not ordinarily be exercised merely because in its view the reasoning of the lower Court in some aspect is wrong. Such remand order lead to unnecessary delay and cause prejudice to the parties of the case as it has been held in the case of Ashwinkumar K. Patel vs. Upendra J. Patel & Others, AIR 1999 SC 1125 . Paragraph 7 of the aforesaid judgment is important to be quoted here:- "7. In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, CPC 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. 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 aspects 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 modified. 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 this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary." 16. In view of the facts and circumstances of this case, in my opinion, the impugned order is not fit to be sustained. It is set aside except framing of issues as mentioned in paragraph 18 of the impugned order. The learned Appellate Court will receive additional evidence and finding thereon of the learned Munsif and on the aforesaid issues and thereafter give opportunity to both the parties and will decide the matter expeditiously without giving any unnecessary adjournments to either of the parties, since the suit was also filed on the ground of personal necessity of the plaintiffs. 17. With the aforesaid observation and direction, this appeal is allowed. 18. Parties will bear their own costs.