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Madhya Pradesh High Court · body

2016 DIGILAW 1124 (MP)

Esrar Ahmed v. Rukmani Bai

2016-12-08

ALOK VERMA

body2016
ORDER 1. This Miscellaneous appeal filed under Order 43 rule 1 of CPC is directed against the order passed by the learned XI Additional District Judge in regular Civil Appeal No.28/2015 dated 31.3.2016 which was in its turn directed against the judgment and decree passed by the learned II Civil Judge, Class-II, Inodre in regular Civil Suit No.73-A/2014 dated 9.12.2014. 2. According to the relevant facts, the respondent here before this Court, is a tenant in the suit property, which was purchased by the present appellant from Satguru Prasad Shrivastava, Prakash Narayan Shrivastava and Shantidevi Shrivastava, through a power of attorney Mohd. Sayeed. The present appellant filed a suit for eviction against the respondent on the ground inter alia of bona fide requirement of the plaintiff and his family members. The suit was decreed by the learned Civil Judge and eviction decree was passed. Aggrieved by this judgment and decree, the first appeal was filed before the learned XI Additional District Judge. The learned Additional District Judge, allowed one application under Order 41 rule 27 of CPC and also application under Order 6 rule 17 of CPC and after allowing these two applications, the learned appellate Court set aside the judgment and decree passed by the learned Civil Judge and remanded the matter back for incorporating the amendment, framing of fresh issues, recording of fresh evidence and passing the judgment afresh. Aggrieved by this order of remand, this miscellaneous appeal is filed. 3. While allowing the application under Order 41 rule 27 of CPC, the learned appellate Court allowed certain documents, which showed that the suit property was situated in an area which was declared to be Gandi Basti under the M. P. Gandi Basti Kshetra (Sudhar Tatha Nirmulan) Adhiniyam, 1976 (hereinafter referred to as the ‘Act’ ) and, therefore, the additional documents were taken on record. The learned appellate Court also allowed an application under Order 6 rule 17 of CPC, by which it was sought to be added in the written statement that under the provisions of sections 20 and 21 of the aforesaid Act, the present suit was not maintainable. 4. The learned counsel for the respondent supports the order of remand passed by the learned appellate Court. 5. However, the learned counsel for the appellant submits that the remand was highly improper. 4. The learned counsel for the respondent supports the order of remand passed by the learned appellate Court. 5. However, the learned counsel for the appellant submits that the remand was highly improper. Even, when the two applications were allowed, the appellate Court was well within its power to decide the appeal, as it involved only the issue of law and not the issue of fact. 6. I have gone through the impugned order and find that the learned appellate Court committed error while remanding the matter back looking to the provisions under Order 41 rules 24 and 25 of CPC which reads as under :- “24. Where evidence on record sufficient, appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeds. 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; and 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].” 7. If, we apply these provisions in the present case, according to the provisions of the Act, a suit cannot be filed when an area is declared part of Gandi Basti under section 3 of the Act. It is further provided that if the suit was instituted prior to such declaration under section 3 of the Act, the decree obtained cannot be executed unless permission is granted by the competent authority. It is further provided that if the suit was instituted prior to such declaration under section 3 of the Act, the decree obtained cannot be executed unless permission is granted by the competent authority. These issues could be decided by the appellate Court without remanding the matter back. It may be further observed that in this matter, legal objections could have been taken by the respondent before the trial Court. However, the respondent failed to raise these issues before the trial Court and this aspect of the matter could have been taken into consideration by the appellate Court. 8. Accordingly, the order of remand is set aside. The judgment and decree passed by the trial Court is restored. The appellate Court is directed to frame necessary issues, after incorporating the amendment in the written statement and proceed in accordance with the provisions of Order 41 rules 24 and 25 of CPC. With observations as aforesaid, the matter stands disposed of.