Vivekanand Dey @ Vibekanand v. Manish Kumar Jayaswal s/o Late Pramod Kumar Jayaswal
2019-02-21
SUJIT NARAYAN PRASAD
body2019
DigiLaw.ai
ORDER : 1. This writ petition is under Article 227 of the Constitution of India wherein order dated 10.01.2019 in Eviction Title Suit No. 18 of 2009 passed by the Munsif, Ranchi is under challenge whereby and whereunder the additional documentary evidence sought for by the petitioner after remand of the matter by this Court under its revisional jurisdiction has been rejected. 2. It is the case of the petitioner that the eviction Title Suit has been filed by the landlord against the petitioner who happens to be the tenant of the land in question. The Trial Court has passed decree on 17.08.2018 under the provision of Section 14 read with Section 11(1) (c) of the Jharkhand Building (Rent Eviction and Control) Act, 2000 directing the petitioner to handover the possession of the suit premises within two months, revision has been preferred before this Court being Civil Revision No. 65 of 2015, the revisional court after taking into consideration and on the basis of factual aspect, has set aside the decree and remitted the matter to the court below for passing reasoned and speaking order, in view thereof, the matter on remand has again been restored in which the three petitions were filed by the petitioner/defendant on 15.12.2018 namely:- The first petition relates to seeking direction against the plaintiff to produce the document such as income tax return, balance sheet, statement of account, list of properties all tenancy agreement etc. Second is filed for recalling the order dated 18.02.2014 and permitting the defendant to lead additional evidence. The third one was under Order XVIII Rule 17 of the Code of Civil Procedure read with Section 151 of C.P.C. to recall P.W.-4 Manish Kumar Jaiswal for his cross-examination. The said application having been rejected vide order dated 10.01.2019, the instant writ petition has been filed under Article 227 of the Constitution of India. 3. The petitioner has taken the ground in assailing the aforesaid order that since the matter has been remitted, therefore, the entire proceeding is to be initiated afresh by allowing the petitioner with a liberty to adduce additional evidence for recalling the witnesses who have already been examined and to bring on record such documents by the plaintiff. The contention of the petitioner is that it is just and proper adjudication for the issue.
The contention of the petitioner is that it is just and proper adjudication for the issue. The learned counsel for the petitioner has relied upon the judgment rendered by the Hon’ble Apex Court in the case of Badami Devi (Smt) & Anr.Vs. Ambuja Raghvan (Smt) reported in (2001) 9 SCC 245 and judgment rendered by Punjab and Haryana High Court in the case of Mohan Lal Vs. Bhim Sain & Anr., reported in (2011) 2 PLR 377 . 4. Having heard learned counsel for the petitioner and after looking into the pleading made in this writ petition as also the impugned order, the factual aspect which is not in dispute in this case is that the Title Eviction Suit was filed wherein the decree of eviction was passed by the Trial Court dated 07.08.2015 in exercise of power conferred under Section 14 read with Section 11(1)(c) of the Jharkhand Building (Rent, Eviction and Control) Act, 2000 directing the petitioner/defendant to handover the vacant possession of the suit premises within two months. 5. The petitioner being aggrieved with the aforesaid judgment has invoked the jurisdiction of this Court by filing Civil Revision being C.R. No. 65 of 2015 wherein ground has been taken that the material document has not been appreciated while adjudicating the issue, the revisional court after taking note of the aforesaid fact has set aside the judgment passed by the Trial Court in the aforesaid eviction suit and remitted the matter to the court below for passing reasoned and speaking order. 6. This Court thinks it fit and proper to refer and extract the order passed by this Court under its revisional jurisdiction which reads as follows:- “7. It is abundantly clear from the impugned order that the court below has recorded that no documents have been filed on behalf of defendants. As per the certified copies of order-sheet brought on record on affidavit by the petitioner, it is explicit that the petitioner had filed the documents and the same were marked as exhibits. It appears that the court below while adjudicating issue no.5 & 6, has committed a manifest error in recording the finding that no documents have been filed. In the given facts and circumstances and for the ends of justice, it is deemed fit and proper to set aside the impugned judgment passed by the court below.
It appears that the court below while adjudicating issue no.5 & 6, has committed a manifest error in recording the finding that no documents have been filed. In the given facts and circumstances and for the ends of justice, it is deemed fit and proper to set aside the impugned judgment passed by the court below. The matter is remitted to the court below which shall pass a reasoned and speaking order on the basis of documentary evidence on record. ” It is evident from the order as referred above that while remitting the matter before the court below, the revisional court has directed the trial court to pass a reasoned and speaking order on the basis of documentary evidence on record. Thus it is evident that the revisional court while remitting the matter has not given any liberty to the petitioner to lead additional evidence or recall any witnesses or bring on record by himself or through plaintiff any further document. 7. It is not in dispute that if the higher Court while remitting the matter can grant liberty to the parties to come out with the further evidence or documents etc., then the Trial Court is duty bound to follow the same, but here in the instant case the revisional court has not given any liberty to the petitioner rather it has specifically stated that the fresh order is to be passed on the basis of documentary evidence on record, the said observation is very explicit, meaning thereby, no further document needs to be allowed by the Trial Court. Otherwise also the meaning of remand itself is clear that the fresh order is to be passed on the basis of the document already available on record. It is for the reason that when the higher court set aside the order passed by the Subordinate Court on the basis of non-consideration of any of the document, the subordinate court is required to consider the aforesaid aspect of the matter and to pass a fresh order. 8.
It is for the reason that when the higher court set aside the order passed by the Subordinate Court on the basis of non-consideration of any of the document, the subordinate court is required to consider the aforesaid aspect of the matter and to pass a fresh order. 8. Learned counsel for the petitioner has relied upon the judgment rendered by the Hon’ble Apex Court in the case of Badami Devi (Smt) (supra)and MohanLal (supra), but the factual aspect involved in the said case is quite different from the instant case since in the aforesaid judgment by Hon’ble Apex Court, the Hon’ble Apex Court has accorded liberty to the landlord to file rebuttal evidence, if any, to the new material produced, but here in the order passed by the revisional Court, there is no such observation made therein, therefore the said judgment is not applicable in the facts and circumstance of the instant case. 9. So far as the judgment relied upon by the petitioner rendered by the Hon’ble High Court of Punjab and Haryana in the case of Mohan Lal(supra)wherein by putting reliance upon Paragraph 17 of the aforesaid judgment it has been submitted that on procedure or the technicality an adequate opportunity is not to be deprived, the factual aspect leading in the said case of the petitioner of remand, it is not in dispute that the procedure, rule cannot come in the proper adjudication of the issue but the thing is that the duty of the Subordinate Court on remand which is the question which falls for consideration in this case, as has been stated hereinabove that since the revisional court has directed the Trial Court to pass a reasoned and speaking order on the basis of documentary evidence on record, meaning thereby, no further document will be allowed to be inserted in the proceeding. 10. The Trial Court after taking into consideration the order passed by the revisional Court, has rejected the aforesaid applications and as such in the considered view of this court, on the basis of reasons above, it is not a case where the interference is required in exercise of power conferred under Article 227 of the Constitution of India, which is only revisable in nature to look into the error on record or such jurisdictional error, but no such ground is available here. 11.
11. In view thereof, this writ petition lacks merit, accordingly, stands dismissed.