SEWA SINGH Vs. KRISHNA KANT

JUDGEMENT

(1.) THE appellant/tenant has filed this appeal being aggrieved by the judgment and decree dated 28.2.1997 passed by the 11th Additional Judge to the Court of District Judge, Jabalpur in Civil Appeal No.27-A/95 whereby the judgment and decree passed by the Second Civil Judge Class-I, Jabalpur in Civil Suit No.41-A/95 dated 25.9.1995 has been partly modified.

(2.) THE brief facts, leading to the filing of the present appeal, are that the appellant is a tenant of residential House No.1416/8, Gupteshwar Ward, Jabalpur for a rent of Rs.250.00 per month. It is stated that the original landlord Shri Narayan Shanker filed a suit for eviction against the appellant on the ground of arrears of rent and for bonafide residential requirement of his sons under sections 12(1)(a) and 12(1)(e) of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') respectively. The suit, filed by the original plaintiff Shri Narayan Shanker was partly decreed on the ground mentioned under section 12(1)(e) of the Act by the trial court by judgment and decree dated 13.7.1990, being aggrieved by which the appellant had filed an appeal before the Appellate Court during the pendency of which the original plaintiff Narayan Shanker expired and was thereafter represented by his legal representatives i.e. his sons respondent nos.2(a) and 2(b). On account of the death of the original plaintiff, the appellant had filed an application alleging that the bonafide need of the respondent/plaintiff do not survive as he had died and, therefore, the matter was remanded back by the appellate court by order dated 13.2.1995. On remand, the suit was again decided by the trial court by judgment and decree dated 25.9.1995 and the suit filed by the respondents under section 12(1(a) and 12(1)(e) of the Act for arrears of rent and bonafide need respectively was decreed in toto. The appellant, being aggrieved, had filed an appeal against the said judgment and decree which has been partly allowed by the impugned judgment and decree dated 28.2.1997 and while the eviction of the appellant under section 12(1)(a) of the Act has been affirmed, the decree for eviction under section 12(1)(e) of the Act has been set aside on the ground that the rent controlling authority had the exclusively jurisdiction to decide the issue on account of the fact that the respondents are Government servants and the civil court had no authority to do so in view of the provisions of Section 45 of the Act.

(3.) FOR the purpose of deciding the first substantial question of law raised by the appellant, it is necessary to examine the order of remand passed by the appellate court dated 13.2.1995. On a perusal of the order of remand it is apparent that the remand, made by the appellate court under Order 41 Rule 23 of the CPC, was not a restricted one and was an order of total and complete remand. In fact the appellate court has clearly directed the trial court, while remanding the matter, to pass a fresh and de-novo judgment.