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Lalita Pd. v. A.D.J. - WRIT - A No. 7293 of 1986  RD-AH 6568 (29 November 2005)
Civil Misc. Writ Petition No. 7293 of 1986
Lalta Prasad (Since deceased and survived by legal representatives) Versus I Additional District Judge, Bulandshahr and others.
Hon'ble S.U.Khan J
Lalta Prasad the original landlord petitioner since deceased and survived by legal representatives instituted eviction suit against tenant respondent no. 3, Dr Pramod Jain before JSCC / I Munsif, Bulandshahr in the form of SCC suit No. 13 of 1979. Building in dispute is a garage of which respondent No. 3 is the tenant. In the plaint, it was stated that building in dispute was constructed in the year 1970 -71 hence U.P Act No. 13 of 1972 was not applicable thereupon (by virtue of section 2(2) of the Act, the Act is not applicable for a period of 10 years from the date of construction of a building, if it was constructed prior to April 1985). The tenant filed written statement and denied the allegation of the landlord in respect of date of construction. Tenant asserted that building was more than 10 years on the date of filing of the suit hence U.P Act No. 13 of 1972 was applicable thereupon. During the pendency of suit tenant filed an application on 2.5.1980 to the effect that even if allegation of plaintiff that building was constructed in April 1970 was taken to be correct 10 years period had expired and tenant was entitled to the benefit of section 39 of U.P Act No. 13 of 1972. According to section 39 of the Act, if a suit for eviction of tenant was pending on the date of commencement of the said Act then tenant was entitled to the protection of the Act on the condition of depositing the entire arrears of rent. JSCC, Bulandshahr through order dated 15.9.1980, held that the question of benefit of section 39 of the Act would be decided after evidence was adduced alongwith final decision of the suit. Against order dated 15.9.1980, tenant filed SCC Revision No. 111 of 1980. IV Additional District Judge, Bulandshahr allowed the revision on 20.11.1980 and directed the trial court to decide the tenant's application in respect of applicability of section 39 of the Act first and not after final hearing of the suit.
After remand the trial court/ JSCC, Bulandshahr decided the entire suit on 19.9.1981. Trial court held that the revisional court in its judgment and order dated 20.11.1980 had already decided that U.P Act No. 13 of 1972 was applicable on the building in dispute hence it was no more open to him to decide the said question again and the said order was binding upon the parties. Thereafter trial court held that tenant had complied with the provisions of section 39 of the Act hence suit was liable to be dismissed as the entire arrears of rent along with interest and cost of the suit had been deposited by the tenant on the first date of hearing and he was entitled to the benefit of section 20(4) of the Act. The trial court therefore through judgment and decreed dated 19.9.1981, dismissed the suit for eviction and permitted the landlord plaintiff to withdraw the amount deposited by the tenant.
Against the said judgment and decree landlord filed SCC Revision No. 77 of 1982. In the revision after judgment was reserved, tenant filed an application seeking amendment in his written statement to the effect that he was entitled to the benefit of section 39 of the Act. Amendment application was allowed on 5.10.1985. Thereafter revision was dismissed on 18.1.1986 by I A.D.J, Bulandshahr hence this writ petition by the landlord.
The revisional court held that the date of construction was 1.4.1970 as from the said date house tax assessment of the building in dispute had been made effective and that in the earlier order of remand of revisional court dated 20.11.1980 also it was held that 1.4.1970 was the date of construction. Revisional court also held that in view of Supreme Court authority reported in Vineet Kumar Vs. M.S. Vadhera AIR 1985 SC 817 U.P Act No. 13 of 1972 became applicable to a building if 10 years period from its construction expired during the pendency of suit.
The said authority of the Supreme Court was later on dissented from, held per incuriam and overruled in several subsequent authorities of the Supreme Court. All these authorities are discussed in the judgment of Supreme Court reported in Kishan VS. Manoj Kumar AIR 1998 SC 999.
The trial court as well as revisional court in the impugned judgments have held that earlier judgment of the revisional court dated 20.11.1980 through which matter was remanded to the trial court operates as res judicata in between the parties. This is the only question, which is to be decided in this writ petition otherwise in view of the aforesaid authority of the Supreme Court of Kishan Vs. Manoj Kumar legal position is quite settled that even if 10 years period expires during the pendency of suit, U.P Act No. 13 of 1972 does not become applicable to the tenanted accommodation if at the time of filing of the suit it was not applicable
By virtue of section 105 CPC, legality of any interim order may be challenged in appeal against final judgment except that of order of remand from which an appeal lies but has not been filed. The correctness of remand order against which appeal could be filed but was not filed can not subsequently be questioned in the subsequent appeal before the higher court against the main judgment after remand. The remand order dated 20.11.1980 was not appealable as it was passed in a revision under section 25 of Provincial Small Causes Courts Act. However landlord could file a writ petition against the said judgment.
