UTTAM SAH @ UTTIM SAHU v. BINDEHSWAR NAYAK & Ors

Defendant/Respondent 2nd party/Respondent 2nd Set For the Appellant : - Binod Kumar Singh, Adv. For the Respondents: - Shashi Shekha Dwivedi, Sr. Adv. ******** 7

14.05.2009 Heard counsel for the appellant and counsel for the respondents. The appellant is aggrieved by the judgment of the lower appellate Court whereby and whereunder the judgment of the trial Court has been set aside and the suit has been remitted back to the trial Court for rehearing on the issues suggested and also framed in the impugned judgment. Mr. Binod Kumar Singh, learned counsel 2 appearing on behalf of the appellant initially had submitted that when in an eviction suit the plaintiff-appellant had sought to get the premises evicted on two grounds namely, personal necessity and default in payment of rent and the lower appellate Court had found evidence existing on record, its approach of remitting the matter back to the trial Court would be plainly abuse of power under Order 41 Rule 23(A) of the Code of Civil Procedure. Mr. S.S. Dwivedi, learned Senior Counsel appearing on behalf of the defendants-respondents submits that the plea of default in payment of rent in fact, was already given up in the trial Court itself inasmuch as after the pleadings were filed by both the parties, even the issue on this crucial aspect was not framed as such when the trial Court had examined the entire evidence on the solitary ground of personal necessity and if the plaintiff-appellant wanted a decree also on the ground of default in payment of rent, the recourse taken by the lower appellate Court of remitting the matter back was fully 3 justified. In the opinion of this Court, as the plaintiff-appellant had filed no cross- appeal before the lower appellate Court, it must be held to be bound by the judgment of the trial Court so far it does not decide the question of eviction on the ground of default in payment of rent. Consequently, the lower appellate Court was also not required to go into this issue and remit the matter back for recording finding on the issue of default in payment of rent and to that extent Mr. Dwivedi, learned counsel for the defendant-tenant seems to be correct that the plaintiff, appellant herein should not have come to this Court. Mr. Singh, counsel for the appellant, however, contends that assuming that the plaintiff-appellant had given up the issue of default in payment of rent for seeking eviction, still his suit is maintainable to be adjudicated for the eviction on the ground of personal necessity. In this context, he would invite attention of this Court to the judgment of the trial Court wherein while adjudicating Issue No.6 4 relating to personal necessity all that has been recorded by the trial Court is as follows :- “6 oknh }kjk izfroknh ds fo:) fuLdklu okn izLrqr fd;k gS vkSj izfroknh us fookfnr ifjlj dk Lo;a ekfyd dgrs gq;s viuk LokfeRo dgrs gq;s fyf[kr dFku izLrqr fd;k gS bl fookn okn eqy la0 5 fuLdklu dk okn eqy izfroknh ds fo:) fu.khZr fd;k tk pqdk gS vkSj izfroknh vius dks Lo;a Lokeh dgrk gS ,slh fLFkfr esa vkaf”kd fu’dklu dk okn ewy dks izfroknh ds fo:) fopkj.k fd;k tkuk mfpr ugha gSa D;ksafd izfroknh vius dks fdjk;knkj ugha dgrk gS A ,slh fLFkfr esa okn eqy la[;k & 6 oknh fookfnr ifjlj ls fuLdkflr fd;k tkuk tkus dk vf/kdkjh gsS A okn ewy la0 6 oknh ds i{k esa fu.khZr fd;k tkrk gsS A” Referring aforementioned findings of the trial Court Mr. Singh invites attention to this Court in paragraph No. 15 of the judgment of the lower appellate Court which on the issue of personal necessity has given following findings:- “15. Admittedly, this suit has been brought on by the plaintiff personal necessity. This issue has been decided by the leaned Court below in para 6 of the impugned judgment. The para 6 of impugned judgment shows that not at all any evidence on the point of personal necessity has been discussed by the learned court below. He has simply given his finding plaintiff by holding that since the issue no. (v) i.e. issue related to the landlord and tenant between the parties has been decided in favour of the plaintiff landlord and defendant is tenant, plaintiff favour 5 in such condition, the plaintiff is entitled to get evict the defendant from the suit premises on the basis of his personal necessity. This is the whole finding on issue no. (vi). It is needless to say that when any issue like issue no.