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Judgment
M.L. Pendse, J.—By this petition filed under Article 227 of the Constitution of India the petitioner landlord (original plaintiff) is challenging legality of the judgment dated April 18, 1987 passed by the Additional District Judge, Solapur, in Civil Appeal No. 459 of 1983. By the impugned judgment the Additional District Judge reversed the judgment dated June 6, 1983 passed by the Civil Judge. J.D. Karmala and remanded the suit to the Trial Court with direction to frame a specific issue on the ground of default as well as on the ground of recovery of possession u/s 13(1)(hhh) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as ''the Rent Act")
The petitioner instituted a suit for recovery of possession on various grounds, the principal ground being that the premises are required reasonably and bona fide for personal occupation. The Trial Court framed issues Nos. 3 and 4 in respect of the claim based on provisions of Section 13(1)(9) of the Rent Act and the parties went for the trial and led evidence. The Trial Court held that the requirement was not established and that greater hardship would be caused to the tenant by passing decree of eviction than to the landlord by refusing the same.
The petitioner challenged the refusal of the claim for possession by filing appeal before the District Court and the Additional District Judge, Solapur remanded the suit directing the Trial Court to frame specific issue. u/s 13(1)(hhh) of the Rent Act and that order passed by the Lower Appellate Court is under challenge.
Mr. Patankar, learned Counsel appearing on behalf of the petitioner, submitted that the learned Additional District Judge need not have remanded the suit by giving direction to frame a-specific issue u/s 13(1)(hhh) of the Rent Act. The learned Counsel submitted that neither the landlord nor the tenant had sought for such an issue. However, the learned District Judge directed the trial Court to determine the claim for recovery of possession u/s 13(1)(hhh) of the Rent Act. Mr. Patankar submitted that the learned District Judge could have granted the relief or refused it, but was not justified in remanding the suit by framing the issue which was never sought for. The submission is correct and deserves acceptance. The District Judge ought to have disposed of the appeal by examining whether the requirement is reasonable and bona fide and, if so, to whom greater hardship would be cause. The order of remand is clearly unsustainable.
Accordingly, petition succeeds and judgment dated April 18, 1987 passed by the Additional District Judge, Solapur, in Civil Appeal No. 459 of 1983 is set aside and the District Court, Solapur, is directed to dispose of the appeal on merits by examining whether the ground u/s 13(1)(g) of the Rent Act is proved or otherwise.
Accordingly, rule is made absolute. In the circumstances of the case, there will be no order as to costs.