Allowed

Purushotam v. Smt. Sulochana

Rajasthan HC26 Nov 2018CSA/179/2016

Case brief

AI extract

What is this about?

In a second appeal against an eviction decree, the High Court held that the first appellate Court erred in deciding the case finally relying on additional evidence under Order 41 Rule 27 CPC without complying with Order 41 Rules 23 and 23A. The court dismissed the appeal had been dismissed below, but the current appeal is allowed, setting aside the decree and remanding the matter to the trial cour

What did the court decide?

Impugned judgment and decree set aside; matter remanded to trial Court for deciding Issues 4, 6 & 7 afresh within one year.

Purushotam Vs Smt. Sulochana — Landlord and Tenant | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 179/2016

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Purushotam S/o Shri Madanlal Kediya, aged about 64 years, Proprietor of M/s Mangalam Trading Company, Gol Piau Circle, Bhilwara (Raj.)

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----Appellant

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Versus

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Smt. Sulochana Devi w/o Shri Abhay Kumar Ajmera, resident of Gol Piau Circle, Bhopalganj, Bhilwara (Raj.)

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----Respondent

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For Appellant(s) : Mr. Sajjan Singh For Respondent(s) : Mr. Dhanesh Saraswat

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HON'BLE MR. JUSTICE P.K. LOHRA

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Judgment

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26/11/2018

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Appelllant-defendant has preferred this second appeal to challenge judgment and decree dated 19.07.2016 passed by Additional District Judge No.2, Bhilwara (for short, ‘learned first appellate Court’), whereby learned first appellate Court, while allowing appeal of the respondent-landlord, decreed her suit for eviction against him.

¶13

At the threshold, respondent-plaintiff instituted a suit for eviction and arrears of rent against appellant before Civil Judge, (Sr. Div.), Bhilwara (for short, ‘learned trial Court’). Learned trial Court, on the basis of evidence available on record, decided Issue Nos.2, 3, 4, 6 & 7 against the respondent-plaintiff and consequently dismissed the suit. Being aggrieved by the same, respondent-landlord preferred appeal before learned first appellate Court and during pendency of the appeal, at her behest, an

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(2 of 4)

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[CSA-179/2016]

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application under Order 41 Rule 27 CPC was also laid for producing additional evidence.

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Learned first appellate Court heard final arguments and simultaneously heard arguments on application under Order 41 Rule 27 CPC also. After hearing rival parties, learned first appellate Court allowed application of the respondent-plaintiff under Order 41 Rule 27 CPC by taking additional evidence on record, and by relying on the same allowed the appeal, which eventually resulted in decreeing the suit.

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I have heard learned counsel for the parties.

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Upon perusal of the judgment passed by learned first appellate Court, the appeal is admitted on following substantial question of law:-

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Whether the learned first appellate Court was justified in deciding the appeal finally by resorting to Rule 24 of Order 41 CPC without recording its satisfaction about requirements envisaged therein in utter disregard to Rules 23 and 23A of Order 41 CPC?

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With the consent of learned counsel for the parties, matter is heard finally at this stage.

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While it is true that Order 41 Rule 27 CPC empowers an appellate Court to take additional evidence on record which may enable it to pronounce of judgment, or for any substantial cause but then after allowing the additional evidence, under what contingencies appellate Court can decide the appeal finally by resorting to Rule 24 of Order 41 CPC or otherwise remand the matter under Rule 23 and 23A CPC.

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(3 of 4)

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[CSA-179/2016]

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In the instant case, the lis involved in the matter was eviction of the appellant (tenant) from rented premises on reasonable and bona fide necessity of respondent-landlord. Respondent landlord craved for eviction of the appellant from rented shop by pleading reasonable and bonafide necessity of parking vehicles of her family members.

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Learned trial Court, upon appreciation of evidence, decided Issues No.2, 3, 4, 6 & 7 against the respondent-landlord with a specific finding that she has miserably failed to prove reasonable and bona fide necessity. Learned first appellate Court, while reversing the said finding, has relied upon the additional evidence tendered by respondent-landlord. For recording its finding in favour of respondent landlord, learned first appellate Court has not only considered additional evidence but also relied upon alleged admission of the appellant that a car is owned by respondent. In recording satisfaction about reasonable and bona fide necessity of the respondent-landlord, learned first appellate Court has completely overlooked that an opportunity to the appellant-tenant to counter the same is essential. In my considered opinion, learned first appellate Court has failed to examine the true purport of Rule 23 and Rule 23A of order 41 CPC.

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There remains no quarrel that appellate Court while taking additional evidence on record can very well determine the case finally when it records its satisfaction that evidence available on record is sufficient but then it is also expected of the appellate Court to take into consideration the mandate of Rule 23 and 23A of Order 41 CPC besides the subject-matter of the suit. In normal

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(4 of 4)

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[CSA-179/2016]

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circumstances, when additional evidence is taken on record where the issue involved is contentious; more particularly, like reasonable and bona fide necessity, it is very much desirable for the Court to remand the matter for furnishing an opportunity to the opposite party to tender evidence, if any. On overall analysis of the finding recorded by learned first appellate Court, I am afraid, same is falling short of the requirements envisaged under Order 41 Rule 24 CPC, and furthermore the learned first appellate Court has completely overlooked Rules 23 and 23A of Order 41 CPC. Consequently, substantial question of law framed deserves decision in favour of appellant and against the respondentlandlord.

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In this view of the matter, the impugned judgment and decree passed by learned first appellate Court is set aside and the matter is remanded back to learned trial Court for deciding Issue Nos.4, 6 & 7 afresh strictly in accordance with law.

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As the suit was filed the respondent in the year 2002, learned trial Court is expected to dispose of the suit as early as possible preferably within a period of one year.

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The appeal is accordingly allowed.

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Office is directed to send back record to the learned trial Court forthwith.

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Bharti/-3

Purushotam v. Smt. Sulochana

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Purushotam v. Smt. Sulochana

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