Madhya Pradesh High Court
Mo. Umer vs Ashfak Ahmad on 21 November, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21 st OF NOVEMBER, 2023
MISC. APPEAL No. 4227 of 2022
BETWEEN:-
MO. UMER S/O SWARGIYA SHRI MO. USMAN, AGED
ABOUT 40 YEARS, MAGAN NO. 25 RETGHAT GALI FULL
MAHALAS BHOPAL M.P. (MADHYA PRADESH)
.....APPELLANT
(BY SHRI LALJI KUSHWAHA - ADVOCATE)
AND
ASHFAK AHMAD S/O SHRI AJIJ AHMAD MAKAN NO.
11/C RUSTAM KHAN KA AHATA SHYAMLA HILLS
BHOPAL ZILA BHOPAL M.P. (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUNIL SINGHAL - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed by the landlord being aggrieved of judgment and
decree dated 30.06.2022 passed by learned 3rd District Judge, Bhopal in
Regular Civil Appeal No.47/2022 whereby learned lower Appellate Court has
remanded the matter to the Trial Court after setting aside the judgment and
decree dated 10.09.2018 passed by the said Trial Court.
It is submitted that three issues have been framed by the learned lower
Appellate Court namely whether Mohammad Umer on the basis of the
agreement of rent which was executed in 1998 between Mohammad Usman and
Mohammad Asfaq will be entitled to establish relationship of landlord and
tenant. Whether a suit could have been filed in the year 2016 seeking arrears of
rent on the basis of an agreement which was executed in 1998 and whether the
legal heir who has been impleaded as a party on the basis of Will is entitled to
recover arrears of rent.
Shri Lalji Kushwaha submits that all the three issues were decided by the
learned Trial Court and no new material was produced to decide such issues
which have been framed by the Appellate Court.
It is submitted that once an application under Order 41 Rule 27 was
dismissed by the Trial Court, as is evident from para 12 of the impugned
judgment and decree, then there was no occasion for the Trial Court to have
remanded the matter on hypothetical basis.
Reliance is placed on the judgment of Coordinate Bench in the case of
Vipin Kumar and Others Vs. Sarojani, 2013(1) MPLJ 480, wherein
Hon'ble Coordinate Bench has held that four contingencies are available to
direct remand by Appellate Court otherwise the remand is not permissible.
It is submitted that none of the four contingencies existed in the present
case and, therefore, order of remand is bad in law.
Shri Sunil Singhal, learned counsel for the respondent tenant in his turn
submits that a plain reading of the Will which was executed by Shri Mohammad
Usman reveals that the Will was executed in favour of the appellant and his
brother. There are several conditions in regard to execution of Will like if any
portion of the building is dismantled then how shares will be apportioned
among three daughters of the author of the Will i.e. Mohammad Usman and in
case any portion is sold then how much amount is to be apportioned in that
behalf. Thus, it is submitted that property was though Willed but with several
conditions and, therefore, on the basis of Will alone present appellant could not
have been impleaded as a party.
It is also submitted that all the legal heirs of Mohammad Usman were not
impleaded and on that ground also the judgment and decree passed by the Trial
Court is bad in law.
It is further submitted that there no map bifurcating the properties
between the two sons of Mohammad Usman is enclosed by the petitioner along
with the Will.
It is further submitted that there is a difference in the spelling and,
therefore, the order of remand is justified and does not call for any interference.
It is also submitted that since a sole beneficiary of Will is not entitled to receive
the arrears of rent, therefore, Trial Court erred in passing an order under sub-
section (6) of Section 13 of the Accommodation Control Act.
After hearing learned counsel for the parties and going through the
record, this Court categorically asked Shri Sunil Singhal that as to whether any
objection was raised before the Trial Court in regard to validity of the Will.
Instead of answering the question directly, it is submitted that separate set of
counsel were prosecuting the case and, therefore, he is not aware. However,
material available on record reveals that no such objection was raised in regard
to validity of the Will before the Trial Court.
Several other grounds have been taken before the Lower Appellate Court
like eviction of other shops after passing of the judgment and decree but learned
lower Appellate Court has not considered that material in correct earnest that
what will be the impact of subsequent event on the judgment and decree which
was passed by the Trial Court.
When admittedly Will is not disputed and it is also evident that learned
lower Appellate Court has not framed any issue in regard to the validity of the
Will but issue No.3 is in regard to recovery of arrears of rent on the basis of the
party impleaded as per the narration in the Will, it is evident that Will was not a
subject matter of dispute before the Trial Court or the lower Appellate Court.
