Dineshchandra vs Kamlabai - 1996 Supreme(MP) 1066

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellants : S.D. Sanghi and N.K. Sanghi.
For the Respondent: A.L. Ahiwasi.

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – S. 13 (1) and 13 (6) – provisions under S. 13 (1) not complied with – defence of tenant rightly struck out.
       (2)Civil Procedure Code, 1908 – O.41 R.27 – documents already on record of trial Court – no provision for filing additional evidence can be invoked.
       (3)Civil Procedure Code, 1908 – O.41 R.23 and 23A – remand order – cannot be passed to fill up lacuna.
        Short Note
       1. Plaintiff is the appellant in this Misc. Appeal presented under Order XLIII Rule 1 (u) of the Code of Civil Procedure (for short the Code) against the judgment dated 18.4.1990 passed by First Additional Judge, Barwani to the Court of District Judge, Mandleshwar in Civil Regular Appeal No. 24 – A/84 thereby dislodging the judgment and decree passed by Civil Judge, Class – I, Barwani in C.O.S. No. 46 – A/78 on 3.5.1984 and remanding the matter back to the trial Court for fresh decision in conformity with law.
       2. Briefly stated, the facts of the case are that the appellant filed the suit for eviction, recovery of rent and mesne profits against the respondents on the footing of tenancy. The respondents did not comply with the provisions of section 13(1) of the M.P. Accommodation Control Act, 1961. The defence was, therefore, struck out in terms of section 13 (6) of the aforesaid Act. After trial, the Trial Court decreed the suit. Against the judgment and decree, decreeing the suit, respondent nos. 1 and 2 filed the aforesaid civil regular appeal which was allowed in part on 18.4.1990 and order of remand was passed. Aggrieved, appellant – plaintiff has filed this Misc. Appeal.
       3. I have heard Shri S.D. Sanghi, learned senior counsel with Shri N.K. Sanghi, for the appellant and Shri S.L. Ahiwasi, learned counsel for respondent nos. 1 and 2. None appeared for respondent no. 3.
       4. The counsel for the appellant submitted that the order of remand is without jurisdiction and that the decree passed by the trial Court was not liable to be dislodged in this manner. The counsel for respondent nos. 1 and 2, on the other hand, supported the order of remand.
       5. In para 9 of the judgment under challenge, the first appellate Court formulated the under noted four points for determination: –
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       6. It is contended that the document sought to be introduced viz. application under Order XLI Rule 27 of the Code was already on the record of the trial Court and as such there was no justification to file an application and to fill up the lacuna. It is also contended that in the face of non – compliance of section 13 (1) of the aforesaid Act, the trial Court had no option but to strike out the defence in terms of section 13 (6) of the Act. It is also contended that there was no question of considering the impact of another proceedings.
       7. The order does not reflect as to why it became necessary to remand the case for fresh decision. In my view such short cuts which often prove to be wrong cuts should be shunned and spurned. When the document was already on record, there was no question of invoking Order XLI Rule 27 of the Code without showing refusal to admit. It is also the position of law that in a suit between landlord and tenant, tenant is required to deposit the rent and in the event of dispute as regards entitlement, provisions under section 13 (3) of the Act could have been invoked.
       8. However, as I feel persuaded to dislodge the judgment of remand, I do not deem it proper to express any definite opinion on the merits of the matter. For the purpose of the disposal of this appeal, it is sufficient to say that the points chronicled in para 9 of the order under challenge are not sufficient to dislodge the judgment and decree and to order remand.
       9. The counsel for respondent nos. 1 and 2 was unable to satisfy me as to the remand became necessary. The first appellate Court was required to consider the merits of the matter and should have decided the appeal one way or the other in conformity with law.
       10. Lacuna, if any, cannot be permitted to be filled in State of U.P. vs. Manbodhan Lal Srivastava, AIR 1957 SC 912.
       11. In the result, I allow this Misc. Appeal, vacate the judgment dated 18.4.1990 and direct to the first appellate Court to restore Civil Regular Appeal No. 24 – A/84 under its original number and to decide the same afresh after hearing the parties in conformity with law.
       12. However, I make no order as to costs.
       13. Parties shall appear before the first appellate Court on 9th September, 1996 to take further orders in the matter. As the appeal is quite old, it is further directed that the first appellate Court shall make an endeavour to decide the appeal by 31st December, 1996. Record shall be returned immediately.