1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R S.B. Civil Writ Petition No.1913 of 2004. Ranglal son of Shri Jethanand (since deceased) through his LRs. Smt. Kamla Devi and Others VERSUS Smt. Siddika Begam wife of late Shri Marhum Saiyed Masuk Ali and Others Date of Order :::: 20/08/2009 Hon'ble Mr. Justice Dalip Singh Mr. Shailesh Prakash Sharma, Counsel for the Petitioner. Mr. Rinesh Gupta, Counsel for the Respondents Per Court : Heard learned counsel for the parties. This writ petition has been preferred after the Revision Petition bearing No.1305/2002 was disposed of by this Court in the light of the judgment of the Hon'ble Supreme Court i.e. Shiva Shakti' Coop. Housing Society, Nagpur and it was held that the revision is not maintainable. Thereafter, since the liberty had been granted and the impugned order was returned to the petitioner, this writ petition was filed. 2 The petitioner preferred this writ petition against the impugned order passed by the learned trial Court dated 12.08.2002 by which application submitted under Order 6 Rule 17, C.P.C. dated 10.05.2002 has been rejected by the learned trial Court. Facts, in brief, which are relevant for the purpose of this writ petition are that the landlord plaintiff- respondent filed a suit for eviction interalia on the ground of personal-bona-fide-necessity for his son of the two shops, which were in the tenancy of the petitioner-tenant. The suit was decreed and the petitioner-tenant preferred a regular first appeal before the learned Lower Appellate Court under Section 96, C.P.C. During the pendency of the appeal before the learned Lower Appellate Court, the petitioner raised the ground with regard to partial eviction not having been considered and an issue to that effect not having been framed. That application by way of amendment was allowed by the learned Lower Appellate Court vide order Annexure-1 dated 10.05.2002 and having framed an 3 additional issues on the ground of partial necessity and allowing amendment to Para 4 of the written-statement of the learned appellate Court remanded the case to the learned trial Court with the following directions :- ''ऐसी अवःथा मɅ, ǒविधवत Ǿप से संशोिधत वाद पऽ एवं ूितवाद ् पऽ के अनुसार साआय लेखबƨ कȧ जाकर उƠ तनकȧहात का िनःतारण Ǒकया जा सकेगा। अत: उƠ तनकȧहात के संबंध मɅ ǒविधवत साआय लेने व िनःतारण करने के िलए इस ूकरण को ् ǒवचारण Ûयायालय के सम¢ मय संशोिधत वाद पऽ एवं ूितवाद पऽ पुन: ूेǒषत Ǒकया जाकर ǒवचारण Ûयायालय को िनदȶश Ǒदया जाता है Ǒक वह 22.7.2002 तक उƠ तनकȧहात के संबंध मɅ उभय प¢ को िनयमानुसार सुनवायी का अवसर ूदान कर ूकरण का िनःतारण करेगा एवं पऽावली इस Ûयायालय को ूेǒषत करेगा।'' On the same date i.e. 10.05.2002, the petitioner- defendant moved another application under Order 6 Rule 17, C.P.C. before the learned Lower Appellate Court stating therein that the suit had been filed for eviction on the ground of personal bona-fide necessity in respect of two disputed shops and behind these two shops the plaintiff has in fact constructed 16-shops and, therefore, he being in possession of those 16-shops the personal bona-fide necessity for the son of the plaintiff does not subsist and alternatively as was submitted that the defendant-tenant may be inducted in any of the newly 4 constructed shops and accordingly sought to amend the written-statement by incorporating Para 4-A and B, as mentioned in the application Annexure-2 on record relating to the aforesaid 16-shops. The plaintiff-respondents filed a reply to the application, which is Annexure-3 on record. However, it appears that there is no specific denial to the aforesaid 16- shops having been constructed and all that has been said in the additional pleas is that the construction is not complete and shutters etc., have not been put so far. On the aforesaid application filed on 10.05.2002 the learned Lower Appellate Court, which had earlier allowed the amendment application vide order of even date 10.05.2002 Annexure-1, passed the subsequent order on the same day i.e. 10.05.2002, which is available as Annexure-4 on record. The said order reads as follows : ''ूकरण मɅ आज मूल अपील मɅ आंिशक िनंकासन व अÛय दो तनकȧहात के संबंध मɅ िनयमानुसार सुनवायी एवं िनःतारण हेतु ूकरण पुन: ǒवचारण Ûयायालय मɅ ूेǒषत Ǒकए जाने का आदेश Ǒदया गया है। त×पƱात ्11.30 ए.