Smt. Radha Devi Sahu Vs. Indra Bahadur Singh and anr. - Court Judgment

Excerpt:
- prakash krishna, j.1. the s.c.c. suit no. 80 of 1998 was filed by the present petitioner namely smt. radha devi sahu alongwith beni prasad for recovery of arrears of rent and ejectment against devendra bahadur singh (who has died during the pendency of the litigation) and his brother indra bahadur singh who is respondent no. 1, herein. the suit was instituted on the pleas inter alai that devendra bahadur singh was the tenant of house no. 300b, attarsuiya, allahabad, who is in arrears of rent amounting to rs. 6,456 and whose tenancy has been determined by a notice dated 15th of june, 1998. during the pendency of the said suit beni prasad, the co-plaintiff, expired. it was stated by smt. radha devi, the other co-plaintiff, that the property in dispute has been gifted by beni prasad in her favour by means of registered gift deed dated 9th of february, 1996.2. the suit was not contested by shri devendra bahadur singh. it was contested only by indra bahadur singh. he claimed the relationship of landlord and tenant in between the plaintiff no. 1, i.e., beni prasad (who has died) and himself. in other words, he claimed tenancy in his own right and denied the plaint allegations that the house in dispute was let out to his brother devendra bahadur singh and he has sublet it to him. the fact that he has taken a house of u.p. avas evam vikas parishad under jhunsi avas yojna was admitted with the rider that presently the said house is not ready for occupation.3. the trial court, on the basis of the pleadings of the parties, framed issues mentioned in the judgment of the trial court. the suit was decreed by the judgment and decree dated 29th of september, 2004, for the ejectment from the disputed house no. 300b, attarsuiya, allahabad as also for recovery of arrears of rent amounting to rs. 6,456 altogether with the outstanding water tax and the cost of notice etc. against the said judgment and decree, a revision was preferred by indra bahadur singh alone. it was numbered as s.c.c. revision no. 845 of 2004 which has been allowed by the impugned order dated 10.1.2007 by the additional district judge, court no. 13 and the matter has been remanded to the trial court with certain directions mentioned therein. challenging the aforesaid judgment and order the present writ petition has been filed.4. the pleadings are complete. shri b. d. mandhyan, the learned senior counsel appearing on behalf of the petitioner submits that the revisional court committed illegality in remanding the matter to the trial court. the argument is that the revisions should have been decided by the revisional court or it should have remitted the issue, if so required. elaborating the argument, he submits that as to whether indra bahadur singh who had filed revision and is respondent no. 1 herein, was the tenant or not, is the lone issue which could have been adjudicated upon by the revisional court. there is no evidence on record to show that devendra bahadur singh had left any heir.5. none appeared on behalf of the contesting respondent even in the revised list.6. considered the aforesaid submission of the learned counsel for the petitioner. it has come on record that devendra bahadur singh has died while he was serving in b.h.e.l. outside allahabad.7. there is a rent agreement dated 17.7.1969 on record which, according to the landlord, was executed by devendra bahadur singh. the due execution of the said document was presumed by the trial court as it is more than 30 years old. it appears that no attempt was made before the trial court by indra bahadur singh to prove that the said document does not contain signature of devendra bahadur singh. indra bahadur singh is disputing the execution of the said document and therefore, he should have taken steps by summoning the relevant record and by producing the evidence to show that the said document does not contain signature of devendra bahadur. no such sort of step was taken by indra bahadur singh. whether the rent agreement has been signed by devendra bahadur on the tenancy was in the name of indra bahadur and the receipts of payment of water charges are in respect of water tax also, and house nos. 300a and 300b are two separate houses, or they are separate parts of one house and the effect of non-substitution of heirs of devendra bahadur singh, are the questions which need determination, according to the revisional court, by the trial court which necessitated passing of the remand order. in my considered view, all these questions should have been decided by the revisional court within its ambit and scope of jurisdiction on the basis of the evidence already available on, the record. the matter was being heard by the court below in exercise of its revisional jurisdiction. time and again, it has been held that a remand order should not be passed in a routine manner. by passing an order of remand time and money spent go waste. the efforts of court should be to decide the dispute finally between the parties instead of resorting to the passing of remand order.8. in p. venkateswarlyu v. motor and general traders : air 1975 sc 1409, the apex court has held that if a finding is required on a particular issue then the entire order of the trial court should not be set aside. a finding on the said issue may be called for from the trial court.9. the apex court in ashwinkumar k. patel v. upendra j. patel and ors. : air 1999 sc 1125 : 1999 (2) awc 1481 (sc), has held that the high court should not ordinarily remand a case under order xli, rule 23, c.p.c. to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. when the material was available before the high court, it should have itself decided the appeal one way or other. it could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reversed or modified. it could have easily considered the documents and affidavits and decided about the prima facie case on the material available. in matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in that case, such remand orders would lead to further delay and uncertainty. thus, the remand by the high court was not necessary.10. apex court in p. purushottam reddy and anr. v. pratap steels ltd. 2002 (48) alr 319 : 2002 (3) awc 2364 (sc), considered the powers of the appellate court as conferred on it under order xli, rules 23, 23a and 25 of the civil procedure code. while setting aside the order of remand passed by the high court, it has been laid down that the high court was to examine whether such finding of the trial court was sustainable or not in eyes of law and on facts. even otherwise also the question could have been gone into by the high court and a finding could have been recorded on the basis of available material inasmuch as the high court being the court of first appeal, all the question of fact and law arising in the case were open before it for consideration and decision.11. d.p. kesari v. xiith additional district judge and ors. : 2008 (73) alr 805 : 2009 (1) awc 263; prem pal and anr. v. d.d.c. and ors. 2005 (99) rd 439 and abdul alim v. district judge, jhansi and ors. 1996 (2) arc 44, were relied upon by the learned senior counsel for the petitioner in support of his contention.12. in view of the above discussion, the impugned order of remand is totally unjustified and it can be allowed to stand. the revisional court should decide the revision itself instead of remanding the matter. the writ petition succeeds and is allowed. the impugned order dated 10.1.2007 is hereby set aside. the revisional court is directed to restore the revision no. 845 of 2005 to its original number and rehear and redecide the revision on merits in the light of the observations made above.13. by way of clarification, it is added that this court has not expressed any opinion on the merits of the case.14. the matter is old one, the revisional court shall decide the revision expeditiously, prefereably within a period of four months from the date of production of certified copy of this order.15. the revisional court shall also ensure the payment of damages for use and occupation of the disputed accommodation by indra bahadur who claims himself a tenant, as a condition for the grant/continuance of the stay order, if any, in the revision and will keep in mind the observations made by the apex court in atma ram properties (p.) ltd. v. federal motors (p.) ltd. : (2005) 1 scc 705, while fixing the damages.16. the petitions succeeds and is allowed with the aforesaid observations. no order as to costs.