Munni Devi Goyal vs Ambika Mill Store

Arun Bhansali, J.—These two writ petitions arise out of orders dated 18.03.2014 passed by the Additional District Judge No. 2, Sriganganagar, whereby, in the appeal preferred by respondent-tenants against the decree for eviction passed by the trial court and applications Order VI, Rule 17 C.P.C. and Order XLI, Rule 27 C.P.C. respectively have been allowed.

The suit was filed on the ground of bona fide need, subletting and material alteration and the trial court found all the three grounds in favour of the plaintiff and decreed the suit.

Feeling aggrieved, the defendant filed first appeal. During pendency of the first appeal, application under Order VI, Rule 17 C.P.C. was filed seeking amendment in the written statement based on a subsequent event that during pendency of the appeal one of the premises owned by the plaintiff had been ordered to be vacated by the jurisdictional court and against the said decree, appeal had also been dismissed by the first appellate court and it was claimed that the requirement of the plaintiff stands satisfied on account of decree passed by the trial court in relation to the said other premises.

The application was opposed by the petitioner-plaintiff, inter alia, indicating that against the decree passed by the trial court as upheld by the first appellate court, a second appeal has been preferred, in which, a stay order has been passed by the High Court and, therefore, it cannot be said that the plaintiff is in possession of the alleged alternative accommodation.

The first appellate court after hearing the parties by order dated 18.03.210 (challenged in S.B. Civil Writ Petition No. 3751/2010) allowed the application filed by the respondents, inter alia, coming to the conclusion that the event was subsequent to the passing of the decree and was important for the purpose of grant of decree and allowed the same. On the same day the another application filed by the defendant-appellant under Order XLI, Rule 27 C.P.C. (challenged in S.B. Civil Writ Petition No. 3979/2010) to place on record the documents in support of the plea relating to the subsequent events was also allowed and the first appellate court taking into consideration the order on application under Order VI, Rule 17 C.P.C. passed the following directions:-

Aggrieved against the orders, learned counsel for the petitioner submits that the first appellate court was not justified in permitting the amendment as sought by the respondents and the documents also could not have been taken on record. It was submitted that the plea sought to be raised was based on a fact, wherein admittedly the appellant is not in possession of the premises and, therefore, the grant of decree by the trial court in the another suit filed by the plaintiff was meaningless. It was further submitted that the first appellate court committed grave error in directing remand of the matter only on account of allowing of application under Order XLI, Rule 27 C.P.C. It was prayed that both the orders deserve to be quashed and set aside.

Learned counsel for the respondents supported the orders passed by the first appellate court. It was submitted that admittedly decree for eviction had been passed in favour of the plaintiff regarding another premises and the first appeal thereof had been dismissed and, therefore, the plaintiff was in possession of alternative premises and the same being a subsequent event, the trial court was justified in allowing the application under Order VI, Rule 17 C.P.C., which fact is necessary for the purpose of adjudication pertaining to reasonable and bona fide requirement of the plaintiff. The passing of order under Order XLI, Rule 27 C.P.C. was merely consequential as the documents pertaining to the said amendment were taken on record. The order passed by the first appellate court for remand was also sought to be justified as it was submitted that the further evidence was required to be led on the amendment. Ultimately, it was prayed that the writ petitions deserve to be dismissed.

I have considered the rival submissions.

So far as the order passed by the trial court on application under Order VI, Rule 17 C.P.C. and Order XLI, Rule 27 C.P.C. are concerned, whereby, the defendants have been permitted to amend the written statement to place on record the fact of passing of a decree regarding other premises in favour of the plaintiff is concerned, the order passed by the first appellate court is apparently just and proper inasmuch as issue pertaining to the bona fide requirement of the plaintiff was open before the first appellate court and the subsequent event had a bearing on the said aspect and, therefore, it cannot be said that the first appellate court was not justified in granting the application under Order VI, Rule 17 C.P.C. and as the documents are merely in support of the said plea, the application under Order XLI, Rule 27 C.P.C. also deserved to be accepted.

However, the procedure thereafter adopted by the first appellate court is wholly contrary to the provisions of Order XLI, Rule 23 to 25 C.P.C. and Order XLI Rule 27 C.P.C. The trial court while allowing the application under Order XLI, Rule 27 C.P.C. has went on to order remand of the matter to the trial court, without recording any reason as envisaged by Order XLI, 27(b) C.P.C., wherein if the appellate court comes to the conclusion that the document produced requires evidence to be led and the same cannot be done before the first appellate court, the matter can be remanded back. Further, the provisions pertaining to remand as contain in Order XLI, Rule 23 to 25 C.P.C. have not at all been adverted to by the first appellate court as to whether at all the remand of the whole suit was required to be made.

As noticed hereinbefore, the decree was passed by the trial court on three grounds i.e. bona fide requirement, material alteration and subletting and without any discussing/deciding the said issues, the matter could not have been remanded and if the first appellate court was of the opinion that the findings on the other two issues (other than bona fide requirement) did not require any interference then the appeal could have been dismissed on that count as well or the issue pertaining to bona fide requirement alone could have been remanded. Further even the decree passed by the trial court has not even been set aside and the matter has been ordered to be remanded/remitted back, which procedure is wholly alien to the known practice under C.P.C. The order of remand in these circumstances cannot be upheld and the same is, therefore, required to be set aside.

In view of the above discussion, the writ petition filed by the petitioner being S.B. Civil Writ Petition No. 3751/2010 is dismissed. S.B. Civil Writ Petition No. 3979/2010 is partly allowed while the order passed by the trial court under order XLI, Rule 27 C.P.C. to the extent of taking on record the documents is upheld, however, the order remanding the matter to the trial court is set aside and the first appellate court is directed to decide the appeal pending before it as expeditiously as possible. It would be open for the first appellate court to pass appropriate orders under Order XLI, Rule 23 to 25 C.P.C. in case the need is felt by the said court.