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Judgment
A. P. Thaker, J
Being aggrieved and dissatisfied with the judgment and order dated 21.12.2018 passed by the learned 6th Additional District Judge, Vadodara (hereinafter be referred to as "the Appellate Court") in Regular Civil (Rent) Appeal No.68 of 2018, whereby the Additional District Judge has remanded the appeal filed by the respondent under Section 29 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter be referred to as "the Rent Act"), the applicants - original defendants have preferred the present civil revision application.
Brief facts of the present case are that Rent Suit No.253 of 1984 was filed by the original plaintiff - respondent herein against the original defendants - applicants herein for declaration and permanent injunction of the property situated at Anandpura, Raopura, Near Pullbari, Opposite Sarkari Rugnalay vide House No.8/87 bearing Registration No.A/1830, Vadodara which came to be rejected by the Small Causes Court, Vadodara (hereinafter be referred to as "the Trial Court") on 04.07.2017. It is alleged that against the said order, original plaintiff has preferred the aforesaid appeal before the District Court, Vadodara. By impugned judgment and order, the Appellate Court has remanded back the matter to the Trial Court for fresh adjudication. It is alleged that the Appellate Court has committed serious error of facts and law in remanding the matter back to the Trial Court only with a view to produce the evidence by both the sides. It is alleged that the suit being Rent Suit No.253 of 1984 was pending for more than three decade and, therefore, the Appellate Court has remanded the matter back to the Trial Court is illegal and unsustainable. It is alleged that no proper opportunities were affording to the plaintiff to lead evidence. However, the plaintiff has failed to lead evidence and on that ground the suit was rejected. It is alleged that the Appellate Court has ample powers to record the evidence and could have decided the appeal on merits instead of remanding the matter back to the Trial Court. It is prayed to allow the revision application and to quash and set aside the impugned judgment and order of the Appellate Court.
Heard Ms.Dixa Pandya, learned advocate for the applicants and Mr.Harshadray Dave, learned advocate for the respondent at length. Perused the materials placed on record and the decisions cited at the Bar.
Ms.Dixa Pandya, learned advocate for the applicants has referred to the impugned orders of the Trial Court as well as the Appellate Court and has submitted that the Appellate Court has ample powers under Order 41 Rule 11 to record further evidence and, therefore, there was no need to remand back the matter to the Trial Court. While referring to the impugned order of the Appellate Court, she has submitted that no issues have been framed by the Appellate Court and only remanded the matter back to the Trial Court only for recording the evidence of both sides. According to her submissions, the order of the Appellate Court is perverse and illegal. She has also referred to the provisions of Section 96 of the CPC as well as Order 41 thereof. While relying upon the following decisions, she has submitted that this revision application may be allowed and the order of the Appellate Court remanding the matter back to the Trial Court may be quashed and set aside and the Appellate Court may be directed to proceed with the matter.
(1) In the case of Saraswati Ben Vs. Mafatlal Gopaldas Patel, AIR 1971 Gujarat 91;
(2) In the case of Hemlataben Mangalsinh Vs. Shantaben Chandulal Narshidas, 2013 (34) GHJ 112.
Mr.Harshadray Dave, learned advocate for the respondent has submitted that the Appellate Court has not committed any serious error of facts and law in remanding back the matter to the Trial Court as the original suit was decided without evidence on the part of both the sides. While referring to para-11 of the impugned order of the Appellate Court, he has submitted that the Appellate Court has clearly indicated the reason that the record and proceedings was lying with the Appellate Court and it was sent back in the year 2016 and in view facts that the evidence had not been recorded during the period from 2012 to 2016, the order of the Appellate Court cannot be assailed. According to him, there is no evidence led by either of the party in the suit being Rent Suit No.253 of 1984 and, therefore, for recording of the evidence of both the sides, the Appellate Court has remanded the matter back to the Trial Court and this order cannot be termed as perverse one. While referring to the order of the Appellate Court, he has submitted that in paras-5 and 6, the Appellate Court has already framed points of determination. He has urged to dismiss the present civil revision application.
Mr.Dave, learned advocate for the respondent has relied upon the decision in the case of Abdulbhai Amadbhai Chaki Vs. Devaji Mulji Vasani, 2012 JX (Gujarat) 812. So far as the other decision which are relied upon by the learned advocate for the applicant is concerned, the facts of that case are different of the present case.
In rejoinder, Ms.Dixa Pandya, learned advocate for the applicants has submitted that the suit is of the year 1984, the Trial Court has ample powers to record the evidence and appreciate the same and, therefore, there was no need to remand the matter to the Trial Court. She has prayed to quash and set aside the order of the Appellate Court and allow the revision application.
In the case of Saraswati Ben (supra), the Court has held and observed in para-19 as under:-
Rule 28 of Order 41 of the Code reads :
"Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence; or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."
Provision of this Rule 28 of Order 41 of the Code clearly envisages that when such additional evidence is allowed to be produced, it is the Appellate Court which may take such evidence or it may direct the trial Court or any other subordinate Court to take such evidence and to send it when taken, to the appellate Court. It does not envisage setting aside the entire decree and sending the matter back to the trial Court for fresh disposal. It is, therefore, evident that there is an express provision made in this Order as to what is to be done when such additional evidence is allowed to be produced.
At the same time, the Court has also referred to Sub Rule (2) of Rule 27 Order 41 of the Code in para-18 which reads as under:-
"(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission"
Now, considering the submissions of learned advocates of both the parties and materials placed on record, it transpires that the Trial Court has decided the suit on 04.07.2017 vide Exhibit 35. On perusal of the order of the Trial Court, it is found that the said suit has been rejected summarily on the ground that the plaintiff as well as defendants have failed to prove their case and issues which they had to prove. It also transpires from the impugned order that neither of the party has produced any evidence. Against this, the order of the Appellate Court passed in Regular Civil (Rent) Appeal No.68 of 2018 that the Appellate Court has considered the facts that the record and proceedings was lying with the Appellate Court from 2012 to 2016. It transpires that the Appellate Court has also taken into consideration the facts that after returning of the record and proceedings to the Trial Court from the Appellate Court, the Trial Court has not intimated to the plaintiff by issuing further notice and in such circumstances, the plaintiff may not have aware of the suit. It also transpires from the impugned order that neither of the party has produced any evidence for taken into consideration. Now, admittedly, neither of the party has produced any evidence before the Trial Court. Therefore, when there was no evidence on record, the Appellate Court cannot record the original evidence in appeal. The provisions relied upon by the learned advocate for the applicants is pertaining to recording of "additional evidence", which has been allowed by the Appellate Court to be produced. Now, in this case, there is no question of recoding of additional evidence or permission of additional evidence. In this case, there is no iota of evidence on the part of either side. As such, considering the factual as well as legal aspects of the matter, it is clearly found that the Appellate Court has not committed any error of facts and law in remanding the matter back to the Trial Court for providing opportunity to both the sides to lead the evidence in deciding the suit.
In view of the foregoing reasons, the present civil revision application is liable to be dismissed. Accordingly, it is dismissed. However, considering the fact that one suit is of the year 1984, it is directed that the Trial Court shall make sincere efforts to decide and dispose of the suit in accordance with law within a period of three months from the date of receipt of the writ of this Court. Both the parties are directed to cooperate the Trial Court in deciding the suit in time bound manner. Rule is discharged. Interim relief, if any, granted stands vacated forthwith.