Madhya Pradesh High Court

Smt. Indra Jain vs Guddi Bai on 2 December, 2021

Author: Satish Kumar Sharma

                                                                      1
           THE HIGH COURT OF MADHYA PRADESH
                          MA.56.2017.
                (Guddi Bai Vs. Smt. Indra Jain).
                              and
                         MA.86.2017.
                (Smt. Indra Jain Vs. Guddi Bai).


GWALIOR; dated 02.12.2021.

      Shri A.S.Bhadoria, counsel for the appellant in M.A.No.56 of

2017 and for respondent in M.A.No.86 of 2017.

Shri Sanjay Kumar Mishra, counsel for the respondent in

M.A.No.56 of 2017 and for petitioner in M.A.No.86 of 2017.

These misc. appeals have been filed by both, the landlord and

tenant against the order dated 29.9.2016 passed by II Additional District

Judge, Ganj Basoda District Vidisha in Civil Appeal No.93A of 2016 (in

both the appeals) whereby, the matter has been remanded back to the

trial court with certain directions.

The appellant and the respondent, in both these appeals shall be

referred as `landlord and tenant', hereinafter.

The landlord Indra Jain filed a civil suit before II Civil Judge

Class 2, Ganj Basoda for eviction of the rented premises which was

dismissed vide judgment and decree dated 27.9.2010 and being

aggrieved of the judgment and decree, appellant/plaintiff filed first

appeal. After hearing both the sides, learned appellate court vide

impugned order has observed that it is not appropriate to interfere in the

decision of the trial court on issue no.1 and 2. But at the same time, the

matter was remanded back to the trial court with the direction that the

issue no.1 framed regarding outstanding rent, shall be restored and the

THE HIGH COURT OF MADHYA PRADESH MA.56.2017.

(Guddi Bai Vs. Smt. Indra Jain).

and MA.86.2017.

(Smt. Indra Jain Vs. Guddi Bai).

same will be decided after giving opportunity to both the sides to

adduce the evidence. Further the application of the plaintiff/appellant

for amendment under Order 6 Rule 17 of CPC to add the ground of non

user was allowed and on the basis of this amendment, the issue was

framed whether the plaintiff is entitled for vacant possession of the

rented premises on the ground of non user of the rented premises for last

8 to 10 months. The trial court was directed to afford opportunity to lead

evidence to both the sides and to decide the same expeditiously. Both

the sides are aggrieved of the order of appellate court and have filed

above misc. appeals, which are being disposed of by this common order.

Heard learned counsel for both the sides and perused the material

available on record.

Learned counsel for the landlord submits that on the basis of

pleadings of both the sides, the trial court framed issue no.1 regarding

outstanding rent, but instead of deciding the same on merits, it has

deleted this issue without giving any opportunity to the

plaintiff/landlord. Since the pleadings and evidence were available on

record with regard to issue no.1, the appellate court could have very

well decided the issue but instead of deciding the same, it has remanded

the matter to the trial court which is not sustainable in the eyes of law.

He has further submitted that the appellate court has also wrongly

THE HIGH COURT OF MADHYA PRADESH MA.56.2017.

(Guddi Bai Vs. Smt. Indra Jain).

and MA.86.2017.

(Smt. Indra Jain Vs. Guddi Bai).

confirmed the finding of the trial court on issue no.2 and the matter has

been remanded in toto which is also not permissible. The

plaintiff/landlord has sought amendment in her pleading regarding non

user of the rented premises during pendency of the appeal which has

been allowed by the appellate court. The plaintiff is entitled to seek

eviction on this new cause of action. Thus, the learned appellate court

may be directed to decide the appeal on merits and liberty should be

granted to the landlord to seek eviction on the above said new ground of

non user.

Learned counsel for the tenant submits that the plaintiff herself

has categorically stated in her own statement that she has waived the

demand of rent. Thus, the trial court has rightly deleted the issue no.1

framed in this regard but still, the learned appellate court remanded the

matter in toto which is not permissible under law. The ground of non

user is a separate cause of action for which, the plaintiff may file

separate suit but it was not proper for the appellate court to allow the

said amendment at the appellate stage and to remand the matter to the

trial court to proceed on the ground of non user. He has placed reliance

upon the judgments rendered in the cases of H.P. Vedavyasachar Vs.

Shivashankara and Anr. reported in (2009) 8 SCC 231 and Zarif

Ahmad (dead) through legal representative & Anr. Vs. Mohd.

THE HIGH COURT OF MADHYA PRADESH MA.56.2017.

