Issue No. 6 framed by the learned trial Judge is as follows :
"Does defendant prove that there is no relationship as tenant-landlord between himself and the plaff. ?"
It is not necessary to over emphasis the well established proposition that negative issues should not normally be framed. The relationship of the tenant and the landlord is a positive fact and will have to be proved by the positive evidence by the party who alleges it. Even if the defendant denies it, it does not mean that defendant should be cast with the burden of proving that there is no such relationship. Any evidence adduced by such party would be only in rebuttal of the evidence which the plaintiff may lead in discharge of his initial burden. Therefore, apart from the directions of the lower Appellate Court to frame the additional issue in respect of ownership of the suit house. I direct the learned trial Judge to re-frame this issue in the positive manner casting burden on the plaintiff to prove this relationship.
Bombay High Court
Laxman Bapu Berad vs Sudhakar Nanasaheb Jawale on 5 August, 1997
Equivalent citations: 1998 (2) BomCR 259,1998(1)ALLMR667,
1. This writ petition raises a question of law relating to the scope of jurisdiction of the first Appellate Court after the matter is remanded to it by the superior Court.
2. Petitioner -plaintiff- landlord - claimed to be the owner of a portion of Sur. No. 251-A/1 bearing Cantonment Register No. 22 situated at Khalewadi Bhingar, District Ahmednagar. Plaintiff alleges that he is in possession of the premises for more than 70 years and one room constructed in the said premises was given by him to the respondent-defendant on monthly rent of Rs. 25/-. Since 1st February 1976, defendant has neglected to pay the rent and a fresh notice was issued by the plaintiff on 10th August 1984 terminating the tenancy with effect from 30th September 1984. Thereafter, a suit came to be filed in the Court of the Civil Judge, Senior Division, Ahmednagar. The plaintiff in Regular Civil Suit No. 718 of 1984 sought eviction of the defendant on the ground that the defendant has neglected to pay rent for a period of more than six months and also on the count that the premises is required for bona fide personal use of the landlord - plaintiff. In the Written Statement defendant denied the ownership of the plaintiff to the suit premises alleging that the premises is owned by the Government and the Government has given the suit premises under the 20 Point Programme to the defendant. On these pleadings, as many as 8 issues were framed by the learned trial Judge. He allowed the claim of the plaintiff for the possession on both the counts i.e. the default and bona fide requirement. The learned trial Judge though held the plaintiff is entitled for possession of the suit premises did not grant a decree for recovery of the amount due. An appeal challenging this decree passed by the learned 4th Joint Civil Judge, Junior Division, Ahmednagar dated 23rd December 1988 was preferred bearing Regular Civil Appeal No. 277 of 1989. The learned 3rd Additional District Judge, Ahmednagar, was pleased to dismiss the appeal and confirmed the decree vide his order dated 19th January 1994 passed in Regular Civil Appeal No. 277 of 1989. This order came to be challenged in a writ petition filed in this Court and this Court (Coram : M.S. Vaidya, J.) vide order dated 19th July 1994 set aside the judgment and decree passed by the 3rd Addl. District Judge, Ahmednagar and directed him to decide the Regular Civil Appeal afresh as per observations made in the writ petition.
3. When the matter was remitted to the District Judge, the lower Appellate Judge, in turn, remanded the matter to the trial Judge setting aside the decree passed by the trial Judge in Regular Civil Suit No. 718 of 1984 on 23rd December 1988 and directed him to decide the suit afresh on merits by giving full and proper opportunity to both the parties. It is this order of the learned 3rd Additional District Judge, Ahmednagar, dated 31st December 1994 passed in Regular Civil Appeal No. 277 of 1989 which is challenged in this writ petition.
4. Shri C.K. Shinde, learned Counsel for the petitioner, contended that after the remand by the High Court or any other superior Court to a lower Appellate Court, the jurisdiction of the lower Appellate Court would be circumscribed by the directions of the Court remanding the matter. The lower Appellate Court has no jurisdiction to exceed those directions and decide something afresh in excess of the directions contained in the order of remand. In support of his contention, Shri Shinde relied on the judgment of the Madras High Court in Konappa Mudaliar v. Kusularu alias Muniswami Pillai, which says that it is not open to the lower Court, when an Appellate Court remands the case to it, to do anything but to carry out the terms of the remand even if it considers that the order of remand was not in accordance with law. It cannot apply what it might consider the correct position of the law. He also relies on the judgment of the Karnataka High Court in the case of K. Veerabasappa v. The Court of Dist. Judge at Chitradurga and others, which lays down that where a superior Court has passed a restricted order of remand pertaining to a particular issue and none of the parties had urged for open remand it is not open to any of the parties or for any Court to enlarge the scope of the remand order that too by a side-window. If such a course is permitted, it would be destructive to all judicial discipline and will strike at the very root of the efficacy and binding nature of an order of a superior Court on the parties to a dispute. Shri V.S. Badre justified the order impugned in this writ petition and submitted that the remand is an open remand and not a restricted remand.
