- (1.) These two Civil Misc. appeals have been heard together and since common questions are involved, I propose to decide them by a common judgment.
(2.) The facts giving rise to appeal No. 39 of 1978 may briefly be stated. The plaintiff-respondent instituted a suit on February 14, 1974 for ejectment against the defendant appellant in respect of the shop described in para No. 1 of the plaint. The ejectment was sought on the ground of reasonable and bonafide necessity. The defendant contested the suit on various grounds vide his written statement dated April 15, 1974. On the pleadings of the parties, the trial Court framed three issues inclusive of relief on April 23, 1974 which when translated into English, run as follows : 1. Whether the shop in question is required by the plaintiff for him self and his family member reasonably and bonafide ? 2. Whether the tenancy of the defendant stood validly terminated by notice dated 13-12-73 and 1-1-74 ? 3. Relief During the pendency of the suit, the Rajasthan Premises (Control of Rent and Eviction) Amendment Ordinance, 1975 (Ordinance No. XXVI of 1975) came into force. Sub-section (2) was newly added by this Ordinance to the existing Section 14 which reads as under :- "No decree for eviction on the ground set froth in clause (h) of Sub-section (1) of Section 13 shall be passed if the Court is statisfied that, having regard to all the circumstances of the case including shall, subject to all just exception, be evidence during the trial after remand".
(3.) It is clear from the orders under appeal that the learned Civil Judge did not examine the case on merits while allowing the applications for grant of amendment of the plaint filed by the plaintiff. He directed that amended plaints should be filed in the trial Court on or before April 18, 1978 and thereafter issues Nos. 1 and 4 be decided afresh in accordance with law after recording necessary evidence of both the parties. He, therefore, ordered that the appeal is decided accordingly and the judgment and decree of the trial Court dated March 13, 1976 are set aside, it may be recalled here that the trial Court found that the plaintiff was able to establish his reasonable and bonafide necessity, that the notice was served on January 1, 1974 and the tenancy was validly terminated, that the greater hardship would be caused to tenant by passing the decree that by refusing to pass it in favour of the plaintiff and that the defendant has not been able to satisfy as to how the plaintiff is not entitled to maintain the suit for ejectment. The finding on issues Nos. 1, 2, 4 and 5 were neither specifically reversed nor set aside in the appeal. The learned Civil Judge, as appears from the judgment, did not apply his mind at all to the finding arrived at by the trial Court and merely rest contented by making a direction that issues Nos. 1 and 4 be decided afresh by the trial Court in accordance with law after recording necessary evidence of the parties. He set aside the judgment and decree of the trial Court without affirming or reversing or setting aside the finding on issues Nos. 2 and 5 which were also decided by the trial Court. Before making an order of remand; it was necessary for the learned Civil Judge to reverse or set aside the findings arrived at by the trial Court which he has filed to do. It is well settled that no remand can be ordered under Order 41, Rule 23 CPC unless the decision of the lower Court is reversed or set aside in appeal and that can only be done after examining the merits of the case. In support of his argument, learned counsel for the appellant placed reliance on Akkanagamma and others v. R. Nageshwariah and another, 1968 AIR(Mys) 266, and an unreported decision of this Court in S.B. civil Revision No. 347 of 1964 (Aziz Khan v. Smt. Sakeena decided on July 15, 1965). In Aziz Khan's case , the appellate Court allowed the application for amendment of the plaint and remanded the suit for decision in accordance with law without upsetting the findings of fact arrived at by the Court. The learned Judge after examining the findings arrived at by the trial Court, observed as follows :- "The appellate Court accordingly had no jurisdiction to allow the amendment application and remand the suit". Order 41, Rule 23 C.P.C. (as amended in Mysore in 1950), came up for consideration in Akkanagamma and others v. Nageswariah and another . The following observations were made in para 10 of the report :- "An order of remand by a First Appellate Court should be an order pursuant to a conclusion arrived at by first appellate Court after a final hearing of the appeal. Before the first appellate Court can make an order of remand, the relevant rule requires that it should set aside the order of the trial Court and no appellate Court set aside the order of the trial Court without examining the case on merits. Even when the rule empowers the appellate Court to remind any case where it considers it necessary in the interest of Justice to make an order of remand the opinion that the interest of justice to require or call for such an order is an opinion which can be entertained only after an examination of the merits of the case. The tentative opinion on the matter without examining full records of the case cannot in sense be regarded as a sound conclusion that interest of justice do require that such an order should be passed." As stated above, there is nothing in the judgement of the learned Civil Judge to show that he upset those findings of the trial Court which were against the plaintiff who preferred the appeal. In these circumstances, the leaned Civil Judge was not right in remanding the suit to the trial Court for fresh decision on issues Nos. 1 and 4.;