HIYA ASSOCIATES & ORS. versus NAKSHATRA PROPERTIES PVT. LTD. on 26 September 2018

135

HIYA ASSOCIATES & ORS.

A

v.

NAKSHATRA PROPERTIES PVT. LTD.

(Civil Appeal Nos. 9996-9997 of 2018)

B

SEPTEMBER 26, 2018

[ABHAY MANOHAR SAPRE ANDMOHAN M. SHANTANAGOUDAR, JJ.]

Remand:

CD

Remand of case to Revisionary Court – On facts, failure ofthe appellant-tenant to vacate possession of the suit premises torespondent-owner in terms of the compromise, led to filing ofexecution application by respondent – Objections raised byappellant – Executing court overruling all the objections, directedissuance of warrant of possession in respect of suit premises againstDthe appellants – Filing of Revision by appellant – Revisionary Courtremanded the matter to the Executing Court – In writ petition, theHigh Court set aside the order of the revisionary court and restoredthe order of the Executing Court – On appeal, held: RevisionaryCourt erred in remanding the case to the Executing Court for itsEfresh consideration on merits – Since the Executing Court hadalready decided all objections raised by the appellants on meritsand had found no merit therein, the Revisionary Court was underlegal obligation to decide the legality and correctness of the findingsrecorded by the Executing Court – Revisionary Court also erred inallowing the appellants to file additional documents, whichFwere neither relevant and nor material for deciding thecorrectness of the order passed by the Executing Court –Furthermore, the High Court having noticed the errors in the orderof the Revisionary Court should have remanded the case to theRevisionary Court for deciding the revision afresh on merits –GThus, case remanded to the Revisionary Court for deciding therevision afresh.

Remand of a case to Subordinate Court – When necessary –Held: Remand is necessary when the Superior Court while exercising H

Aits appellate or revisionary jurisdiction finds that the SubordinateCourt has failed to decide some material issues arising in the caseor there is some procedural lacuna noticed in the trial, which hasadversely affected the rights of the parties or when some additionalevidence is considered necessary to decide the rights which wasnot before the trial court.

B

Partly allowing the appeals, the Court

HELD: 1.1 The impugned order as also the order passedby the Revisionary Court are set aside. The case is remanded tothe Revisionary Court for deciding the appellants revision afreshCon merits in accordance with law. [Para 14, 28] [140-A-B; 142-C]

1.2 The Revisionary Court committed two errors. In thefirst place, it should not have remanded the case to the ExecutingCourt for its fresh consideration on merits but it should havedecided the revision on merits in accordance with law. It is forDthe reason that the Executing Court had already decided allobjections raised by the defendants (appellants) on merits andhad found no merit therein. The Revisionary Court was, therefore,under legal obligation to decide the legality and correctness ofthe findings recorded by the Executing Court on its merits in itsrevisionary jurisdiction instead of remanding the case to theEExecuting Court. Indeed, there is no justifiable reason, whichcould justify remand having regard to the nature of the objectionsraised by the defendants (appellants) before the Executing Court.This was not the case, which needed remand to the ExecutingCourt for its fresh decision on merits. [Para 16, 17] [140-C-E]

F

1.3 The remand of a case to the Subordinate Court isconsidered necessary when the Superior Court while exercisingits appellate or revisionary jurisdiction finds that the SubordinateCourt has failed to decide some material issues arising in thecase or there is some procedural lacuna noticed in the trial, whichGhas adversely affected the rights of the parties while prosecutingthe suit/proceedings or when some additional evidence isconsidered necessary to decide the rights of the parties whichwas not before the Trial Court etc. Such was not the case here.[Para 18][140-F-G]

H

H

1.4 The error committed by the Revisionary Court wasthat it allowed the defendants (revision petitioners) to fileadditional documents to prove their case. The documents soughtto be filed by the defendants were neither relevant and normaterial for deciding the legality and correctness of the orderpassed by the Executing Court. The legality and correctness ofthe order impugned in the revision could be decided one way orthe other without the aid of any additional document but on thebasis of material already on record. Indeed, if the Executing Courtcould decide the issue finally at its level, the Revisionary Courttoo could do the same at its level. [Para 20] [141-A-B]

1.5 As regards, the impugned order passed by the HighCourt, the Court having noticed the aforementioned errors inthe order of the Revisionary Court should have remanded thecase to the Revisionary Court for deciding the revision afresh onmerits. Instead, the High Court itself went into the question onmerits and upheld the order of the Executing Court. The HighCourt should not have done and left it for the Revisionary Courtto do. It does not mean that the High Court had no jurisdiction todecide the issue but having regard to the nature of objections,remedy available to the parties to have finding on the questionfrom the Revisionary Court and to put the record straight, it wasnot called for in this case. [Para 23, 24] [141-E-G]

Roshanlal v. Madan Lal AIR 1975 SC 2130

– referred to.