Therefore, issue no.3 as has been framed by the Trial Court gets answered
naturally that once the legal heir on the basis of Will has been impleaded, then
he moves into the shoes of the original landlord and his rights and duties will be
the same as that of the original landlord.
As far as issue No.1 is concerned that has already been answered by the
Trial Court that on the basis of the Will once the property in question which is
subject matter of dispute i.e. a shop measuring 10x6= 60 sqft. is concerned had
come to the share of Mohammad Umer then after having moved into the shoes
of the original landlord on the basis of the Will he was entitled to treat himself as
a landlord in respect of that shop, even there is no dispute to this fact raised
before the Trial Court.
Similarly third issue which has been raised that whether suit in regard to
recovery of arrears of rent on the basis of an agreement of the year 1998 was
maintainable or not is concerned that too has been answered by the Trial Court.
The Trial Court has categorically mentioned that neither the agreement of 1998
nor the Will executed by original landlord that was in dispute and, therefore,
passed the judgment and decree. Thus, it is evident that learned lower Appellate
Court has passed impugned judgment and decree without appreciating the facts
and without applying itself to the fact situation.
Before contingencies which have been mentioned by the Hon'ble
Coordinate bench of this Court in Vipin Kumar and Others (supra) are as
follows -:
"17. It is made clear here that for future while directing
remand by the lower Appellate Court certain guidelines are
required to be observed while passing judgment and order
directing remand. It is directed that the lower Appellate Courts
in the State shall observe the contingencies in which remand is
permissible otherwise the appeals be decided on merit. The
contingencies wherein remand can be directed is observed as
thus :
(1) If the suit has been decided on a preliminary issue
and the decree is reversed by Appellate Court then while
passing the order of remand the Appellate Court may direct to
try the issue or issues after taking the evidence already on
record or after the remand, if any, on restoring the suit to its
original number.
(2) If an appeal is preferred against the judgment and
decree passed by the trial Court other than the preliminary issue
and Appellate Court reversed such finding in appeal and further
found that re-trial is necessary then by recording such finding
the power as specified in clause (1) may be exercised by the
Court directing wholesale remand.
(3) If the Appellate Court found from the decree against
which an appeal is preferred the trial Court has omitted to frame
or try any issue or to determine the question of fact which
appears essential to right decision of the suit on merit, then the
Appellate Court may frame issues and refer the same for trial to
the Court from whose decree the appeal is preferred directing
to take additional evidence if required. The Appellate Court
shall further direct that after trying the said issue the evidence
be returned to it with a finding and reasons therefor. In such
contingencies the time to return back the evidence and the
finding ought to be fixed by the Appellate Court. Thereafter the
Appellate Court after inviting objections may determine the
appeal on merit.
(4) On production of the additional evidence and after
taking them on record, if the Appellate Court is satisfied to take
some witness to prove the document then the remand may be
directed for taking such evidence or witness on record
specifying the points for it. On taking additional evidence on
record by all the times the remand is not necessary if the
document is admissible in evidence and not objected by other
side, the Court may pass the order on merit deciding the appeal.
(5) It is to be made clear here that if the evidence on
record is sufficient to enable the Court to pronounce the
judgment alter re-settling the issue, the Appellate Court should
not remand in routine and the appeals must be decided on
merit.
(6) If the Appellate Court is of the opinion to direct for
remand in any of the contingencies as specified hereinabove
under clause (1) to (4), it is the duty of the Court to fix the date
for appearance of the parties before the trial Court with a view
to curtail (he delay on directing such remand and if the remand
in the above clause (3) findings be also called within the time
specified."
None of these contingencies are found to be present in the case in hand
calling for remand of the matter. Thus merely for lethargy of the lower Appellate
Court matter could not have been remanded. Thus, order of remand being
cryptic and contrary to the law on subject is hereby quashed. Matter is remitted
to the lower Appellate Court to decide the appeal on its own merits within a
period of thirty days of receipt of record.
Parties are directed to appear before the learned lower Appellate Court
on 04.12.2023 for which no separate notice will be required. Lower Appellate
Court will decide the appeal on or before 04.01.2024.
In above terms, appeal is allowed and disposed of.
Certified copy as per rules.
(VIVEK AGARWAL)
JUDGE
Tabish
