Case Note & Summary
The appellants, who were the original plaintiffs, filed Regular Civil Suit No.97 of 2007 before the Civil Judge, Junior Division, Kopargaon, seeking possession and recovery of arrears of rent from the respondents/defendants under the provisions of the Maharashtra Rent Control Act. The suit was decreed on 31/01/2009. The defendants appealed to the District Judge, Kopargaon, in Civil Appeal No.78 of 2011. The Appellate Court, by order dated 16/06/2017, set aside the judgment and decree and remitted the matter back to the trial court with a direction to re-register the suit afresh with a fresh number and to decide the suit as per the provisions of the Civil Procedure Code in exercise of ordinary civil jurisdiction. The appellants challenged this remand order in the present Appeal From Order before the Bombay High Court. The High Court framed the issue as whether the Appellate Court was justified in remanding the matter without first determining whether the trial court had jurisdiction to entertain the suit under the Maharashtra Rent Control Act. The appellants argued that the Appellate Court exceeded its jurisdiction under Order 41 Rule 23 CPC because the trial court had not decided the suit on a preliminary point; it had passed a full decree on merits. The respondents supported the remand order. The High Court analyzed the provisions of Order 41 Rule 23, Rule 23-A, and Rule 25 CPC. It held that the condition precedent for remand under Order 41 Rule 23 CPC is that the trial court must have decided the suit on a preliminary point without recording findings on other issues. In this case, the trial court had recorded findings on all issues and decreed the suit. The Appellate Court did not set aside the trial court's finding that the suit was cognizable by the Small Causes Court under the Rent Control Act. Therefore, the remand was without jurisdiction. The High Court allowed the appeal, set aside the impugned order, and directed the Appellate Court to decide the appeal on its merits in accordance with law.
Headnote
A) Civil Procedure Code - Remand - Order 41 Rule 23 CPC - Appellate Court's Power - The Appellate Court set aside the decree and remanded the suit for fresh trial under ordinary civil jurisdiction, but did not set aside the trial court's finding that the suit was cognizable by the Small Causes Court under the Maharashtra Rent Control Act. Held that the Appellate Court exceeded its jurisdiction under Order 41 Rule 23 CPC, as the condition precedent for remand—that the trial court decided the suit on a preliminary point without recording findings on other issues—was not satisfied. The Appellate Court ought to have either decided the appeal on merits or remanded under Order 41 Rule 23-A or Rule 25 CPC after setting aside the jurisdictional finding. (Paras 1-10) B) Civil Procedure Code - Re-registration of Suit - Jurisdiction - The Appellate Court directed re-registration of the suit as a fresh suit under ordinary civil jurisdiction, effectively converting the nature of the suit without any finding that the trial court lacked jurisdiction. Held that such a direction was without authority and amounted to a remand de novo, which is impermissible unless the trial court's decree is set aside on a preliminary point. (Paras 5-10) C) Maharashtra Rent Control Act - Jurisdiction of Small Causes Court - The trial court had decreed the suit for possession and arrears of rent under the Maharashtra Rent Control Act, which is within the exclusive jurisdiction of the Small Causes Court. The Appellate Court's order to re-register the suit under ordinary civil jurisdiction would oust the Small Causes Court's jurisdiction without any adjudication on the point. Held that the Appellate Court's order was erroneous and liable to be set aside. (Paras 2-10)
Issue of Consideration
Whether the Appellate Court was justified in setting aside the decree and remanding the matter to the trial court for fresh decision under ordinary civil jurisdiction, without first determining whether the trial court had jurisdiction to entertain the suit under the Maharashtra Rent Control Act.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 16/06/2017 passed by the District Judge, Kopargaon in Civil Appeal No.78 of 2011, and directed the Appellate Court to decide the appeal on its merits in accordance with law.
Law Points
- Order 41 Rule 23 CPC
- Order 41 Rule 23-A CPC
- Order 41 Rule 25 CPC
- Section 96 CPC
- Maharashtra Rent Control Act
- jurisdiction of Small Causes Court
- remand without setting aside findings
- re-registration of suit
