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2015 DIGILAW 904 (RAJ)

LRs of Mukhtiyar Khan v. Bajranglal Garg

2015-04-22

ARUN BHANSALI

body2015
JUDGMENT : Arun Bhansali, J. This writ petition has been filed by the petitioners aggrieved against order dated 04.03.2015 passed by the First Appellate Court, whereby, the application filed by the petitioners under Order 41, Rule 25 CPC has been rejected. 2. Facts in brief may be noticed thus : plaintiff - Bajrang Lal filed a suit under the provisions of Transfer of Property Act, 1882 ('the Act') against the petitioners seeking eviction from the suit shop; the suit was resisted by the petitioners-defendants; however, the trial court by its judgment and decree, decreed the suit filed by the respondent. 3. Feeling aggrieved, the petitioners filed an appeal before the District Judge, Sirohi. 4. During the pendency of the appeal, the petitioners filed an application under Order 41, Rule 25 read with Section 151 CPC, inter alia, contending that the trial court had not framed issues pertaining to the landlord tenant relationship between the plaintiff and the defendants and whether in absence of notice terminating the tenancy to all the legal representatives of Mukhtiyar Khan the suit was not maintainable and, therefore, the issues may be framed and opportunity may be granted to the appellants to prove the same. 5. The application was opposed by landlord - respondent. 6. After hearing the parties, the trial court came to the conclusion that in the written statement the defendants have in para 1 accepted the plaintiff as landlord and the defendants as legal heirs of Mukhtiyar Khan and, therefore, there was no reason for framing the issue; further, the appellate court was also of the opinion that there was no necessity of giving notice to all the legal representatives of the deceased Mukhtiyar Khan and, consequently, dismissed the application. 7. It is submitted by learned counsel for the petitioners that the appellate court was not justified in dismissing the application filed by the petitioners; it was submitted that the issues as proposed by the petitioners under Order 41, Rule 25 CPC arose in the suit based on the pleadings of the parties, which were not framed by the trial court and, therefore, the appellate court should have framed the said issues and remanded the matter to the trial court for deciding the same; the appellate court fell in error in recording the findings on the said issues, which has resulted in grave injustice to the petitioners. 8. 8. It was submitted that the material available on record clearly indicates that there was neither any landlord tenant relationship between the parties nor the notice issued to the defendants was a proper notice and, consequently, even the findings on merit cannot be sustained. 9. The respondent No. 1 - present in person supported the order passed by the First Appellate Court; it was submitted that the present application has been filed merely with a view to delay the disposal of the appeal by the Appellate Court; it was submitted that the issues framed by the trial court encompasses the issues proposed by the petitioners and the finding has already been recorded by the trial court and, therefore, the order passed by the Appellate Court does not call for any interference. 10. I have considered the submissions made on behalf of both the parties and have perused the material placed on record. 11. At the outset it may be observed that filing of application purportedly under Order 41, Rule 25 CPC with a prayer to frame issues and remand the matter to the trial court, is not envisaged under the scheme of Order 41 CPC. 12. Under the provisions of Order 41, which deal with appeal from original decrees, Rule 23 provides regarding remand of case by Appellate Court, where a suit has been disposed of upon a preliminary point and the decree is reversed in appeal; Rule 23A deals with remand in other cases, where the trial court has disposed of the case otherwise than on a preliminary point and a re-trial is considered necessary; Rule 24 provides that where evidence on record is sufficient, the Appellate Court may determine the case finally after resettling the issues, if necessary; Rule 25 deals with circumstance, wherein the appellate court can frame issues and refer them for trial to the Court whose decree has been appealed from, wherein, it is of the opinion that the trial court has omitted to frame or try any issues, or to determine any question of fact which is essential for the right decision of the suit on merits; Rule 26 provides for findings and evidence to be placed on record of the Appellate Court and opportunity to file objections to the finding before the Appellate Court pursuant to the remand under Rule 25 CPC. 13. 13. A bare look at the provisions from Order 41, Rule 23 to Order 41, Rule 26A CPC would reveal that the said provisions are enabling provisions, wherein, if on hearing of the appeal, the Appellate Court is faced with any of the circumstance as indicated under Rule 23 to Rule 25, it can exercise the power of remand; the provisions cannot be invoked by the party seeking a piecemeal decision by the Appellate Court during the pendency of the appeal i.e. it is only based on the grounds raised in the appeal and submissions made before the Appellate Court, if the Appellate Court during final hearing of the appeal, on the material available before it comes to the conclusion that the circumstance as indicated in Rules 23 to 25 are available/exists, it can exercise the power; any of the parties during the course of pendency of the appeal by filing application cannot seek a remand based on the availability of circumstances as indicated under Rules 23 to 25; the appellant is required to make out a case in the memo of appeal/during course of arguments for invoking powers under any of the Rules for remand of the matter. 14. In that view of the matter, the application filed by the petitioners under Order 41, Rule 25 CPC itself was an exercise in futility and was not maintainable during the pendency of the appeal; the plea sought to be raised in the application could have been raised by the petitioners while making submissions on merits at the final hearing of the appeal and where after it was open for the Appellate Court to exercise/decline to exercise powers under Order 41, Rule 25 CPC. 15. The Appellate Court also apparently fell in error in on the one hand coming to the conclusion that the issues sought to be projected by the petitioners do not arise for determination and on the other hand simultaneously recording a finding on the issues sought to be projected by the petitioners; if in the opinion of the First Appellate Court the issues projected were already part of the existing issues and/or the same did not arise for consideration, the Appellate Court should have stopped there only and it was not required of the Appellate Court to record finding on merits of the issues sought to be projected by the petitioners. 16. 16. In this view of the matter, as the application filed by the petitioners under Order 41, Rule 25 CPC seeking a piecemeal decision of the appeal itself was not maintainable, it cannot be said that the first appellate court committed any error in dismissing the application filed by the petitioners; however, it would be open for the petitioners to make submissions on all the grounds at the time of final hearing of the appeal and the Appellate Court without being prejudiced by its order dated 04.03.2015 would decide the appeal on merits and it would also be open for the Appellate Court to exercise the powers under the provisions of Rules 23 to 25 of Order 41, if the circumstances of the appeal so require. 17. With the above observations and directions, no case for interference is made out in the present writ petition and the same is, therefore, dismissed. The stay petition is also dismissed. Petition Dismissed.