SHARMA, J. - (1.) MUNSIF, Tonk, by his decree dated 5th Apr. , '76 decreed Civil Original Suit No. 321 of 1972, filed by landlords Karam Chand and Deva Lai against Lallu Ram respondent No. 1. Ejectment of tenant Lallu Ram was claimed on grounds of defaults and reasonable and bonafide personal necessity of the demised house. The MUNSIF found that the suit house was reasonably and bonafide required by the landlords for their own use.
(2.) LALLU Ram tenant filed Civil First Appeal No. 55/76 in the court of District Judge, Tonk. In view of the amendment made in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 amending section 14 (2) of the said Act, which provides that decree for ejectment on ground of personal necessity will not be passed against the tenant if comparatively there will be greater hardship to the tenant in passing the decree for ejectment rather from withholding it, the District Judge, Tonk, by his judgment dated 20. 4. 78, set aside the decree of Munsif, Tonk and remanded the suit for fresh decision with the directions that the Munsif will frame an additional issue with respect to the point covered by S. 14 (2) of the Act and after giving the parties reasonable opportunity of adducing evidence, decide the case afresh. It is against this remand order that Karam Chand co-landlord has filed this second appeal. Mr. N. K. Maloo appearing for the tenant has urged that Deva Lal, who was co-landlord and who was respondent No. 2 in this appeal, had expired on 15. 06. 1979 and application for substituting the legal representative of Deva Lal was filed by the appellant on 3rd Dec, 1981 i. e. after the expiry of the period of limitation. No application for setting aside abatement and u/s. 5 of the Limitation Act was filed by the appellant. The appellant has mentioned in his application that he did not know about the death of Deva Lal prior to 6th Nov. , 1981 when summons issued to him in this appeal were received with the report of the process server that Deva Lal had died sometimes in June, 1979. He has presented the application on acquiring knowledge about the death of Deva Lal in this manner. Lack of knowledge of the death of Deva Lal pleaded by the appellant in his application has no merit in it. It would appear from going through the file of the Munsif, Tonk that on 4. 07. 1980, the appellant had filed a reply to the application filed by the tenant dated 28th Feb. ,'80 and in that application, the appellant had mentioned about the death of Deva Lal. It goes to show that even on 4. 07. 1980, the appellant had knowledge about the death of Deva Lal. His assertion that he had no knowledge about the death of Deva Lal prior to 6th Nov. , 1981 is, therefore, clearly false. The application for substitution of legal representative of Deva Lal having been filed after the prescribed period for limitation despite full knowledge of the death of Deva Lal, has clearly resulted in abatement of this appeal as against Deva Lal. It may be mentioned that Deva Lal was a co-landlord and, therefore, this appeal does not abate as a whole but only abates as against Deva Lal. It was next urged by the learned counsel for the tenant that the order passed by the District Judge, Tonk is an order of remand under Order 41 Rule 23-A of the Code of Civil Procedure and against that order, an appeal lies under Order 43 Rule 1 (u ). He urged that the remand order of the District Judge is not as decree and, therefore, second appeal filed by the landlord has not maintainable. Since the trial court had not disposed of the suit upon a preliminary point and despite that the decree was reversed by the first appellate court and retrial was considered necessary, remand order was passed. Such an order falls under Order 41 Rule 23-A of the Code of Civil Procedure and against such an order, appeal lies under Order 43 Rule 1 (u) CPC. No second appeal therefore lies against the remand order of the District Judge, Tonk. The remand order of the District Judge is not a decree and, therefore, it was only appealable as an order and appeal lay against the order. The learned counsel for the appellant stated that this second appeal may be treated as an appeal against the order of remand of the District Judge, Tonk under Order 43 Rule 1 (u) CPC. There does not appear to be any difficulty in treating this second appeal as an appeal against the order of remand and it is treated accordingly. Coming to the merits of this appeal, it is quite clear that the sole reason on account of which the District Judge, Tonk remanded the suit to the trial court was that the Raiasthan Premises (Control of Rent and Eviction) Act, 1950 had been amended and according to S. 14 (2) of the said Act, as amended, a decree for ejectment against a tenant on ground of reasonable and bonafide requirement of the premises could not be passed unless it was satisfied that the comparative hardship to the landlord would be greater than to the tenant if a decree for ejectment was passed. There was no other reason which had actuated the District Judge, Tonk to remand the suit. In such circumstances, it was urged by the learned counsel for the appellant that the District Judge should have framed an additional issue on the point and should have referred the same for trial to the Munsif after taking additional evidence required instead of remanding the whole suit for retrial after setting aside the decree passed by the Munsif. Mr. N. K. Maloo appearing for the tenant has urged that after remand of the suit, the trial court has already framed the additional issue and the parties have also evidence and the case was at the stage of final arguments. He, therefore, urged that in such circumstances, the order of the remand passed by the District Judge should not be disturbed. He referred to a decision of the Punjab & Haryana High Court in Brij Lal vs. Muni Tandon (1 ). It may be mentioned that in Brij Lal's case, it was the tenant who had come in revision before the Punjab & Haryana High Court and it was urged on his behalf that the appellate authority has no jurisdiction to remand the case and that the subsequent trial held by the Rent Controller was without jurisdiction. In that context, it was observed that the tenant had obtained full advantage of the order of remand and took the chance of disproving the issue by leading evidence. After they had failed to do so, it was improper on the part of the appellate authority of the revisional court to allow them to turn round and ask that the order of remand was without jurisdiction. It may be mentioned that in Brij Lal's case, after the remand, the Rent Controller had already decided all the issues and passed an order for ejectment against the tenant and it was in appeal against the order of ejectment that this plea was raised by the tenant. In the case before me, after the remand made by the District Judge, Tonk, the Munsif Tonk has not so far decided the suit. All that has happened is that the parties have adduced additional evidence. It is the landlord who is coming to this Court to challenge the order. Findings about reasonable and bonafide requirement of the demised premises was already there in favour of the landlord as given by the trial court earlier in its judgment dated 5th Apr. '76. In these circumstances, the landlord has every right to urge before this Court in this appeal that the District Judge, Tonk instead of remanding the whole suit should have only remitted the additional issue in relation to the matter covered by S. 14 (2) of the Act. Order 41 Rule 25 of the Code of Civil Procedure clearly provides that where the court from whose decree the appeal is preferred has omitted to frame or try and 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. The trial court has then to proceed to try such issues, and to return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within the time as may be fixed by the Appellate Court or extended by it from time to time. In the present case, Order 41 Rule 25 of the Code of Civil Procedure squarely applied. The District Judge, Tonk therefore, instead of reversing the decree and ordering the retrial and fresh decision, should have acted under Order 41 Rule 25 CPC and not under Order 41 rule 23-A CPC. The order of the District Judge, Tonk is clearly wrong. Learned counsel for the tenant referred to the decision in Bhanwarlal vs. Nathmal This decision is not helpful to the tenant because the point involved in that case was as to whether the amendment made in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by Ordinance No. 26 of 1975 incorporating S. 14 (2) in the Act had retrospective operation and was applicable to pending appeals or not. This Court held that the provisions contained in sub-section (1) & (2) of S. 14 as amended by Ordinance No. 26 of 1975 had retrospective operation and were applicable to pending appeals. It might be that the learned Single Judge while allowing the appeal filed by the tenant, set aside the decrees and judgments of the Courts below and remanded the case to the trial court for framing an appropriate issue in the light of the amendment. The learned Judge in that case did not examine the question whether in such a case, the issue should have been remitted as provided under Order 42 Rule 25 CPC or that the whole case should be remanded. An authority is a proposition on a point which directly arises in the case and decided. The question as to under what provision the remand should be made was not at all examined in that case.
(3.) THE learned counsel for the tenant also referred to the decision in Anand Prakash vs. Abdul Kayoom With regard to this decision, it may be stated that it was a second appeal and the learned Single Judge did not remand the case to the trial court and remanded it to the Addl. District Judge, who had heard the first appeal and had directed the Addl. District Judge to give opportunity to the parties to lead evidence on the sole question covered by S. 14 (2) of the Act and then to decide the first appeal. In this case also, the question was not examined whether the entire case should have been remanded or only an issue should have been remitted for findings to the first appellate court. In Bhikam Chand vs Tara Chand (4), a learned Single Judge of this Court held that an issue ought to have been framed and remitted to the trial court by the lower appellate court and that the lower appellate court had erred in law in setting aside the judgment on all other issues without entering into the examination of the merits of those issues. I agree with this conclusion in Bhikam Chand's case. Consequently, this appeal is allowed, the order of remand made by the District Judge, Tonk is set aside. Since in the present case, the Munsif, Tonk in pursuance of the remand order has already framed additional issues on 28. 04. 1978 and has also recorded additional evidence adduced by the parties, the only direction now needed is that the Munsif, Tonk will only give his findings on the additional issues framed by him on 28th Apr. , '78 and will remit his findings on issues Nos. 5-B and 5-C only framed by him to the District, Judge, Tonk and after receipt of the findings of the Munsif, the District Judge, Tonk will decide the first appeal No. 55/76 in accordance with the provisions contained in Order 41 Rule 26 of the Code of Civil Procedure. The order of the District Judge whereby he has set aside the judgment and decree of Munsif, Tonk dated 5th Apr. , '76 will stand set aside. The Munsif, Tonk is directed to remit his findings on issues Nos. 5-B and 5-C framed by him to the District Judge, Tonk within four months. The District Judge will restore Civil First Appeal No. 55/76 to its original number. . ;