SHARMA, J. - (1.) THROUGH appeal under Order 43 Rule 1 (u) read with Sec. 104 C. P. C. , the defendant appellant seeks to quash the order dated 17. 8. 2004 passed by the Additional District Judge (Fast Track) No. 2, Jaipur, by which the learned Judge has allowed the application filed by the defendant appellant under Order 6 Rule 17 CPC, set aside the judgment and decree passed by the Trial Court and remanded the case to the learned Trial Court with the direction to afford opportunity to lead evidence on the issue of reasonable and bona fide necessity to both the parties and then to decide the suit afresh.
(2.) THE plaintiff respondent filed a suit against the defendant appellant for eviction and permanent injunction on the grounds of default in payment of rent, change of user and reasonable and bonafide necessity of the suit premises for his son. Both the parties contested the suit. At the conclusion of trial, the learned Trial Court dismissed the plaintiff's suit for eviction and permanent injunction vide its judgment and decree dated 31. 3. 2004. Feeling aggrieved by the judgment of the Trial Court, the plaintiff filed an appeal. On 13. 8. 2004, the defendant appellant filed an application under Order 6 Rule 17 CPC and the appellate court decided the application in the manner indicated above. It is worthy to mention here that the defendant moved an application before the appellate court to bring on record the subsequent events viz. , (i) the plaintiff has got an alternative accommodation for the business of his son which he purchased in Jaipur and (ii) Akram S/o plaintiff defendant has shifted from Jaipur to Udaipur and has been permanently residing there. In view of these facts having been brought on record, the question that requires consideration would be, whether the order of remand passed by the appellant court is sustainable or not and to decide this question, the legality and propriety is required to be examined. The legal proposition is well settled that when an action is brought by a landlord for eviction of a tenant on the ground of personal requirement, the landlord's need must not only be shown to exist at the date of the suit but it must exist on the date of appellate decree or the date when a higher court deals with the matter. During progress of the proceedings from court to court, if subsequent events occur which if noticed would not suit the landlord, the court has to examine and evaluate these events and mould the decree accordingly. It appears to me that the learned appellate court, keeping in view the above settled position of law, has allowed the application of the tenant filed under Order 6 Rule 17 CPC to bring on record the subsequent events and directed the Trial Court to afford opportunity to lead evidence on the issue of reasonable and bona fide necessity to both the parties and then to decide the suit afresh. After insertion of Rule 23-A in Order 41 of Civil Procedure Code by the CPC Amendment Act, 1976, the provisions contemplating remand by a court of appeal are Rule 23, 23-A and 25 of Order 41. Rule 23 applies when the Trial Court disposes of the entire suit by recording its finding on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. The remand contemplated by Rule 25 authorises the subordinate court to try only such issues as are referred to it for trial by the appellate Court. Rule 23-A provides that where a court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary issue and the decree is reversed in appeal and retrial is considered necessary, the appellate Court shall have the same power as it has under Rule 23. Therefore, all the cases of whole-sale remand are covered by Rules 23 and 23-A CPC. It need be mentioned that an appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or 23a or Rule 25 C. P. C. In the case at hand, a glance at the judgment of the Trial Court makes it clear the Trial Court did not dispose of the suit upon a preliminary point. It has decided the suit by recording finding on all the issues. The first appellate court has neither recorded its finding on any of the issues nor has framed any issue to be decided by the Trial Court. While allowing the application filed under O. 6 R. 17 CPC the first appellate court has directed the Trial Court to record evidence on the issue of reasonable and bonafide necessity and for that purpose remanded the case after setting aside the judgment and decree with the direction to decide the suit afresh. In my view, present one is not a case where re-trial was considered necessary. The suit of the plaintiff was dismissed and the judgment and decree was passed in favour of the defendant. However, the defendant tenant tried to bring on record the subsequent events and the circumstances arising after the lis, which may have fundamental impact on the right to relief by the landlord. Therefore, a wholesale remittal as against calling for a finding on a specific point, without recourse to the provisions of Rules 23, 23-A and 25 of Order 41 C. P. C. which resulted in upsetting of a finding in favour of defendant and divested him of his accrued valuable right is held to be illegal.
(3.) IN my view following two are the only subsequent events which were to be noticed by the appellate court: (a) Whether the plaintiff has an alternate accommodation for carrying on business by his son which the plaintiff has purchased in Jaipur? (b) Whether son of the plaintiff has permanently shifted from Jaipur to Udaipur? The first appellate court may take note of these subsequent events and test the validity of judgment under appeal. For this purpose the first appellate court may permit the parties to bring on record the relevant documents and also to produce evidence to prove the documents. For the reasons mentioned hereinabove, this appeal deserves to be allowed and is accordingly allowed. The impugned order of remand is set aside. The first appeal shall stand restored to the file of Additional District Judge (Fast Track) No. 2, Jaipur City, Jaipur. The first appellate Court may permit the parties to produce relevant requisite documents and to examine witness (s), if any to prove the documents and subsequent events. The first appellate court shall decide the appeal afresh after affording the parties an opportunity of being heard. ;