Ravindra Kumar and Others vs Habib

Dr. Vineet Kothari, J—The present Misc. Appeal has been filed by the appellants-plaintiffs under Order 43 Rule 1(u) of the Code of Civil Procedure against the impugned order dated 25.03.2009 passed by the learned Additional District Judge No. 1, Bhilwara in Civil Regular Appeal No. 02/2007 "Ravindra Kumar & Anr. Vs. Habib" by which order, the learned Appellate Court has, while disposing of the appeal of the present appellants, remanded the case back to the learned Trial Court of Civil Judge (Junior Division)-East, Bhilwara which had allowed the application filed by the defendant-respondent under Order 7 Rule 11 of the Code of Civil Procedure and dismissed the suit itself.

By the impugned order dated 25.03.2009, the learned Appellate Court of Additional District Judge No. 1, Bhilwara dismissed the appeal of the plaintiffs, the present appellants, which was filed against the rejection of their Suit No. 92/2002 "Ravindra Kumar & Anr. Vs. Habib" on 15.12.2006. The suit in question was filed by the plaintiffs for recovery of the possession of the suit shop which was given to the defendant-Habib by way of license for setting up of the welding machine and the same was only a permissive possession though the defendant-tenant-Habib claimed that he was a tenant in the suit shop and paying regular rent to the plaintiffs. The said suit was dismissed by the learned Trial Court on 15.12.2006.

The relevant portion of the discussion of the learned Trial Court in the impugned judgment dated 15.12.2006 is quoted herein below for ready reference:-

The appeal filed by the plaintiffs came to be disposed of by the learned Appellate Court by the impugned judgment dated 25.03.2009 remanding the case back to the learned Trial Court for deciding the issues of Court Fees and Jurisdiction with the following observations:-

The learned counsels Mr. Sanjay Nahar and Mr. A.K. Babel appearing for the plaintiffs-appellants relied upon a decision of this Court in the case of Nirmala Rani Sanand (Smt.) Vs. Lalchand @ L.C. Soni, (2005) 1 RLW 230 : (2005) 1 WLC 282 and submitted that the Court Fees was not payable on the market value of the suit property in question, since it was only a case of permissive possession given to the defendant in respect of the suit shop measuring 6 ft. x 4 ft. under the staircase and the Court Fees, as paid by the plaintiffs before the learned Trial Court was again paid by the plaintiffs-appellants before the learned Appellate Court and, therefore, the objection raised by the defendant even should be deemed to be waived by the defendant and, therefore, the remand of the case by the learned Appellate Court was not justified.

On the other hand, the learned counsel Mr. Sajjan Singh appearing for the defendant-respondent submitted that the remand of the case by the learned Appellate Court was justified and the issues regarding the Court Fees and the Jurisdiction of the Trial Court deserve to be decided by the learned Trial Court and, therefore, no interference is called for in the impugned order dated 25.03.2009 and the present Misc. Appeal filed by the plaintiffs deserves to be dismissed.

Having heard the learned counsels for the parties and upon perusal of the material available on the record, including the reasons assigned by the learned Additional District Judge No. 1, Bhilwara in the impugned order dated 25.03.2009 for remanding the case back to the learned Trial Court, this Court is of the opinion that there was no justification for the Appellate Court to remand the case back to the Trial Court and it ought to have decided the appeal of the plaintiffs on merits. It is noticed that the present suit filed by the plaintiffs-appellants is of the year 2002 and 13 years have elapsed only for deciding the question of Court Fees and the Jurisdiction of the Trial Court and, therefore, the casual remand of the case by the Appellate Court by the impugned order dated 25.03.2009 cannot be appreciated. Therefore, this Court is satisfied that while setting aside the impugned order dated 25.03.2009, the matter deserves to be sent back to the Appellate Court of the learned Additional District Judge No. 1, Bhilwara for decision of the appeal of the plaintiffs on merits regarding eviction and the Appellate Court may also decide the question of Court Fees.

Accordingly and in view of the above, the present Misc. Appeal filed on behalf of the appellants-plaintiffs-Ravindra Kumar S/o Jamna Lal Joshi & Anr. stands allowed. The impugned order dated 25.03.2009 is set aside and the matter is restored on the file of the learned Additional District Judge No. 1, Bhilwara for deciding the appeal of the plaintiffs on merits, including the question of Court Fees, in accordance with law. No costs. A copy of this order be sent to the learned Additional District Judge No. 1, Bhilwara and to the parties concerned forthwith.