एम. पर ूाथȸ-अपीलाथȸ- ूितवादȣ प¢ कȧ ओर से उƠ ूाथ[ना पऽ Ûयायालय हाजा मɅ ूःतुत हआ है तथा ूाथ[ना पऽ मɅ वǔण[त सÞसीÈवेÛट इवेÛÒस ु के संबंध मɅ संशोधन जवाब दावे मɅ करने कȧ ूाथ[ना कȧ गयी है 5 अत: इस ूाथ[ना पऽ को भी अधीनःथ Ûयायालय के सम¢ ǒवचारण हेतु ूेǒषत Ǒकया जाता है। ǒवƮान अधीनःथ Ûयायालय उƠ ूाथ[ना पऽ पर िनयमानुसार उƠ अविध मɅ ǒवचारण करने तथा संबंिधत काय[वाहȣ करने को ःवतंऽ होगा। पऽावली इंतजार ǒवƮान अधीनःथ Ûयायालय कȧ पऽावली हेतु Ǒदनांक 30.7.2002 को ूःतुत हो। प¢कारान को ǒवचारण Ûयायालय के ् सम¢ Ǒदनांक 15.5.2002 को उपǔःथत होने हेतु पाबÛद Ǒकया जाता है।'' As would be apparent from the above, the learned Lower Appellate Court instead of deciding the application itself directed the learned trial Court to decide the said application in accordance with law. The learned trial Court having heard the learned counsel for the parties passed the impugned order, which is available as Annexure-5 on record on 12.08.2002. The learned trial Court rejected the said application and while doing so, observed as follows : ''माननीय अपीलीय Ûयायालय Ʈारा केवल 2 ǒववाद ǒबÛदओं पर ु हȣ साआय िलये जाने के पƱात िनःतारण करने का आदेश Ǒदया ् गया है। यǑद ूाथȸ का ूाथ[ना पऽ आदेश 6 िनयम 17 सी पी सी ःवीकार Ǒकया जाता है तो ूितवादȣ एवं वादȣ के संधोिधत वाद पऽ और ूितवादȣ पऽ के आधार पर नये ǒववाद ǒबÛद ǒवरिचत ु करने पड़Ʌगे नये िसरे से साआय ली जायेगी। अधीनःथ Ûयायालय के Ʈारा एक बार ूकरण का पूण[ ǒवचारण कर िनण[य पाǐरत कर Ǒदया गया था माननीय अपीलीय Ûयायालय Ʈारा केवल दो ǒववाद ǒबÛदओं पर िनण[य करने का आदेश Ǒदया गया है इन ǒबÛदओं ु ु 6 के अितǐरƠ अÛय ǒववाद ǒबÛदओं पर ǒवचारण करना इस ु Ûयायालय के ¢ेऽािधकार मɅ नहȣं है। वादȣ अूाथȸ कȧ ओर से ूःतुत Ûयाियक ǺƴाÛत ए.आई.आर.1987 राज.77 का अवलोकन Ǒकया गया इसके अनुसार जहां ǐरमाÛड ओपन ǐरमाÛड नहȣं है बǔãक सीमाओं के साथ Ǒकया गया है वहां अधीनःथ Ûयायालय उÛहȣं सीमाओं मɅ रहते हए काय[ करना चाǑहए। ु '' It is against the aforesaid order of rejection of the application based upon the above reasonings that the writ petition in the circumstances, mentioned here-in- above has been preferred before this Court. I have considered the rival submissions of the learned counsel for the parties and also gone through the impugned order. While it is correct that in a case of remand under Order 41 Rule 25, C.P.C. as submitted by the learned counsel for the respondent the observation as made by this Court in A.I.R. 1987 in Rajasthan Page 77 would squarely apply so far as the limitation on the exercise of jurisdiction by the learned trial Court of the remand under Order 41 Rule 25, C.P.C. is concerned. However, there is a certain distinction in between the facts of the aforesaid case and the present case, which excludes the applicability of the aforesaid decision to the facts of this case. 7 In the present case, after passing of the order Annexure-1 remanding the case and after having framed two fresh issues by the learned Lower Appellate Court and directing the learned trial Court to record the evidence thereon and decide the same in accordance with law and an application was filed before the learned Appellate Court itself by the defendant-petitioner for amendment of the pleadings to incorporate the subsequent event pertaining to the construction of 16-shops, which were as per the defendant available to the plaintiff to satisfy the need of the son of the plaintiff. The learned Appellate Court instead of deciding the application itself has directed the learned trial Court to decide the same in accordance with law vide Annexure-5 quoted above. The said order Annexure-5 was also passed on 10.05.2002 and a direction had been given by the learned Appellate Court to the learned trial Court to decide the application in accordance with law. 8 While doing so it is significant to note here that the learned Appellate Court observed in its order dated 10.05.2002 as follows : " ǒवƮान अधीनःथ Ûयायालय उƠ ूाथ[ना पऽ पर िनयमानुसार उƠ अविध मɅ ǒवचारण करने तथा संबंिधत काय[वाहȣ करने को ःवतंऽ होगा। " Thus the words in the order dated 10.05.2002 passed by the learned Appellate Court " संबंिधत काय[वाहȣ करने को ःवतंऽ होगा। " are very significant and, therefore, the learned trial Court was wrong in refusing to exercise its jurisdiction and observing that while in the case of remand under Order 41 Rule 25, C.P.C. the Court is bound by the impugned order of remand and can exercise its jurisdiction only in respect of additional issues framed