1 cra552-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.552 OF 2010 Mohan Dilip Kabre ..Applicant Vs Anusuya Shantaram Patange ..Respondent -- Mr.J.M.Puranik, for applicant. Mr.Mandar Limaye, for respondent - sole -- CORAM : A.S.OKA, J. DATE : 26 th NOVEMBER, 2010 JUDGMENT: On 5 th October, 2010 notice was issued to the respondent for final disposal of the Revision Application at the admission stage. Paragraph nos.2 to 6 of the said order read thus:- “2. The Respondent-landlady filed a suit for possession being Regular Civil Suit No.444 of 1994 against the Revision Applicant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act”). The suit was filed on the grounds of arrears of rent, change of suer, causing nuisance and annoyance. The suit was 2 cra552-10.sxw dismissed. It appears that an appeal was preferred by the Respondent for challenging the decree passed in the suit. During the pendency of the appeal, amendment was permitted to be carried out by the Respondent- landlady to the plaint by which she was permitted to add ground of acquisition of suitable residence. By keeping the appeal pending, the District Court by order dated 15 th March, 2002 directed the Trial Court to record a finding on the additional issue of acquisition of a suitable residence. Appeal was kept pending awaiting finding of the Trial Court. It appears that on 21 st August, 2002, the Trial Court recorded a finding on the issue in the affirmative in favour of the Respondent. The said finding was considered by the District Court and by the judgment and decree dated 28 th November, 2002, the appeal was allowed and decree for possession was passed against the Revision Applicant. 3. It appears that the present Applicant had filed Writ Petition No.2362 of 2003 in this Court for challenging the decree passed by the District Court on 28 th November, 2002. 4. The said Writ Petition was taken up for hearing on 26 th July, 2004. The first prayer in the said Writ Petition was for quashing and setting aside the decree dated 28 th November, 2002 passed by the District Court. The said writ petition was allowed by this Court. Paragraph 6 of the judgment and order of this Court reads thus:- “6. In the circumstances, petition is allowed. Matter is remitted back to the trial Court with liberty to the petitioner to appear before the trial Court, file additional written statement limited to the amended plaint and cross-examine the respondent and his witnesses if any. The petitioner shall also be allowed to adduce evidence of himself and examine any witness if he so desires. It is 3 cra552-10.sxw directed that the parties shall appear before the trial Court on 30 th August, 2004.”. 5. Thus, the Court has not only set aside the judgment and decree dated 28 th November, 2002 but has also set aside the finding recorded by the leaned Trial Judge on 21 st August, 2002. The result of the order of this Court in the writ petition is that the Civil Appeal No. 27 of 1997 stood restored and the matter was remitted to the Trial Court for a limited purpose of making compliance with the order dated 15 th March, 2002 passed by the District Court. The order dated 24 th March, 2010 passed by the Trial Court proceeds on the footing that the decree passed in the Civil Appeal No.27 of 1997 was confirmed. In fact, the said decree has been set aside by this Court by the order dated 25 th July, 2004. What is recorded under the order dated 24 th August, 2010 will have to be read as the finding of the Trial Court in terms of the order dated 15 th March, 2002 which will have to be considered in the pending Civil Appeal No.27 of 1997. In fact, the Appeal will have to be now finally decided after taking into consideration the order dated 24 th August, 2010. 6. In Paragraph 25 of the judgment and order dated 24 th August, 2010, the Trial Judge has observed that the decree in Civil Appeal No.27 of 1997 has become final. This observation made in this order appear to be erroneous. “ 2] After having heard learned counsel for the parties and after perusing the judgment and order dated 26 th July, 2004 passed in Writ Petition No. 2362 of 2003, it is apparent that this Court has set aside the decree passed in Civil Appeal No.27 of 1997 on 28 th November, 2002. The said fact is clear from the directions contained in paragraph 6 of the said judgment and 4 cra552-10.sxw order dated 26 th July, 2004. This Court remitted the matter to the trial Court with a liberty to the parties to file further pleadings and to lead the evidence. Without setting aside the judgment and decree of Appellate Court, order of remand to the trial Court could not have been passed. 3] This Court noticed that on 15 th March, 2002 the Addl. District Judge directed the trial Court to record a finding on additional issue of acquisition of suitable residence. The trial Court recorded findings on the said issue in favour of the respondent and after considering the said finding, judgment and decree dated 28 th November, 2002 was passed by the District Court. 4] The finding recorded by this Court in judgment and order dated 26 th July, 2004 is that the trial Court did not grant opportunity to the petitioner of participating in the hearing while deciding the additional issue which was framed by the District Court under order 15 th March, 2002. Therefore, by judgment and order dated 26 th July, 2004, the order of trial Court deciding the additional issue as well as the judgment and decree of the Appellate Court dated 28 th November, 2002 were set aside by this Court and the petitioner was permitted to file additional written statement to the amended plaint and to adduce evidence on additional issue. 5] As pointed out earlier, the matter went back to the trial Court and the trial Court delivered judgment dated 21 st August, 2010 by which, the trial Court purported to pass a decree for possession against the petitioner by recording the finding that the petitioner has acquired suitable accommodation. In fact, the trial Court was required to record only a 5 cra552-10.sxw finding on issue No.1A and to remit the findings to the District Court in the pending appeal. The District Court was required to consider the said finding and decide the Appeal in accordance with law. Though the trial Court has committed error by passing a decree, the trial Court has recorded a finding on issue No.1A. In the whole process, the hearing of the appeal has been delayed. In the circumstances, the judgment and order dated 24 th August, 2010 passed by the trial Court will have to be modified and it will have to be treated as a finding recorded by the trial Court on the additional issue No.1A in terms of order dated 15 th March, 2002 passed by the District Court. The District Court will have to permit the parties to file objections to the finding and, thereafter, to decide the appeal in accordance with law. 6] Hence, Revision Application is disposed of by passing the following order:- (a) The judgment and decree dated 24 th August, 2010 passed by the trial Court is modified and the same shall be treated as a finding recorded by the learned trial Judge on the issue No.1A in terms of order passed by the District Court on 15 th March, 2002. (b) The trial Judge will immediately transmit the record of the suit to the learned District Judge-1, Kalyan, District Thane. 6 cra552-10.sxw (c) It is clarified that the Civil Appeal No.27 of 1997 is pending before the District Court. (d) Parties are directed to appear before the learned District Judge-1, Kalyan on 20 th December, 2010 at 11:00 am. for fixing schedule of hearing of the appeal. (e) It will be open for the applicant to file objections to the findings recorded by the trial Court on the issue No.1A. (f) The District Court shall decide the appeal as expeditiously as possible and, in any event, on or before 30 th April, 2011. It is obvious that the finding recorded by the trial Court on the issue No.1A shall be considered by the District Court in accordance with law while deciding the appeal. (g) Revision Application is partly allowed in above terms. (h) All contentions of the parties on the merits of the pending appeal are expressly kept open. [A.S.OKA, J]