1 903 wp.6800.11 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION WRIT PETITION NO. 6800 OF 2011 1. Smt. Dina Dara Sukhia (deceased) Represented through her legal representative. Dr. Mrs.Roshani Farokh Cinoy. 2. Farokh Phiroze Chinoy. ... Petitioners Versus Jimmy Dara Sukhia and others. ... Respondents ----- Mr. Sukand R. Kulkarni for the Petitioners. Mr. R.S.Apte, Senior Counsel, i/b Mr.Vaibhav Patankar for the Respondent No.1. ----- CORAM : A.S.OKA, J. DATE : 16 th December, 2011. ORAL JUDGMENT: 1 The submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the petition will be taken up for final disposal. The Petitioners who are the original Plaintiffs have preferred this writ petition for challenging the order of remand passed by the District Court. The 2 903 wp.6800.11 Petitioners filed a suit for eviction before the Court of Small Causes, Pune against the Respondents. The trial Court passed a decree for possession. However, the trial Court rejected the prayer for injunction. The Appellate Court in the appeal preferred by the Respondents has passed an order of remand. The Appellate Court found that certain issues were not framed by the trial Court. The Appellate Court in the body of the judgment framed the issues and by setting aside the decree, remanded the matter to the trial Court. The order of remand of the Appellate Court has been challenged by filing this petition under Article 227 of the Constitution of India. 2 The learned counsel appearing for the Petitioners submitted that there was no necessity of framing any issues as all the issues have been already dealt with by the trial Court. The Appellate Court has erroneously framed the issues and passed an order of remand. On instructions, he stated that the Petitioners have no objection if the impugned order is modified by directing that the appeal before the District Court should remain pending and findings should be 3 903 wp.6800.11 called for from the trial Court on the issues which are framed by the Appellate Court. His submission is that as the suit was of the year 1997, such order of remand could not have been passed in the year 2009. 3 The learned counsel appearing for the Respondents submitted that considering the nature of the issues framed by the Appellate Court, it will require recording of detailed evidence. Therefore, instead of keeping the appeal pending, the Appellate Court has rightly passed an order of remand which calls for no interference in the writ jurisdiction. 4 I have carefully considered the submissions. Perusal of the impugned judgment shows that the Appellate Court was of the view that the following issues were required to be framed which were not framed by the trial Court. “i. Whether plaintiffs have proved that defendant No.1 is in possession of the suit premises as licensee at gratuitous and his license was revoked by deceased plaintiff on 15.11.1997? 4 903 wp.6800.11 ii. Whether the suit is bad for want of correct description of the suit property ? iii. What is the effect of filing of return under the U.L.C. Act, under which the property was shown to be the property belonging to original plaintiff, her two sons, and daughter Roshni ? iv. Whether plaintiffs have proved that deceased plaintiff being absolute owner of the suit property had executed last will dated 20.6.1987 and codicil date 17.3.2002 and bequeathed her properties including the suit property to her daughter, namely Dr.Roshni ?” Perusal of the finding recorded by the Appellate Court shows that there was no evidence on record to hold that the parties to the suit had knowledge that the gratuitous licence was the basis of the suit. In short, the conclusion drawn by the Appellate Court is that there was no evidence on record to decide the aforesaid issues . 5 It must be noted that the suit is of the year 1997 which was decided on 17 th September, 2009. The appeal of the year 2009 was decided in June 2011. Considering the fact that the suit was very old, in fact, this was a fit case where the Appellate Court ought to have 5 903 wp.6800.11 exercised the power under Rule 25 of Order XLI of the Code of Civil Procedure, 1908. By keeping the appeal pending, the aforesaid issues ought to have been referred to the trial Court for recording the evidence and for recording the findings thereon. There cannot be any prejudice to any parties by adopting the said course as a party to the appeal which is aggrieved by the findings recorded by the trial Court can always raise objections to the said findings in the pending appeal which can be dealt with by the Appellate Court at the time of final hearing of the appeal. This course will reduce further delay in disposal of the suit of the year 1997. Blanket order of remand would have lead to one of the parties filing a fresh appeal. By adopting the aforesaid course, all issues can be decided in the appeal of the year 2009. Hence, to that extent, the impugned judgment and order will have to be modified. 6 Hence, I pass the following order: i. The impugned judgment and decree to the extent to which the judgment and decree of the 6 903 wp.6800.11 trial Court is set aside is hereby quashed and set aside. The Civil Appeal No.620 of 2009 is restored to the file of the District Court ; ii. The aforesaid issues which are framed by the Appellate Court shall be referred to the trial Court. The trial Court shall permit the parties to adduce the evidence on the said additional issues framed. After recording the evidence, the trial Court shall record the findings on the said issues and shall return the evidence recored together with the findings with the reasons recorded to the District Court ; iii. This exercise shall be completed by the trial Court within a period of six months from the date on which the record of the suit is received by the said Court ; iv. After the findings are received by the District Court, copies thereof shall be made available to the parties to the appeal and it will be open for the parties to the appeal to file objections to the findings recorded by the trial Court ; 7 903 wp.6800.11 v. After receiving the findings recorded by the trial Court, the Appellate Court shall decide the appeal within a period of six months from the date on which the findings are received ; vi. The writ petition is partly allowed on above terms with no order a to costs ; and vii. All questions on merits are kept open. [ A.S.OKA, J ]