SADASHIV Vs. MURLIDHAR CHOUHAN

JUDGEMENT

(1.) This revision filed by the plaintiff is directed against an order dated 5th March, 1981 passed by the 6th Additional District Judge Indore, in Civil First Appeal No. 19-A of 79, remanding the case to the trial Court for fresh decision on an issue which has subsequently arisen and directing the trial Court to remit its findings to that Court.

(2.) The short facts giving rise to this revision petition, material for the decision of this case at this stage are that the plaintiff-applicant filed an eviction suit against the respondent as his tenant on the grounds of Sec. 12(l)(a) (e) and (o) of the M.P. Accommodation Control Act. The learned trial Court on evidence dismissed the plaintiff's suit. The plaintiff-appellant filed an appeal before the lower appellate Court. The respondent filed an application under Order 6 Rule 17 Civil Procedure Code before the learned lower appellate Court to the effect that the appellant who is serving as an Officer at the State Bank of India has been transferred to Ujjain and consequently his bona fide requirement has come to an end. The appellant by his reply categorically denied this fact and also produced certain documentary evidence prima facie to show that he has not been transferred. However, subsequently the respondent filed another affidavit, though it was not, supported by any document. The learned lower appellate Court, after hearing the appeal on merits and also after hearing arguments on the said amendment application, instead of deciding the appeal on merits remanded the case to the trial Court to frame an issue as to whether the plaintiff-appellant has been transferred from Indore or not and submit his finding within a period of two months to the learned lower appellate Court.

(3.) In this revision it is the grievance of the applicant that the learned lower appellate Court, after hearing the appeal on merits at length first ought to have decided whether the plaintiff has succeeded in proving his bona fide need for residence or not and it is only after he had come to that conclusion that he could consider the subsequent event as to whether the said bona fide requirement has come to an end because of the alleged transfer of plaintiff from Indore to Ujjain. The learned counsel further submitted that as a matter of fact the plaint allegations clearly indicate that the bona fide requirement is not only for the plaintiff himself but also for his family members which fact has been completely lost sight of by the learned lower court and in fact the learned lower appellate Court has concentrated merely on the amendment application instead of deciding the appeal on merits. He further contended that the learned lower appellate Court has committed an error in relying on the decision reported in 1980 JLJ, Page 300 wherein the facts were that after a decree for ejectment was passed by a subsequent event it was alleged that the landlord has received additional accommodation. He, therefore, submitted that the said case is distinguishable so far as the present case is concerned as unless and until the learned lower appellate Court first finds the decision on the issue of bona fide requirement in favour of the plaintiff-appellant the question of considering the subsequent event, if any, does not arise. He further urged that this is neither a remand under Order 41, Rule 23 Civil Procedure Code or 23-A or under Rule 25 Civil Procedure Code but a remand under section 151 Civil Procedure Code which position was not disputed on behalf of the respondent.