Case Law Reference

AIR 1975 SC 2130 referred toPara 21

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9996-9997 of 2018.

From the Judgment and Order dated 21.07.2017 and 26.07.2017of the High Court of Judicature at Bombay in Writ Petition No. 6733 of2017.

D.N. Goburdhan, Ms. Pallavi Chopra, Advs. for the Appellants.

Gourab Banerji, Sr. Adv., Sahil Tagotra, S. P. Mukherjee, RakaChatterjee, Advs. for the Respondent.

AB

C

D

E

F

G

H

AThe Judgment of the Court was delivered byABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. These appeals arise from the final judgment and order dated21.07.2017 & 26.07.2017 passed by the High Court of Judicature atBombay in Writ Petition No.6733 of 2017 whereby the High CourtBallowed the writ petition filed by the respondent herein, set aside theorder dated 26.09.2016 passed by the Small Causes Court, AppellateBench, Mumbai in R.A. No.333/2015 and restored the order dated28.10.2015 of the Executing Court in Execution Application No.31/2013in R.A.E. Suit No.872/2007.

C3. The issue involved in these appeals is short. Few facts, however,need mention to appreciate the issue, which is the subject matter ofthese appeals.

4. The appellants are the defendants and the respondent is theplaintiff in the civil suit out of which these appeals arise.

5. The issue arises out of eviction suit, which resulted in passingof a compromise decree followed by its execution. So far as the presentappeals are concerned, they arise out of an order passed in the executionproceedings.

D

6. The Respondent(plaintiff) filed a suit (No.872/2007) in the Courtof Small Causes at Mumbai against the appellants(defendants) for theirEeviction from the suit premises. The eviction was claimed inter alia onthe ground of unauthorized user of the suit premises by the appellants(defendants) which, according to the respondent (plaintiff), amounted tothe change of user under the provision of Section 16(1)(n) of theMaharashtra Rent Control Act, 1999 (hereinafter referred to as “theFAct”). It is not necessary to set out the facts in the pleadings of theparties.

7. During the pendency of the suit, the parties, i.e., the appellantsand respondent, compromised the matter and accordingly filed theirconsent terms on which the compromise was arrived at between them.

8. The Court accordingly, by order dated 05.09.2007, pronouncedthe judgment and disposed of the suit in accordance with the consentterms. In terms of the compromise, the defendants (appellants) were tohandover the vacant possession of the suit premises to the plaintiff(respondent) on or before 31.01.2009 and the defendants (appellants)

G

H

were also liable to pay Rs.5000/- per day by way of mesne profits ifthey fail to handover possession of the suit premises after 31.01.2009.

9. Since the defendants (appellants) failed to handover the vacantpossession of the suit premises to the plaintiff (respondent) in terms ofthe compromise, the plaintiff (respondent) filed an execution application(No.31/2013) for execution of the consent decree dated 05.09.2007 andprayed therein for issuance of possession warrant in respect of the suitpremises against the defendants (appellants).

10. The defendants (appellants) filed their reply and raised severalobjections on facts and law including maintainability of the executionapplication. By order dated 28.10.2015, the Executing Court overruledall the objections on merits and, in consequence, held that the executionapplication filed by the plaintiff (respondent) is maintainable in law andthe consent decree is, therefore, executable against the defendants(appellants). The Executing Court, therefore, directed issuance of warrantof possession against the defendants (appellants) in relation to the suitpremises.

11. The defendants (appellants) felt aggrieved and filed revisionbefore the Small Causes Court at Mumbai. The Revisionary Court, byorder dated 26.09.2016, allowed the revision, set aside the order dated28.10.2015 passed by the Executing Court and remanded the case tothe Executing Court for deciding the objection raised by thedefendants(appellants) against the execution application afresh on merits.One of the reasons to remand the case to the Executing Court was thatthe Revisionary Court allowed the defendants (appellants) to file additionaldocuments (Ex.22), which they had filed for the first time in the revisionpetition.

12. The plaintiff (respondent) felt aggrieved by the order of theRevisionary Court and filed writ petition under Article 227 of theConstitution of India in the High Court of Bombay. By impugned order,the High Court allowed the writ petition, set aside the order of theRevisionary Court and restored the order of the Executing Court, whichgives rise to filing of the present appeals by way of special leave by thedefendants (appellants) in this Court.

13. Heard Mr. D.N. Goburdhan, learned counsel for the appellantsand Mr. Gourab Banerji, learned senior counsel for the respondent.