and decide in accordance with the direction issued while remanding the case by the learned Appellate Court, which as per the learned trial Court was limited to the issue of partial eviction only and not for the consideration of the facts mentioned in the amendment application. In the instant case, no doubt the order Annexure-1, which is the order of remand framing the additional issues is there, but at the same time Annexure-4 9 is also there where the learned Appellate Court after having remanded the matter has further directed the learned trial Court to decide the application for amendment and in the event of the same being allowed the learned Appellate Court further directed that the learned trial Court would be free to do all that is essential and necessary in that behalf. The necessary corollary, which follows from the above is that in the event of application for amendment being allowed, the learned trial Court was free to proceed in accordance with law with regard to all that was ancillary. In the facts and circumstances of the case, therefore, I am of the view that the learned trial Court failed to exercise its jurisdiction vested in it, by the learned Appellate Court as per the order Annexure-4 dated 10.05.2002 passed on the application under Order 6 Rule 17, C.P.C. By observing that it is bound by the order of remand under Order 41 Rule 25, C.P.C. and refusing to do anything more in the matter other than what has been directed, the learned trial Court over looked the direction contained in the order dated 10.05.2002, Annexure-4 passed by the learned Appellate Court on the application for amendment. It thus failed to exercise jurisdiction 10 vested in it. At the same time, it is necessary to mention here that the facts, which have been alleged in the amendment application have a direct bearing on the issue of personal bona-fide necessity and would be necessary for the determination of the real issues with regard to the personal bona-fide necessity, as contemplated under Section 13 (1) (h) of the Rajasthan Premises (Control of Rent & Eviction) Act read with Section 14 (2) of the same of the said Act. It is a settled law that while deciding the matter with regard to eviction on the ground of personal bona-fide necessity the cause of action with regard to the necessity and the necessity itself must be in existence on the date when the cause of action arose, as also on the date of filing of the suit, during the pendency of the suit as well as on the date of the passing of the decree. In case, it is found that the plaintiff has alternate accommodation available in the form of 16 shops, which have been constructed, this fact is material for the adjudication of the suit. 11 At the same time, while considering the personal bona-fide necessity the Court is required to consider not only the personal bona-fide necessity, but also the question of comparative hardship under Section 14 (2) of the Act and the question of partial eviction. On this aspect also, the question of alternate accommodation being available to the plaintiff if found correct on the basis of the averments made in the amendment application and evidence lead in this behalf would have bearing on the issue in the suit and therefore, the application filed under Order 6 Rule 17, C.P.C. Annexure-2 filed on 10.05.2002 by the defendant was required to be allowed particularly in view of the reply. It is, however, made clear that any observations made here-in-above in respect of the application and allowing the amendment should not be considered, as any observations made on the merits of the case, which is required to be determined and decided after recording the evidence of the parties and considering the same in respect of the matter in issue by the learned trial Court and the learned trial Court would not be influenced by any of the observations made here-in-above. 12 The Annexure–5 dated 12.08.2002 stands quashed as it suffers from an error of jurisdiction as pointed out above. The application for amending the written-statement is allowed. Both the parties are directed to appear before the learned trial Court on 04.09.2009. With the aforesaid observations, the writ petition as well as the stay application stand allowed and disposed of. (Dalip Singh) J. ashok/