1989 Supreme(MP) 674

IN THE HIGH COURT OF MADHYA PRADESH
R.C. Lahoti, J.
Virja - Applicant
Vs.
Jumma - Non-applicant
C.R. No. 156 of 1987 (G)
Decided On : 11-08-1989

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – S.23 – A – application for eviction – lies in respect of tenanted premises only – existing tenancy should be established prima facie.

       (2) Civil Procedure Code, 1908 – O.14, R.5 – additional issues framed – parties should be given opportunity to adduce evidence.

       (3) Civil Procedure Code, 1908 – O.41, R.25 – case remanded after framing additional issues – parties should be given opportunity to adduce evidence on those issues.

        Short Note

       The application under section 23 – A(a) makes an averment that the suit accommodation was purchased by the landlord/applicant under a registered deed of sale dated 10 – 2 – 1984 from his predecessor – in – title. It is further averred that the tenant/non – applicant has been in occupation of the accommodation for residential purpose at a monthly rent of Rs. 10/ – from the times of the predecessor landlord. The tenant denied holding premises as a tenant either of the landlord/applicant or of the predecessor. He also denied to have paid any rent to the landlord/applicant who claimed to have received two month's rent from the tenant/non – applicant for which a receipt was also passed and the counterfoil filed in the Court below.

       2. Held: At one point of time, the case had come up to this Court in Civil Revision No. 70/87 disposed of by order dated 10 – 7 – 1987. My learned brother Dr. T.N. Singh, J. examined the under – lying scheme of section 23 – A and several connected provisions, also examined the judicial authorities available till then and held that an application under section 23 – A would lie only in respect of premises which had been tenanted and in respect of which there existed a subsisting tenancy. Having extracted and examined the definitions of the terms "landlord" and "tenant" from the interpretation clause of the Act, it was held that the requirement of law for the landlord/applicant was to establish that the suit premises was a tenanted premises at the time when the application was filed, as an important pre – requisite and for authority's jurisdiction to be invoked in rendering a final decision. Vide para 13 of the order following two issues were framed : –

       "(a) Whether the landlord/applicant has established his prima facie case under section 23 – A of the Act and by proving that there was an "existing tenancy" in respect of the suit premises, from which eviction of the non – applicant could be ordered?

       (b) Whether the title to the suit premises of the applicant/landlord was seriously disputed and as such, the application made under section 23 – A being beyond the jurisdictional competence of the Authority, the plaint ought to be returned for filing in the appropriate civil Court for proof of title and for eviction on the basis thereof ?"

       The trial Court was directed to decide the issues framed, as preliminary issues before proceeding further.

       3. The matter reached the trial Court. There was no additional evidence recorded. The trial Court held that the title of the landlord/applicant to the house was disputed and, therefore, it had no jurisdiction to try the case. In drawing this inference, the trial Court was much impressed by the fact that the predecessor in title of the landlord/applicant was not examined and no evidence as to payment of rent by the tenant/non – applicant to the landlord/applicant was adduced.

       4. The learned counsel for the landlord/applicant, the revisionist, has submitted that the Rent Controlling Authority ought to have afforded opportunity of adducing evidence in absence whereof authority could not have recorded a finding against him. The learned counsel further submits that the counterfoil reciting payment of rent by the non – applicant to the applicant was filed before the authority below but the document was missing from the record and if only opportunity would have been afforded, he would have been able to demonstrate the loss of the copy and proved the existence and contents of the receipt by other evidence. There is substance in the submission.

       5. Jurisdiction of a subordinate Court or authority after an order of remand by superior Court depends on the order of remand. When a case is remanded for retrial, the whole case is reopened because an order of remand implies a reversal of the decision of the lower Court. Ordinarily. When issues are recast, amended or added, the parties have to be afforded an opportunity of adducing additional evidence unless restricted by the order or unless the, waive their right of adducing additional evidence. In the present case, the order of remand nowhere restricted the recording of additional evidence by the authority below nor did foreclose or take away the right of the parties in doing so. It is not at all difficult to comprehend that the parties at trial before framing of the additional issues would not have been so vigilant as to have adduced evidence on those issues which were not framed at all till then. In any case, I am convinced that the interests of justice require that parties ought to have an opportunity of adducing evidence on the additional issues framed earlier by this Court failing which a failure of justice is sure to be occasioned.

       6. The revision is allowed. The impugned order is set aside. The case is sent back to the authority below with a direction that the authority shall permit additional evidence and the parties shall have liberty of adducing such additional evidence as they chose to do on the two issues framed on 10 – 7 – 1987 by this Court. Needless to say, that while re – deciding the case before it the authority below shall bear in mind that the landlord/applicant has to establish an existing tenancy prima facie only and the title of the landlord/applicant must be seriously disputed and not barely denied to take away its jurisdictional competence. CR No. 70/87 referred to. Revision allowed.