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Kundan Lal (Since Deceased) And Others v. Anil Kumar - WRIT - A No. 25636 of 2002  RD-AH 11326 (12 July 2006)
Civil Misc. Writ Petition No. 25636 of 2002
Kundan Lal (since deceased) & Others ........Petitioners
Hon'ble Krishna Murari, J.
This writ petition filed by the landlord arises out of proceedings for release of the disputed accommodation under Section 21(1)(a) of the U.P. Urban Buildings (Regulations of Letting, Rent & Eviction) Act 1972 (hereinafter referred to as the ''Act'). The application was contested by the respondent-tenant. On the basis of evidence adduced by the parties, the Prescribed Authority recorded finding with regard to bona fide and genuine need as well as comparative hardship in favour of the petitioners-landlord. However, the application was dismissed on a technical ground that since the tenant-respondent was inducted in the premises in dispute without any order of allotment as such the agreement between them is not enforceable and there is no relationship of landlord and tenant between the parties. Feeling aggrieved, the landlord-petitioners filed an appeal. The appellate Court held that there exists relationship of landlord and tenant between the parties and set aside the finding of the Prescribed Authority in this regard. The appellate authority after setting aside the finding of the Prescribed Authority on this point further set aside the entire judgment of the Prescribed Authority and remanded the case back to be decided afresh.
I have heard Sri Manish Goel, learned counsel for the petitioners and Sri Shiv Sagar Singh, Advocate holding brief of Sri Pankaj Mittal, Advocate appearing for the respondent.
It has been urged by the learned counsel for the petitioners that since the tenant-respondent never challenged the findings recorded by the Prescribed Authority on question of genuine and bona fide need and comparative hardship hence the said findings became final and the appellate court wrongly remanded the case back to the Prescribed Authority to decide the said issues afresh.
It has further been urged that once the appellate authority found that there exists relationship of landlord and tenant between the parties, the application for release filed by the petitioners-landlords ought to have been allowed intoto in the absence of any cross appeal or cross objection against the findings with regard to bona fide need and comparative hardship by the tenant-respondent and the Appellate Court wrongly and illegally remanded the case back.
In reply, learned counsel for the respondent has tried to justify the impugned order. It has been contended that since the release application was dismissed as such there was no occasion for the respondent-tenant to challenge the findings recorded by the Prescribed Authority on the question of bona fide need and comparative hardship by filing an appeal.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
In view of the law laid down by the Hon'ble Apex Court in the case of Nootan Kumar versus Additional District Judge AIR 2002 S.C. 3456, the Appellate Court rightly held that even though the premises in dispute was let out to the tenant without any order or allotment yet the agreement in between the parties was binding between them and the release application filed under Section 21 of the Act by the petitioners-landlords was maintainable.
Now the question which arises for consideration is whether in absence of any cross objection or cross appeal by the tenant-respondent challenging the finding recorded by the Prescribed Authority on the question of bona fide need and comparative hardship the same becomes final against him and whether the Appellate Court after holding that the release application was maintainable was justified in remanding the case back to the Prescribed Authority for reconsideration.
Section 22 of the Act provides for appeal against an order passed under Section 21 of the Act before the District Judge and the provisions of Section 10 of the Act have been mutatis mutandis applied. Section 10(2) of the Act relevant for the purpose reads as under:
"(2) The appellate Court may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and, pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit."
The aforesaid provisions having been mutatis mutandis applied in relation to an appeal preferred under Section 22 of the Act, the appellate authority is not only empowered to confirm the order of the prescribed authority but it can also vary or rescind the same. The power to vary vested in the appellate authority may be exercised even in favour of a respondent to the appeal. I am unable to agree with the submission made by the learned counsel for the petitioner that in absence of any cross objection or cross appeal by the tenant-respondent the findings on the question of bona fide need and comparative hardship recorded by the Prescribed Authority becomes final, and cannot be varied by the appellate Court.
The provisions of order XLI Rule 33 C.P.C. though may not be specifically applicable to the appeal preferred under Section 22 of the Act, but in my view the principles contained in the said provision can be pressed into service with the aid of section 10(2) of the Act. Order XLI Rule 33 C.P.C. provides as follows:
"33. Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees provided--------------
The view taken by me finds support from the two decisions of the learned single judge of our Court in the case of Kumari Sharda Devi Versus Shyam Charan Tripathi & Others 1983(1) ARC 150 and New India Assurance Company Ltd. & Another versus VIIIth Additional District Judge Gorakhpur & Others 1996(2) ARC 672.
Now coming to the next question whether the appellate authority was justified in remanding the case back to the Prescribed Authority, it is well settled that remand should not ordinarily be made because the appellate Court considers the reasoning of the lower Court in some respects to be wrong. When the entire material is available on record it is the duty of the appellate court to decide the appeal one way or the other after considering the various aspects of the case and the evidence and other material available on record. Such remand orders lead to unnecessary delay and cause prejudice to the parties to the case as observed by the Hon'ble Apex Court in the case of Ashwin Kumar K. Paten versus Upendra J. Patel & Others reported in AIR 1999 Supreme Court 1125.
Thus, the appellate Court, having power to confirm, vary or rescind the order passed by the Prescribed Authority, in the facts of the present case, cannot be said to be justified in remanding the case back to the Prescribed Authority for fresh decision without considering the judgment of the Prescribed Authority on merits particularly when the entire material was available before him. In the circumstances, it was open to the District Judge to pass an appropriate order on merits after considering the material on record instead remanding the case back to the Prescribed Authority.
In view of above, the writ petition stands allowed and the impugned order of remand dated 5.3.2002 passed by the Appellate Court is set aside. The Appellate Court is directed to rehear the appeal on merits and decide the same in accordance with law preferably within a period of one year from the date of production of this order before him by any of the parties.
No order as to costs.
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