High Court of Bombay at Nagpur Allows Revision by Tenant, Remanding Eviction Suit for Fresh Decision — Appellate Court's Order Set Aside for Non-compliance with Section 107 CPC. The Court held that the lower appellate court, in reversing the trial court's dismissal, failed to re-appreciate evidence and assign reasons as required under Sections 96 and 107 of the Code of Civil Procedure, 1908, warranting remand.

Civil revision application against a decree of eviction passed by the District Judge in first appeal, reversing the trial court's dismissal of a suit for ejectment.

The applicant (original defendant/tenant) sought setting aside of the appellate decree and dismissal of the eviction suit, or alternatively, remand for fresh decision.

The applicant contended that the lower appellate court erred in allowing the appeal without proper re-appreciation of evidence and without recording reasons as required under Sections 96 and 107 CPC.

The trial court (Civil Judge (Junior Division), Umrer) dismissed the suit for eviction by judgment dated 01-09-2010. In appeal (Regular Civil Appeal No.522 of 2010), the District Judge, Nagpur reversed the decree and passed a decree of eviction on 03-11-2016.

Whether the appellate court properly discharged its duty under Sections 96 and 99A of the Code of Civil Procedure, 1908 by re-appreciating evidence and recording reasoned findings while reversing the trial court's dismissal of the eviction suit.

The applicant contended that the appellate court failed to consider the appeal as required by Section 96 and Section 107 CPC, by not dealing with the evidence. He argued that the finding on landlord's reasonable and bona fide need was recorded without appreciation of evidence. He also contended that the issue of greater hardship was answered in favour of landlord without proper appreciation. The appellate court's judgment was cryptic and did not discharge its duty as a first appellate court. The respondent opposed the revision on the ground that there is no error of jurisdiction or failure to exercise jurisdiction. She relied on Shamshad Ahmad v. Tilakraj Bajaj to argue that the appellate court can decide bona fide need. She argued that the landlord is the best judge of his own requirement. She relied on Gangadevi v. District Judge, Nainital to argue that the tenant's failure to secure alternative accommodation was rightly inferred as greater hardship to landlord. She contended that the revisional court should not substitute its finding for that of the appellate court, citing Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh.

The appellate court in a first appeal has a duty under Section 107 read with Section 96 of the Code of Civil Procedure, 1908 to re-appreciate the entire evidence and record its findings with reasons, especially when reversing the trial court's decision; failure to do so vitiates the appellate judgment and necessitates remand.

34. We, therefore, answer the reference as under: ... (III) In our considered view, a party aggrieved by the order passed under Section 26A of the said Act by the District Court would be at liberty to choose to file either Civil Revision Application under section 115 of the Code or a petition under Article 227 of the Constitution of India. The appellate Court, in my opinion, was duty bound to reappreciate the entire evidence and to record its finding on the issue of bona fide need as the suit of the present nonapplicant was dismissed by the trial Court which decree was reversed in an appeal. A first appeal is a valuable right available to the aggrieved party and both question of law and fact are required to be appreciated. While writing a judgment of reversal, the appellate Court is required to be conscious of two principles... In the case in hand, after the issues were framed by the trial Court, the trial Court proceeded to analyze the evidence in the backdrop of the pleadings raised and recorded a finding of dismissal of the suit, whereas, the appellate Court instead of reaffirming the entire evidence, in a cryptic manner proceeded to allow the appeal without appreciating the evidence. Primafacie, the judgment of the appellate Court as such is contrary to the provisions of Section 107, particularly the duty as is casted on the appellate Court while deciding the appeal.

The respondent (landlord) filed Regular Civil Suit No.107/2005 before the Civil Judge (Junior Division), Umrer seeking eviction and possession. The suit was contested and dismissed by the trial court on 01-09-2010. The landlord filed Regular Civil Appeal No.522/2010 before the District Judge, Nagpur, which was allowed by judgment dated 03-11-2016, decreeing eviction. The defendant (tenant) then filed Civil Revision Application No.8/2017 before the High Court of Judicature at Bombay, Nagpur Bench.

• Code of Civil Procedure, 1908: 115, 96, 107, 99A
• Constitution of India: 227