(Guddi Bai Vs. Smt. Indra Jain).

and MA.86.2017.

(Smt. Indra Jain Vs. Guddi Bai).

Farooq, reported in (2015) 13 SCC 673.

Heard. Considered.

The law regarding filing of documents at the appellate stage

under Order 41 Rule 27 of CPC and with regard to remand of the cases

by the appellate court has been laid down by the Hon'ble Supreme Court

in the case of H.P.Vedavyasachar (Supra) as under :

7. However, so far as the second contention raised by the learned Counsel for the appellant is concerned, in our opinion, the same has substance. When an application for adducing additional evidence is allowed the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so.

8. Order 41 Rule 28 CPC reads as under:

"28. Mode of taking additional evidence-Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the appellate court. For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41 Rule 23, Order 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case.

9. This Court in Shanti Devi v. Daropti Devi and has held as under:(SCC 775 p.778, para13) "13. But the same by itself could not be a ground for remitting the entire suit to the learned trial Judge upon setting aside the decree of the learned trial court. The power of remand vests in the appellate court either in terms of Order 41 Rules 23 and 23-A or Order 41 Rule 25 of the Code of Civil Procedure. Issue 4 was held to have been wrongly framed. Onus of proof was also wrongly placed and only in that view of the matter the High Court thought it fit to remit it to the learned trial Judge permitting the parties to adduce fresh evidence. It, therefore, required the learned trial Judge to determine a question of fact, which according to it was essential upon reframing the issue."

In the case of Zarif Ahmad (dead) through legal representative (Supra), it has been held as under :

"No doubt, Section 107 CPC empowers the appellate court to

THE HIGH COURT OF MADHYA PRADESH MA.56.2017.

(Guddi Bai Vs. Smt. Indra Jain).

and MA.86.2017.

(Smt. Indra Jain Vs. Guddi Bai).

remand a case, but is simultaneously empowers the appellate court to take additional evidence or to require such evidence to be taken. Rule 24 Order 41 CPC provides that where evidence on record is sufficient, the appellate court may determine the case finally. It is not a healthy practice to remand a case to the trial court unless it is necessary to do so as it makes the parties to wait for the final decision of a case for the period which is avoidable. Only in rare situations, should a case be remanded e.g. when the trial court has disposed of a suit on a preliminary issue without recording evidence and giving its decision on the rest of the issues, but it is not so in the present case".

In the present case undisputedly, the pleadings and evidence of

both the sides are available on issue no.1 which is framed regarding

outstanding rent. Thus, the appellate court should have decided the issue

on merits but instead of deciding the same, it has remanded the matter

back to the trial court to restore the issue and to decide the same afresh.

The appellate court has not kept the appeal pending with it rather it has

remanded the case in toto. In view of the above mentioned legal

position, the decision of remand of the matter in toto is not sustainable.

In view of the law laid down in the case of Rajivlochan Saxena

Vs. Gordhanlal reported in 1981 JLJ SN 38, the amendment on the

ground of non user, as subsequent event, is not permissible during

pendency of the suit instituted on other grounds. Therefore, the first

appellate court has also erred in permitting amendment sought by the

landlord/plaintiff regarding non user of the rented premises rather it was

required from the appellate court to relegate the plaintiff/landlord to file

THE HIGH COURT OF MADHYA PRADESH MA.56.2017.

(Guddi Bai Vs. Smt. Indra Jain).

and MA.86.2017.

(Smt. Indra Jain Vs. Guddi Bai).

separate suit on such new ground of non user subsequently arose. Thus,

the direction issued by the appellate court in this regard is also not

sustainable and is liable to be set-aside.

In view of the above, both these appeals filed against the order

dated 29.9.2016 passed by the first appellate court are disposed of as

under :

(i). The first appellate court shall restore the appeal of

the plaintiff/landlord on it's original number and after

giving opportunity of hearing to both the parties, decide

the same on merits on all the issues on the basis of

pleadings and evidence of both the sides available on

record of the trial court in accordance with law without

being influenced by the judgment dated 29.9.2016;

(ii). The plaintiff/landlord shall be at liberty to file

fresh suit for eviction on the ground of non user of the

rented premises, if so advised;

(iiii). A copy of this order be sent to the first appellate

court and both the parties are directed to appear before

the first appellate court on 5.1.2022;

(iv). The matter has already been inordinately delayed,

therefore, the appellate court is directed to decide the

THE HIGH COURT OF MADHYA PRADESH MA.56.2017.