Case Note & Summary
The petitioner, the original plaintiff, filed a writ petition challenging the judgment and decree dated 25/02/2020 passed by the District Judge-4, Chandrapur in Regular Civil Appeal No.105 of 2016. The appellate court had partly allowed the appeal, setting aside the trial court's judgment and decree dated 14/10/2016 in Regular Civil Suit No.282 of 2012 and remanding the suit for fresh adjudication. The plaintiff had filed the suit for possession and recovery of arrears of rent, claiming ownership of a shop which was ancestral property of his father. After the father's death on 05/02/2011, the plaintiff terminated the defendant's tenancy, but the defendant continued to occupy the shop without paying rent. The defendant filed a counter claim seeking declaration that his tenancy was irrevocable and that he was a lawful protected tenant. The trial court partly decreed the suit, directing the defendant to vacate the suit property for non-payment of rent from June 2009 to 13/02/2019 (56 months) and dismissed the counter claim. The defendant appealed. The First Appellate Court set aside the trial court's decree and remanded the suit for fresh decision without recording reasons for remand or specifying the issues to be tried afresh. The High Court found that the remand order did not comply with Order 41 Rule 23 of the Code of Civil Procedure, 1908, which requires the appellate court to record reasons for remand and frame issues for fresh adjudication. The High Court allowed the writ petition, set aside the appellate court's remand order, and remanded the matter back to the First Appellate Court for fresh disposal in accordance with law, directing the appellate court to decide the appeal on merits after giving opportunity to both parties.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23 CPC - Appellate Court's Power to Remand - The First Appellate Court set aside the trial court's decree and remanded the suit for fresh decision without recording reasons for remand or specifying the issues to be tried afresh. Held that such a remand order is not sustainable as it does not comply with the requirements of Order 41 Rule 23 CPC, which mandates that the appellate court must record its reasons for remand and frame the issues for fresh adjudication. (Paras 1-10) B) Rent and Tenancy - Possession and Arrears of Rent - Suit for Eviction - The plaintiff claimed possession and arrears of rent alleging that the defendant was a tenant under his father and after the father's death, the tenancy was terminated and the defendant illegally occupied the suit shop. The trial court decreed the suit for possession and arrears of rent for 56 months. The appellate court remanded the matter. Held that the appellate court's order was without proper application of mind and the matter requires fresh consideration by the appellate court. (Paras 4-10)
Issue of Consideration
Whether the First Appellate Court was justified in setting aside the trial court's decree and remanding the suit for fresh adjudication without proper reasoning and compliance with Order 41 Rule 23 of the Code of Civil Procedure, 1908.
Final Decision
The High Court allowed the writ petition, set aside the impugned judgment and decree dated 25/02/2020 passed by the District Judge-4, Chandrapur in Regular Civil Appeal No.105 of 2016, and remanded the matter back to the First Appellate Court for fresh disposal in accordance with law. The appellate court was directed to decide the appeal on merits after giving opportunity to both parties.
Law Points
- Remand order must comply with Order 41 Rule 23 CPC
- Appellate court must record reasons for remand
- Trial court's findings on evidence cannot be lightly set aside
- Counter claim for tenancy rights requires proper adjudication