A

B

CD

E

F

G

H

A14. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeals in part andwhile setting aside the impugned order as also the order passed by theRevisionary Court remand the case to the Revisionary Court for decidingthe defendants’ (appellants) revision afresh on merits in accordance withlaw.B

A

15. The reasons to remand the case to the Revisionary Court aremore than one as mentioned hereinbelow.

16. In our opinion, the Revisionary Court committed two errors.In the first place, it should not have remanded the case to the ExecutingCCourt for its fresh consideration on merits but it should have decided therevision on merits in accordance with law.

17. It is for the reason that the Executing Court had already decidedall objections raised by the defendants (appellants) on merits and hadfound no merit therein. The Revisionary Court was, therefore, underDlegal obligation to decide the legality and correctness of the findingsrecorded by the Executing Court on its merits in its revisionary jurisdictioninstead of remanding the case to the Executing Court. Indeed, we donot find any justifiable reason, which could justify remand having regardto the nature of the objections raised by the defendants (appellants)Ebefore the Executing Court. In other words, this was not the case, whichneeded remand to the Executing Court for its fresh decision on merits.

18. In our opinion, the remand of a case to the Subordinate Courtis considered necessary when the Superior Court while exercising itsappellate or revisionary jurisdiction finds that the Subordinate Court hasFfailed to decide some material issues arising in the case or there is someprocedural lacuna noticed in the trial, which has adversely affected therights of the parties while prosecuting the suit/proceedings or when someadditional evidence is considered necessary to decide the rights of theparties which was not before the Trial Court etc. (See Order 41 RulesG23, 23-A, 24 and 25 of the Code of Civil Procedure, 1908). Such wasnot the case here.

H

19. Second error committed by the Revisionary Court was that itallowed the defendants (revision petitioners) to file additional documents(Ex.22) to prove their case.

20. In our opinion, the documents sought to be filed by thedefendants (revision petitioners) were neither relevant and nor materialfor deciding the legality and correctness of the order passed by theExecuting Court. The legality and correctness of the order impugned inthe revision could be decided one way or the other without the aid of anyadditional document but on the basis of material already on record keepingin view the law laid down by this Court in several decided cases on theissue in question. Indeed, if the Executing Court could decide the issuefinally at its level, the Revisionary Court too could do the same at itslevel.

21. In our view, the issue in question was not required to be decidedunder Order 21 Rule 97 of the Code of Civil Procedure but it shouldhave been so decided keeping in view the law laid down by this Court inthe case of Roshanlal vs. Madan Lal (AIR 1975 SC 2130) which laysdown the principle as to how the issue of such a nature needs to be dealtwith by the Executing Court when it is raised by the judgment debtor inexecution proceedings.

22. It is due to these two aforementioned reasons, we are of theconsidered view that the order passed by the Revisionary Court is notlegally sustainable.

23. So far as the impugned order passed by the High Court isconcerned, in our view, the High Court having noticed the aforementionederrors in the order of the Revisionary Court should have remanded thecase to the Revisionary Court for deciding the revision afresh on meritsin accordance with law. Instead, the High Court itself went into thequestion on merits and upheld the order of the Executing Court. This, inour opinion, the High Court should not have done and left it for theRevisionary Court to do.

24. By these observations, we do not mean that the High Courthad no jurisdiction to decide the issue but having regard to the nature ofobjections, remedy available to the parties to have finding on the questionarising in the case one way or the other from the Revisionary Court andto put the record straight, it was not called for in this case.

25. It is for these reasons, we consider it proper to set aside theimpugned order and also the order of the Revisionary Court and remandthe case to the Revisionary Court to decide the defendants’ (appellants’)revision afresh on merits in accordance with law.

A

B

C

D

E

F

G

H

A26. The Revisionary Court would decide the legality andcorrectness of the order passed by the Executing Court dated 28.10.2015on merits keeping in view the law laid down by this Court in Roshanlal(supra) and other cases on the subject.

27. While deciding the revision, the Revisionary Court would notBbe influenced by the observations contained in impugned order and alsoof this Court order because we have not applied our mind to the meritsof the case having formed an opinion to remand the case to theRevisionary Court.

28. The appeals thus succeed and are accordingly allowed in part.CImpugned order and the order of the Revisionary Court are set asideand the case is remanded to the Revisionary Court to decide thedefendants’ (appellants’) revision (No.333/2015) afresh on its merits inaccordance with law.

29. Since the matter is an old one, we direct the Revisionary CourtDto decide the revision within six months as an outer limit.

Nidhi Jain

Appeals partly allowed.

E

F

G

H