5. There cannot be any dispute on the proposition that when a remand is a restricted remand for a specific purpose with specific directions, the Court to which the matter is remanded has jurisdiction only to comply those directions and it cannot reopen the whole case. Therefore when the Appellate Court finds that no proper opportunity to cross-examine or to call a particular witness is given or when the judgment does not decide some issue and gives directions to give further opportunity of the cross-examination or of calling such witness or directs the decision to the points left and specifies that remand is for that purpose only it would not be open for the Court to which the matter is remanded to open the whole case as if it is a de-novo trial. But when the remand is not a restricted remand and the matter is remanded to the lower Court for deciding it afresh on all contentions raised by the parties considering the relevant merits of those contentions, the matter is wide open before the lower Court and the lower Court shall have all the powers which it can exercise as if the matter has not gone to the superior Court subject to observations of superior Court. If such a remand is directed by the second Appellate Court or by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India, on remand of such matter before the lower Appellate Court, the lower Appellate Court has all the options open including, in turn, remanding the matter to the trial Court if it thinks that such a course is necessary in the ends of justice. Therefore, a Division Bench of Travancore-Cochin High Court in Sivanancha Perumal Piltai Thampuranthozha Pillai appellant v. Thirunamakarasu Pandaram and others respondents, A.I.R. (39)1951 Travancore Cochin 26 has held that when a decree is set aside and the case remanded to the lower Court all the contentions between the parties are before the Court and it is open for the trial Court to go into all the issues arising on such contentions. Only limitation after the remand is as may be contained in the order of remand. If the order of remand restricts the jurisdiction, the Court cannot override those limitations. But if the order of remand is in fact a direction of re-hearing on merits on all issues and all contentions raised by the parties, the jurisdiction is not at all restricted. When the matter is remanded to the lower Appellate Court, the lower Appellate Court has jurisdiction to remand the matter to the trial Court exercising its powers under Order XLI, Rule 23, Civil Procedure Code. However, the power of the remand will have to be exercised sparingly since it will have to be born in mind always that it may prolong the duration of a litigation and the party who is entitled for the fruits of the decree is kept away from it by such prolongation.
6. This Court in its order dated 19th July 1994 in para 7 had directed the learned Additional District Judge to decide the matter on merits with reference to the points at issue between parties and for this purpose remitted the matter to the District Court by setting aside the judgment and decree passed by the learned Additional District Judge on 19th January 1994. This makes it clear that the remand order was not a restricted remand but this Court felt that the matter requires to be re-heard by the learned District Judge. It is true that the main reason for which this Court found the judgment and decree passed by the 3rd Additional District Judge was that it did not consider all the issues and restricted the decision to one point only. But this Court had not adopted the course of calling the findings on the rest of the issues only. Instead of it, it remanded the matter in full.
7. Shri C.K. Shinde, learned Counsel for the petitioner, further contends that even assuming that the District Court had jurisdiction to remand the matter, there was no occasion or justification for such an order. Shri Shinde points out that the claim of the plaintiff that for some time the defendant paid him the rent has not been seriously disputed by the defendant, therefore, the relationship of the landlord - tenant is established. Question of title to the disputed property thus became irrelevant and it was not necessary to direct the trial Court to frame an issue in respect of the title and for that purpose remand the matter to the trial Judge. It is alleged that the property in dispute is owned by the State Government and both, the plaintiff and defendant, have encroached upon it. Though the definition of the term "Landlords" as given in section 5(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is wide enough to include some other person who may not be the owners of the suit premises, the crux of one becoming the landlord under the Act is his right to recover the rent and the right must flow from some semblance with the legal character. Therefore, even a person, who has been given a right to recover the rent, is treated to be a landlord and can institute a proceedings under Act. It will have to be considered whether the definition of the landlord in the Act, though wider than the term 'owner', can be expanded to include somebody who may not have even any legal right to recover the rent. However, 1 do not wish to express a further opinion on this point since the matter is yet to be decided by the learned trial Judge. But suffice it to say that I do not find anything wrong in the directions by the lower Appellate Court to frame an issue regarding the title to the suit property and it required no interference at least at this stage.
8. Issue No. 6 framed by the learned trial Judge is as follows :
"Does defendant prove that there is no relationship as tenant-landlord between himself and the plaff. ?"
It is not necessary to over emphasis the well established proposition that negative issues should not normally be framed. The relationship of the tenant and the landlord is a positive fact and will have to be proved by the positive evidence by the party who alleges it. Even if the defendant denies it, it does not mean that defendant should be cast with the burden of proving that there is no such relationship. Any evidence adduced by such party would be only in rebuttal of the evidence which the plaintiff may lead in discharge of his initial burden. Therefore, apart from the directions of the lower Appellate Court to frame the additional issue in respect of ownership of the suit house. I direct the learned trial Judge to re-frame this issue in the positive manner casting burden on the plaintiff to prove this relationship. Shri Shinde further invited my attention to a decree passed in Regular Civil Suit No. 366 of 1984 and submitted that the admissions made by the parties and those pleadings will have to be considered if there is a previous judgment between the parties, effect of such a judgment and decree, if any, on the present suit will always be a matter which the trial Judge should consider.
9. I, therefore, find no case for interference in this writ petition. However, noticing the protracted course of this litigation, I direct the learned trial Judge to dispose of the suit within a period of three months from the date of receipt of the writ of this Court after re-framing the issues and as per directions of the lower Appellate Court and after giving full opportunity to the parties. The parties are directed to appear before the learned trial Judge on 28th August 1997.
10. Writ petition stands disposed of as rejected.
No order as to the costs. Interim relief stands vacated.
11. Petition dismissed.
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