Case Note & Summary
The appellant, Ramesh Danchand Waswani, a tenant of premises owned by respondent Yusufbhai Mukhtar Amir Varawalla, faced eviction proceedings under the Maharashtra Rent Control Act, 1999. The Small Causes Court and the Appellate Court both ordered eviction. The tenant filed a writ petition under Articles 226 and 227 of the Constitution before the Bombay High Court. The learned Single Judge found that the courts below had not considered whether partial eviction of the tenant would satisfy the landlord's need, as required by Section 16(2) of the 1999 Act. Consequently, the Single Judge remanded the matter to the Appellate Court for recording additional evidence and deciding the issue afresh. The tenant then filed a review application (Misc. Civil Application No. 434/2011) contending that the remand should have been to the Trial Court to preserve his right of appeal under Section 34 of the Act. The Single Judge dismissed the review with costs of Rs. 5000. The tenant appealed via Letters Patent Appeal. The Division Bench heard arguments. The tenant argued that remand to the Appellate Court would deprive him of a statutory appeal because the Appellate Court's finding on partial eviction would not be appealable. The landlord countered that the Single Judge's order was correct. The Division Bench held that the remand to the Appellate Court was proper. The Appellate Court, under Order 41 Rule 27 CPC, can record additional evidence. The tenant's right of appeal under Section 34 is not violated because the Appellate Court's decision on remand would be a decree appealable under Section 34. The Single Judge's order was upheld, and the Letters Patent Appeal was dismissed with no order as to costs.
Headnote
A) Rent Control - Partial Eviction - Section 16(2) Maharashtra Rent Control Act, 1999 - Requirement to consider partial eviction - The courts below failed to consider whether partial eviction would meet the landlord's need, necessitating remand. (Paras 1-2) B) Civil Procedure - Remand - Order 41 Rule 27 CPC - Appellate Court's power to record additional evidence - Remand to appellate court is proper as it can record additional evidence and decide the issue, and the tenant's right of appeal under Section 34 of the 1999 Act is not violated because the appellate court's finding is subject to further appeal under Section 34. (Paras 5-7) C) Constitutional Law - Letters Patent Appeal - Maintainability - Articles 226 and 227 of the Constitution of India - The learned Single Judge exercised jurisdiction under Articles 226 and 227, and the parties conceded that the Letters Patent Appeal is tenable. (Para 4)
Issue of Consideration
Whether the learned Single Judge erred in remanding the matter to the Appellate Court instead of the Trial Court, thereby depriving the tenant of his statutory right of appeal under Section 34 of the Maharashtra Rent Control Act, 1999.
Final Decision
The Letters Patent Appeal is dismissed. The order of the learned Single Judge remanding the matter to the Appellate Court is upheld. No order as to costs.
Law Points
- Section 16(2) of Maharashtra Rent Control Act
- 1999 requires consideration of partial eviction
- Remand to appellate court does not violate right of appeal under Section 34 of the Act
- Order 41 Rule 27 CPC applicable to appellate court
- Letters Patent Appeal maintainable against order under Articles 226/227