(vi) is framed, then it should be decided on its merit i.e. on the basis of evidence adduced by the parties on the issue. No doubt, the plaintiff has adduced one or two witness including himself on the point of personal necessity but that has not been discussed by the learned court below. If the view of the learned Court is accepted, then it may be said that every landlord is entitled to evict the tenant either there is personal necessity or not if the defendant fails to establish his defence, but law is not so, because the plaintiff has to stand on his own leg and he cannot take advantage of the weakness of the defendant. In this way, I find that finding of the learned court on this issue is not based on any evidence and so, the same is not correct.” It is by referring these two paragraphs of the judgment of the trial Court and lower appellate Court that Mr. Singh makes a point that when the lower appellate Court was itself convinced that when there was evidence on record on the issue of personal necessity and no further evidence was required to be taken from either party, the lower appellate Court instead of remitting 6 the matter back ought to have itself decided the issue of personal necessity instead of remitting the matter back to the trial Court. Mr. Dwivedi, learned Senior Counsel appearing on behalf of the defendants- respondents on the other hand, contends that had the lower appellate Court remitted the issue only on the question of personal necessity, its such approach of remand could not have been upheld but then when the lower appellate Court had the valid reasons to do so not only for adjudication, on the issue of relationship between the landlord and tenant as also eviction on the ground of default, its approach of remitting the matter back and also examining the issue of personal necessity in the light of evidence on record cannot be held to be incorrect. This Court having perused the material on record as also after hearing the parties is of the opinion that the lower appellate Court has committed a grave error in remitting the suit for fresh hearing on merit when it was in a position to decide the issues on the basis of evidence on 7 record. In fact it is well within the province appellate Court reappraise evidence, examine findings of the trial Court and decide the appeal on merit. This Court in the case of Aras Khan and others v. Ali Mian reported in AIR 1985 Patna 126 had held that “The legislature has entrusted a very important duty to the first appellate court, and it is for that court to decide finally all questions of fact on which the disposal of the suit might depend. In a case of reversal by the first appellate court, it is all the more important to consider reasoning of the trial court and only thereafter to give its reasons for not agreeing with the findings of the trial court. A perusal of the judgment must show that the lower appellate court has applied its mind to the evidence on record.” evidence An order of remand cannot be made mechanically by holding that though there were evidence on record yet the remand was necessary because the trial Court failed to consider the issues in the light of evidence on record Reference in this connection may also be made to the judgment of Apex Court in the case of K.KRISHNA REDDY AND OTHERS versus SPECIAL DEPUTY COLLECTOR, LAND ACQUISITION UNIT II, LMD KARIMNAGAR, ANDHRA 8 PRADESH reported in 1988(4)S.C.C 163 wherein it was held that “An order of remand should not be taken to be a matter of course. The power of remand should be sparingly exercised. There should always be an endeavour to dispose of the case by the appellate court itself.” It is for the aforesaid reason that this Court is not in a position to uphold the impugned judgment of the lower appellate Court and would accordingly, set aside the judgment of the lower appellate Court and remit it back for disposal of this appeal afresh in accordance with law. The lower appellate Court however, will not allow the plaintiff to raise any ground of default in payment of rent in seeking eviction and therefore only the two remaining issues will be required to be gone into afresh, namely:- (a) The relationship of landlord and tenant for which in paragraph No.14 of the judgment of the lower appellate Court has itself recorded that though there are evidence on this issue but they had not been correctly and properly appreciated by the trial 9 Court and (b) The personal necessity in paragraph No.15 of judgment of lower appellate Court wherein it has recorded a finding that the evidence on this issue is also available on record and the same was not at all looked into muchless discussed by the trial Court. The lower appellate Court is also directed to ensure that the appeal, keeping in view that the suit for eviction on the ground of personal necessity is of the year 2003, must be disposed of within a period of months receipt/production of a copy of this order. Both the parties are accordingly directed to appear before the lower appellate Court on Ist of June, 2009 and the period of six months would start running from the aforementioned date. With the aforesaid observations and directions this appeal to the extent indicated above is allowed but without any cost. Bibhash (Mihir Kumar Jha, J.)