SURAJMAL CHOUDHARY (SINCE DECEASED) THROUGH HIS LRS. SMT. RATAN DEVI AND ANOTHER Vs. PREM CHAND AND OTHERS

JUDGEMENT

(1.) This Civil Misc. Appeal under Sec. 104 read with Order ; Rule, 1(U) C.P.C. has been filed by the appellant-defendant (hereinafter the defendant') against the order dated 3.8.2007 passed by the learned Additional strict Judge No. 2 Jaipur City, Jaipur (hereinafter 'the Lower Appellant Court' whereby the judgment and decree dated 3.12.2003 passed by the learned Addl.) Civil Judge (Senior Division), No. 6 Jaipur City, Jaipur (hereinafter 'the Trial Court') was set aside and the matter remanded to the Trial Court for reconsideration afresh after granting an opportunity to the respondent plaintiff (hereinafter 'the plaintiff) for leading evidence on issues Nos. 1,7,8 and 10.

(2.) Counsel for the appellant-defendant (hereinafter 'the defendant') has submitted that the impugned Order dated 3.8.2007 is beyond the scope of Order Rules 23, 23A & 25 C.P.C. None of the grounds for remand were made out. The Trial Court had dismissed the plaintiffs suit for eviction in absence of any evidence to prove the ground of default against the defendant and in-fact on 17.10.2003 Counsel for the plaintiff had stated that the does not want to lead any evidence. It has been submitted that the dismissal of the suit by the Trial Court for want of evidence conferred a valuable right on the defendant and that right mid not be casually taken by the Appellate Court without good cause within the four corners of law. Counsel for the defendant relied upon the judgment of this Court in the case of Ram Chandra Sharma & Anr. Vs. Smt. Veera Saini, 2005(1) R 737 to contend that when the requisite evidence for adjudicating the dispute available before the Appellate Court it shall decide the appeal in-stead of setting aside a valid and well reasoned judgment and decree of the Trial Court ,id remanding the matter without good cause. Reliance has also been placed upon the judgment of this Court in the case of B.B. Bhalla Vs. Rameshwar Kishore Badhwar, 2001(1) RCR 453 wherein this Court held that even where the defence f the defendant is struck off under Sec. 13(5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter 'the Act of 1950') it would be necessary for the landlord to establish the grounds for eviction agitated in the petition by adducing requisite evidence to prove that the defendant tenant was a defaulter and absent such evidence at the instance of the plaintiff a suit is liable to fail despite the defence of the defendant having struck off. Reference has; been made to the judgment of this Court in the case of Smt. Ramjanki Vs. Smt. Dhanni Bai & Ors., (SB Civil Misc. Appeal No. 3192/2012) decided on 2.9.2013 wherein this Court held that subsequent to the amendment to the C.P.C. in id is only in 'exceptional cases' where the Court can exercise the power of remana hors Order 41 Rules 23 and 23-A C.P.C. for the reason that an un-warrant remand increases the life of a litigation and is not conducive to the administration of justice. Finally reliance was placed on the Judgment of the Honourable Supreme Court in the case of P. Purushottam Reddy & Anr. Vs. Pratap Steels Ltd., (2002) 2 SCC 687 to reiterate that unless the conditions detailed Order 41 Rules 23 and 23-A C.P.C. or otherwise Rule 25 C.P.C. were fulfiller remand should not be made casually and the Appellate Court should itself decided an appeal on merits even where an issue has not been framed by the Trial Court in the event of adequate evidence being on record. Great emphasis was finally placed on Para 12 of the said opinion of the Honourable Apex Court in the case of P. Purushottam Reddy & Anr. (supra) which for facility of reference is being reproduced as under:-

(3.) Mr. Alok Garg, Counsel appearing for the plaintiff has submitted that the back-ground facts of the case need consideration and not dry legalese. h submitted that the suit for eviction was filed in the year 1993. In-spite of service reply thereto was not filed for five years. The matter was put for plaintiff evidence. On 22.4.1998 in the course of the plaintiffs examination-in-chief, an application was moved by the defendant to take his written statement on ream as the defendant in-spite of filing appearance before the Court, had not filed his written statement in-spite of several opportunities albeit but had not been mil ex-parte. Consequently, the Trial Court aborted the plaintiffs examination-in-chief mid-way recording that "the statements of the witnesses are deferred because the defendant filed the application to file written statement. Hence the statement: this witness may be kept on record for further action." (Emphasis supplied).Tit written statement was filed and issues were framed. The plaintiff stated that other than the ground of default other grounds mooned.