RABINDRA NATH DAS Vs. NILOY KUMAR MOITRA

JUDGEMENT

(1.) This is an appeal at the instance of the defendant directed against the judgment of the Appeal Court passed in Title Appeal No. 25 of 1990 dated 8th September, 1990 passed by the learned Assistant District Judge, Asansol, Burdwan by which the Appeal Court has sent the case back on remand to the Court of Trial being the Second Court at Asansol in order to dispose of the same, only in respect of issue No. 6 as framed in the trial with opportunity to lead evidence by the parties. The defendant being aggrieved by the said judgment has preferred the instant appeal. The original lis is one of eviction of the defendant from the suit premises on multiple grounds. The defendant is a tenant under the plaintiff at a monthly rental of Rs. 260/payable according to English Calendar month. A notice of eviction has been appended to the plaint dated 26.11.1986. From the tenor of which it appears that the same was a composite notice under section 13(6) of the West Bengal Premises Tenancy Act as read with section 106 of the Transfer of Property Act. The said notice is under challenge. The learned Munsif in the trial has proceeded on the footing that service of notice has been challenged but not the legality of the same which is dissented from on perusal of the pleadings by the Appeal Conn. It appears from the reading of the written statement that on both the grounds of service as well as the legality though the same has been cryptically mentioned has been attempted to be assailed. There is no doubt the notice is the foundation of a suit for eviction and the cause of action of the suit also may be discerned from the recital in the notice. At the time of hearing in the trial a notification was preferred to being Notification No. 14686-LR/P/P67/71 dated 26.9.72 by which it has been alleged to be suggested that there was an extension of the applicability of the West Bengal Premises Tenancy Act in the area in which the suit property is situate. But subsequently thereto it appears to be admitted position that the suit property is situate outside the purview of the area of operation of the West Bengal Premises Tenancy Act on the material date. The Appeal Court also tends to proceed on the premise that the suit is one under the Transfer of Property Act. However, the notice contains to suggest that grounds have been taken therein in terms of several clauses of section 13 (1) of the West Bengal Premises Tenancy Act about termination of tenancy do the impression that the suit property is situate within the jurisdiction of the said Act. From the ultimate description contained in the notice it appears that the attempt has been made to project the notice as a composite one under section 13(6) of the West Bengal Premises Tenancy Act, read with section 106 of the Transfer of Property Act. A reference in this context may be made to a decision in the case of V. Dhanpal Chettiar v. Yesodai Ammal, reported in AIR 1979 SC 1745 where it has been laid down that in order to fet the decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under section 106 of the Transfer of Property Act. Determination of lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. Here the parent clause being one under the provisions of section 13(1) of the West Bengal Premises Tenancy Act and apposite situation arises. Therefore the legality of the notice is very much under question before both the Courts below. There are number of issues framed by the Trial Court and the Appeal Court remitted the case back only in respect of issue No. 6 with an option to the parties so that they can lead further evidence in aid of determination of the respective issues. The issue No. 6, as it appears, was couched in the following manner : "Was the notice duly served? If so, was the notice valid and legal?" Inspire of second part of Issue No. 6 the learned Munsif in the trial did not consider the same as according to the Trial Court the same was not a triable issue. The said stand taken by the trial court does not only militate against the issue itself but also it stands contrary to the pleadings of the parties. There is, however, remittance of the matter by the appellate court to the trial court for determination of issue No. 6 exclusively keeping aside other issues and the appellate court can call for a finding on that specific issue, but at the same time the appellate court will be required to get the appeal pending and ultimate decision will rest on the appellate court after getting an answer from the trial court on the specific issue framed by the same. The procedure as aforesaid is contemplated under Order 41 Rule 25 of the Code of Civil Procedure. But the same has not been followed by the appellate court as .a result of which the order of remand suffers patent irregularity and also jurisdictional infirmity.

(2.) The Appeal Court instated of deciding the question of legality of the issue has remitted the case back to the trial court without opining as to whether the materials available to the Court are sufficient to warrant and inference by the Appeal Court. It is salient to mention in this context that Order 41 Rule 24 contemplates that where evidence on record is sufficient for the Appeal Court to enable itself to pronounce judgment. It should finally determine the suit. In this context is the light of the provisions of Order 41 Rule 24 of the Code of Civil Procedure a reference may be made with regard to the celebrated observations of Rankin, C.J. in the case of Promotha Nath Mazumdar v. Nagendra Nath Mazumrlar, reported in 33 CAN 1211 at page 1215 where His Lordship observed in the following manner :

(3.) The Appeal Court's judgment suffers from intrinsic infirmity because of non-compliance of the provisions of Order 41 Rule 25 of the Code of Civil Procedure and for not coming at a conclusion for itself. The practice of shifting the liability of onus to Court which is subordinate is something which is deprecated as the Court should lean in favour of bringing about the finality in litigation. The Court should not he a party so that because of its order it may not lead to proliferation of litigation and the litigant should not he made to sit in musical chair for indefinite period since the period likely to be consumed in a proceeding under Second Appeal well be fairly long.