RAM CHANDRA SHARMA Vs. VEERA SAINI

JUDGEMENT

(1.) THIS civil misc. appeal has been preferred by the plaintiff-appellants against the order dated 4. 4. 1998 whereby learned Additional District Judge No. 6, Jaipur City, Jaipur remanded the case to the Trial Court for afresh decision after hearing on certain points.

(2.) THE plaintiff-appellant No. 2 Smt. Kamla Devi filed a suit for eviction in May, 1991 with the averments that suit house was let out to the defendant in the year 1987. Prior to that her husband was the tenant who died in the year 1987. Eviction was sought on the ground of reasonable and bonafide requirement and alternative accommodation available to the defendant.

(3.) I have considered the rival submissions. Order 41 Rule 23 C. P. C. provides that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case. Rule 23-A provides that where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. Rule 25 provides that where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required. None of the above provisions are applicable in the instant case. A perusal of the impugned judgment goes to show that this order of remand is not passed under the provisions of Rule 23, 23-A and 25 C. P. C. Rule 24 C. P. C. provides that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. In the instant case either party did not make any prayer that some additional issue should be framed or additional evidence is required and for that the case should be remanded to the Trial Court. The evidence of both the parties was available on the record and the points which require consideration according to the First Appellate Court should have been decided on the basis of the evidence available on the record. According to learned counsel for the appellants, there are pleadings and the evidence of both the parties covering all the three points which required afresh consideration according to the First Appellate Court. The judgment delivered by the Hon'ble Supreme Court in P. Purushottam Reddy and Another's case (supra), is fully applicable in the instant case.