BALKRISHNA Vs. SOMNATH THROUGH LRS

JUDGEMENT

(1.) Being aggrieved by the judgment dated 13-1-2006 passed by District Judge, Ujjain in Civil Appeal No. 38-A/05 whereby the judgment dated 13-5-2005 passed by IV Civil Judge Class I, Ujjain in Civil Suit No. 129-A/02 whereby the suit filed by the appellant was decreed under Section 12 (1) (f) of the Accommodation Control Act (which shall be referred hereinafter as "the Act") was set aside and the case was remanded with a direction to re-frame additional issue and decide the same on merits, the present appeal has been filed. Short facts of the case are that appellant filed a suit for eviction against the respondent alleging that respondent was tenant in the suit accommodation @ Rs. 55/- per month. It was alleged that appellant requires the suit accommodation bonafidely for carrying on the business of appellant himself and his son Jitendra. In the suit it was alleged that after eviction appellant shall reconstruct the house which includes the suit shop for which appellant is having sufficient funds and has also obtained permission from the Municipal Corporation. It was prayed that decree of eviction be passed. The suit was contested by the respondent. The tenancy was not denied in the written statement, however, it was denied that appellant is entitled for decree of eviction as alleged by the appellant. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned Trial Court decreed the suit against which an appeal was filed by the respondent which was allowed and the case was remanded, against which the present appeal has been filed.

(2.) Mr. V.P. Saraf, learned Counsel for appellant argued at length and submits that impugned judgment is illegal and deserves to be set aside. It is submitted that appellant has not prayed for decree of eviction under Section 12 (1) (h) of the Act regarding reconstruction of house but prayed eviction on the ground of bonafide requirement. Learned Counsel submits that appellant makes a declaration in the Court that appellant is not claiming decree under Section 12 (1) (h) of the Act but the appellant is claiming decree under Section 12 (1) (f) of the Act. Learned Counsel placed reliance on a decision in the matter of Ashok Vs. Shakuntala Bai,,2005 I MPACJ 136, wherein this Court has held that requirement of Section 12 (1) (h) is to be complied with only when the ground is taken under Section 12 (1) (h) but not otherwise. Learned Counsel submits that since the decree as prayed is under Section 12 (1) (f) of the Act therefore, requirement of Section 12 (1) (h) was not required to be complied with or proved and also there was no necessity to frame separate issue in this regard. Learned Counsel further placed reliance on a decision in the matter of T.R. Sah Vs. Smt. Kundan Kaur and others, 2005 4 MPHT 304, wherein landlord pleaded that he required the premises bonafidely for occupation of himself and his family; he also stated that premises was in a damaged condition and required repairs it was held that averments relating to dismantling the roof and its reconstruction, it is not an independent ground but a part of the ground under clause (e); he establishes a case for eviction under Section 12(1)(e), he will be entitled to an order under Section 12(1) (e); in such an event it will be immaterial whether he demolishes the building or not; when a Court grants an eviction under clause (e), it shall dispose of the claim under clause (h), as having become infructuous or rendered redundant.

(3.) Learned Counsel for respondents submits that appeal filed by the appellant itself is not maintainable. Learned counsel submits that order of remand can be passed under Order XLI Rules 23, 23-A and 25, CPC. Learned Counsel submits that order of remand can be passed under Order XLI Rule 23, CPC only when the suit has been decided on preliminary issue. Since the suit was decided on merits therefore remand could not have been ordered under Order XLI Rule 23, CPC. So far as Rule 23-A is concerned, learned Counsel submits that power can be invoked by the Appellate Court when the suit has been decided by the learned Trial Court otherwise than on a preliminary point. Learned Counsel submits that in the facts and circumstances of the case when the suit was decreed on merits, therefore powers could not have been invoked by the Appellate Court under Order XLI Rule 23-A, CPC. It is submitted that powers have been exercised by the Appellate Court under Order XLI Rule 25, CPC and the order of remand passed under Order XLI Rule 25 is not appealable. It is submitted that only on this ground the appeal deserves to be dismissed. Learned Counsel submits that from the pleadings it is evident that suit as filed by the appellant before learned Trial Court was for a decree of eviction under Section 12 (1) (f) and 12 (1) (h) of the Act. Appellant has pleaded all the ingredients for a decree under Section 12 (1) (h) coupled with Section 12 (1) (f) of the Act. Evidence was also adduced by the appellant in that regard and also case was argued by the appellant under Section 12 (1) (h) of the Act, therefore, in the facts and circumstances of the case it is wrong to say that suit was filed under Section 12 (1) (f) of the Act. It is submitted that in the facts and circumstances of the case no illegality has been committed by the Appellate Court in passing the impugned judgment. Pressing to the maintainability of appeal, learned Counsel submits that order filed before this Court is maintainable. For this contention, learned Counsel placed reliance on a decision in the matter of Rajinder Singh Vs. Pushpa Devi Bhagat, 2004 AIR(Del) 227 wherein order setting aside decree of Trial Judge and remanding case for decision on merits, it was held that appeal from such orders falls within category of 'appeal from order' as described in Order 43 Rule 1 (u) and appeal is maintainable. It was further observed that its description by Registry as first appeal or second appeal is of no consequence.