If the trial court or the first authority dismisses the proceedings finally holding the same to be not maintainable without deciding anything on merit and the said judgment / order is set-aside by the appellate court holding the proceedings to be maintainable and matter is remanded to the trial court/ first authority to decide the case on merit then the order of the appellate/ revising authority operate as res judicata in between the parties even though the same may not be open to further appeal. If the party aggrieved by such remand order wants to challenge that then it should be challenged immediately. However if it is not done and after remand trial court/ first authority decides the proceedings in favour of the applicant and appeal against the same is also dismissed then in further appeal/ revision before the higher court the earlier decision of the appellate or revisional court holding the proceedings to be maintainable and remanding the matter for trial on merit can not be challenged. This is precisely what has been held by the Supreme Court in C.V Rajendram Vs. N.M.M Kunhi AIR 2003 SC 649.
However if the trial court/ first authority has not dismissed the proceedings on the ground of non-maintainability then any order passed or observation made by appellate / revising authority in appeal/ revision against interim or final order by the trial court/ first court while remanding the matter do not operate as res judicata unless the remand order is appealable under Order 43 Rule 1 (u) C.P.C. For this purpose reference may be made to a Constitution Bench authority of the Supreme Court reported in U.P Electric Supply Company Vs. P.N.Chatterji, AIR 1972 SC 1201 (para 5). By virtue of the aforesaid Supreme Court's Constitution Bench Authority, it is clear that principle of res judicata can be applied to remand order only if the remand order was passed by appellate court/ revising authority/ writ court against order finally terminating the proceedings or the remand order itself finally terminated the proceedings. Neither the order, which was challenged in the earlier revision finally terminated the suit nor through the said revisional order dated 20.11.1980 remanding the matter to the trial court proceedings were finally terminated. The said revision was directed against interlocutory order and the decision of revision dated 20.11.1980 was also interlocutory order. Same can be challenged in this writ petition or the correctness of the said order can be made a ground to challenge the impugned orders. The Supreme Court in K.P.R.Nair Vs. P.Pillai 2004 AIR SCW 106 interpreting Section 105 (2) CPC has held that even if earlier remand order passed by High Court in Second Appeal is not challenged before Supreme Court immediately, it can be challenged when the matter is brought subsequently before Supreme Court after decision of trial court, first appellate court and High Court in Second Appeal after remand. Similar view has been taken in M.P.Tamoli Vs. N.Mishra JT 2005 (11) SC 229 (Para 13). In this authority earlier remand order passed by High Court in 1966 was permitted to be challenged and set-aside in appeal filed before Supreme Court in 1999 directed against orders passed after remand and confirmed by the High Court.
The earlier order of remand passed by the revisional court dated 20.11.1980 is clearly illegal in view of the aforesaid Supreme Court authority reported in Kishan Vs. Manoj Kuamr AIR 1998 SC 999 by three Hon'ble Judges overruling AIR 1985 SC 817 Vineet Kuamr Vs. M.S Vadhera .
However the matter does not end here. If the legal finding of the revisional court given in the earlier remand order to the effect that U.P Act No. 13 of 1972 becomes applicable if ten years period expired during pendency of the suit do not operate as res judicata then the factual finding given in the said order to the effect that 1.4.1970 was the date of construction can also not operate as res judicata. After the remand order trial court did not decide the date of construction. It held that the said question of fact had already been decided in the remand order hence it was binding upon him and operated as res judicata in between the parties. The question regarding date of construction could be decided only at the time of final decision of the suit when entire evidence had been adduced by the parties. The earlier revision was directed against only an interim order passed by the trial court through which trial court had held that this question would be decided after adducing of evidence alongwith final judgment. It was neither proper nor legal at that stage for the revisional court to record the final finding to the effect that 1.4.1970 was the date of construction. The tenant also in view of the legal position prevailing at that time and in view of the remand order of the revisional court did not seriously pursue his allegation that 10 years period had already expired when suit was filed hence U.P Act No. 13 of 1972 was applicable to the building in dispute.
In my opinion it is essential and in the interest of justice to remand the matter to the trial court to decide the question of date of construction of the building after providing opportunity to both the parties to lead the evidence in that regard. If the trial court / JSCC comes to the conclusion that 10 years period from date of construction had expired before filing of the suit then it must be decided as to whether tenant was entitled to the benefit of section 20(4) of the Act or not. However if the trial court comes to the conclusion that 10 years period from date of construction had not expired before filing of the suit then the suit for ejectment must be decreed as no fault with the notice of termination of tenancy has been found and the said notice has been found to be served. This finding shall not be reopened.
Accordingly writ petition is allowed. Both the impugned judgments dated 19.9.1981 and 18.1.1986 are set-aside and the suit is remanded to the trial court to decide afresh in the light of the observation made in the body of this judgment. The trial court while deciding the suit shall not be influenced by any observation made in the earlier remand order dated 20.11.1980.
I have held in Khursheeda Vs. A.D.J 2004(2) ARC 64 that while granting relief against eviction to the tenant in respect of building covered by U.P Act No. 13 of 1972, writ court is empowered to enhance the rent to a reasonable extent. There is no reason as to why the said principle can not be applied while remanding the mater. Accordingly it is directed that with effect from December 2005 onward tenant shall be liable to pay rent to the landlord at the rate of Rs. 1000/- per month irrespective of result of the suit.
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