M/S Gulab Chand Sareewala Firm vs Smt. Sunder Bai (Since Dead) Thr. ...
2023 Latest Caselaw 1296 MP

                                                           1

                                    IN THE HIGH COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                                     BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                     MISCELLANEOUS APPEAL No. 1657 of 2020
                                            19th DAY OF JANUARY, 2023

                      Between:-
                      M/S GULAB CHAND SAREEWALA FIRM
                      THROUGH ITS PARTNER-
                      1.    SHARAD       JAIN     S/O   LATE   SHRI
                      DHANNALAL JAIN AGED ABOUT 66 YEARS,
                      LAKHERA KI GALI SARAJA WARD DITT.
                      JABALPUR , JABALPUR , MADHYA PRADESH
                      2. SUBODH JAIN S/O LATE DHANNALAL JAIN,
                      AGED ABOUT 62 YEARS LAKHERA KI GALI
                      SARAJA      WARD     JABALPUR,      JABALPUR,
                      MADHYA PRADESH
                      3.    SUNIL JAIN (SINCE DEAD) THROUGH
                      LRS
                      (A)   SMT.MEENA      JAIN    AGED   ABOUT    50
                      YEARS W/O LATE SUNIL KUMAR JAIN
                      (B)   SAMEER JAIN AGED ABOUT 28 YEARS
                      (C) RIYA JAIN AGED ABOUT 25 YEARS
                      NO. B AND C S/o AND D/o LATE SUNIL KUMAR
                      JAIN, ALL R/O LAKHERA KI GALI, SARAFA
                      WARD, DISTT JABALPUR


                                                               ....................................APPELLANTS

Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 1/25/2023
10:33:12 AM
                                                                                              2

                          (BY SHRI AKHILESH JAIN-ADVOCATE)

                          AND

                      SMT. SUNDER BAI (SINCE DEAD) THROUGH
                      LEGAL HEIRS-
                      1.MUNNALAL    JAIN    S/O    LATE
                      SHIKHARCHANDRA JAIN AGED ABOUT 62
                      YEARS
                      2.SUMANCHANDRA   JAIN  D/O   LATE
                      SHIKHARCHANDRA JAIN AGED ABOUT 52
                      YEARS
                          3. CHANDRA KUMAR JAIN, S/O LATE
                          SHIKHARCHANDRA JAIN AGED ABOUT 51 YEARS
                          ALL R/O KHATIK MOHALLA, TILAK WARD, TAH.
                          AND DISTT.-JABALPUR.
                                                                                                                 ......................RESPONDENTS

                          (SHRI R.P. KHARE-ADVOCATE)

                           ..........................................................................................................................................

                              This appeal coming on for hearing on this day, the court passed the following:
                                                                                     ORDER

This miscellaneous appeal has been filed by the appellants/defendants/tenants

challenging the judgment and decree dated 10.02.2020 passed by 12 th Additional District

Judge, Jabalpur in RCA No.44-A/2016 reversing the judgment and decree dated

19.01.2016 passed by 12th Civil Judge Class-II, Jabalpur in civil suit no.81-A/2014,

whereby learned trial Court dismissed the suit in toto filed for eviction on the grounds

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 1/25/2023 10:33:12 AM

available under Section 12(1) of the Madhya Pradesh Accommodation Control Act, 1961

in toto, which has been set aside by learned first appellate Court vide its judgment and

decree dated 10.02.2020 and the matter has been remanded back to learned trial Court

for decision afresh after recording some findings in respect of title of plaintiffs.

2. Learned counsel for the appellants/defendants/tenants submits that while passing

the judgment and decree of remand, learned first appellate Court was not competent to

record any finding on the question of title of the plaintiffs and the learned first appellate

Court ought to have kept open all the issues for fresh consideration by learned trial

Court. Accordingly, he submits that the judgment and decree passed by learned first

appellate Court is not sustainable in the eyes of law.

3. Learned counsel for the respondents/plaintiffs submits that there is no illegality in

the judgment and decree of remand passed by learned first appellate Court because

undisputedly the original plaintiff Sunder Bai (since died) is daughter of Parmanand and

Nanhi Bai to whom the appellants/defendants/tenants were paying the rent accepting

them to be owner and landlord and learned trial Court without considering this aspect of

the matter and without recording any finding on the question of bona fide requirement

dismissed the suit, which has rightly been reversed by learned first appellate Court by

remanding the matter for consideration afresh. Accordingly, he submits that the present

miscellaneous appeal deserves to be dismissed.

4. Heard the learned counsel for the parties and perused the record.

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 1/25/2023 10:33:12 AM

5. From perusal of the impugned judgment and decree of remand it is clear that

apprehension of the learned counsel for the appellants is not correct and in my opinion

even if, while passing the judgment of remand, learned first appellate Court has

recorded/discussed the question of title of the plaintiffs/respondents, that itself will not

come in the way of learned trial Court to decide the suit afresh on the basis of available

evidence before it.

6. However, with the consent of learned counsel for the parties, it is hereby observed

that learned trial Court as per judgement of remand shall decide the civil suit afresh on

the basis of evidence already available on record without being influenced by any of the

findings recorded by learned first appellate Court.

7. As such declining interference but with the aforesaid observations, this

miscellanesous appeal is disposed off with the further direction to both the parties to

appear before learned trial Court on 14.02.2023.

8. Interim application(s), if any, shall stand disposed off.

9. Registry is directed to remit the records of the Courts below immediately for

compliance of the judgement and decree of remand dtd. 10.02.2020.

.

(DWARKA DHISH BANSAL) JUDGE

sh

Signature Not Verified Signed by: S HUSHMAT HUSSAIN Signing time: 1/25/2023 10:33:12 AM