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Bhanwar Lal v/s Tikam Chand & Others

    Civil Second Appeal No. 77 of 1996

    Decided On, 18 July 2000

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE N.P. GUPTA

    For the Appellant: N.S. Acharya, Advocate. For the Respondents: Hemant Shrimali, Advocate.



Judgment Text

1. Heard Learned counsel for the appellant.

2. Two questions have been mainly argued by the learned counsel for the appellant.

3. First being that the impugned judgment and decree passed by the learned lower appellate Court is wholly without jurisdiction in view of Ordinance No. 02/1992.

4. The submission of the learned counsel for the appellant is that according to S. 21, after amendment, the appeal against judgment and decree of the Munsif could not be heard by a Civil Judge, as the appeal according to S. 21, can be preferred to a District Judge and even under S. 24, the appeals cannot be transferred unless transferee Court is competent to hear the appeals, and since there is no Notification issued by the High Court, with previous approval of the State Government, under S. 21 authorising the Civil Ju

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dge to hear the appeals, the transferee Court itself being incompetent, the impugned judgment and decree is thus without jurisdiction.

5. Learned counsel in this regard placed reliance on the judgment of this Court in Tara Chand v. Shradhanand reported in (1995) 2 DNJ 452 : (1996) AIHC 2242). Having gone through the judgment, in my view, on facts this judgment is of no assistance to the learned counsel for the appellant, inasmuch as Tarachand's case was a case which arose from transfer of a suit and it is in that context, in para 9 of the judgment, it was observed that the transferee Court should be competent to try and dispose of the same. As against which, learned counsel for the respondent has placed reliance on another judgment (though a single Bench judgment) of this Court in Mohan v. Kanni reported in (1994) 2 WLN 36 which was a case of transfer of an appeal and in that case, in para 6, it was clearly held that since the appeal was filed before the District Judge, it was registered with the District Judge which was transferred under S. 24, CPC for decision and was not a case where the appeal was preferred to the Civil Judge who may have entertained the appeal. It was also held that the Rajasthan Civil Courts Ordinances does not control the provisions of CPC under which the District Judge enjoys independent power of transferring any case pending before it to Courts subordinate to it for its decision. It was also held that the civil Judge is not a Court incompetent to decide the appeal against any order made by a Court inferior to it on being transferred to it by District Judge under S. 24.

6. I may also refer here to the provisions of S. 22 of the Ordinance which also clearly permits a District Judge to transfer to any civil Judge under his administrative control any appeals pending before him against the decrees or the orders of the Munsif.

7. The contention about competency of the transferee Court, in my view, has rightly been decided in Mohan's case (1994 (2) WLN 36) inasmuch as notwithstanding the fact that there is no Notification under S. 21, by virtue of S. 22, the Civil Judge is competent to hear the appeals that may be transferred to him by the District Judge as by such transfer, it cannot be said that the appeal is being preferred to him. In this view of the matter, the contention of the learned counsel for the appellant has no force.

8. The second question argued is that since the decree for eviction has been passed on the ground of reasonable and bona fide necessity as contemplated in S. 13(1)(h) of the Act, according to S. 14(2) of the Act, the question of partial eviction was required to be decided, and placing reliance on a judgment of this Court in Riyaz Mohammad v. Rameshwar reported in (1989) 1 Raj LW 95, it has been contended that for deciding the question, an additional issue was required to be framed and the matter was required to be remitted to the learned trial Court by the learned lower appellate Court. Assailing the finding recorded by the learned lower appellate Court on the question of partial eviction which has been recorded on the basis of statement of plaintiff PW-1 and the fact that even before the learned lower appellate Court, no material to the contrary has been placed on the side of the appellant-tenant to show as to how partial eviction is possible, it has been contended that in Riyaz Mohd's case, it has been clearly held that issue is required to be framed and matter remitted, then only the appellant would have been in a position to bring material on record. I also pointedly asked to the learned counsel for the appellant on the point, if there is any material on record to show as to how the partial eviction is possible or to show that the dimensions of the shop, situation thereof and placement of the door etc. as deposed by the plaintiff is in any manner wrong. To this again, the contention was maintained that even this Court cannot go into this question and only course open is to frame an issue and remit the matter to the trial Court.

9. Unfortunately, the learned counsel for the respondent could not point out any judgment to the contrary to support the judgment of the learned lower appellate Court.

10. Suffice it to say that prior to the judgment in Riyaz Mohd's case (1989 (1) Raj LW 95). Hon'ble Justice S.C. Aggarwal (as he then was) on 10-3-89, in Ram Babu v. Padam Chand reported in (1989) 1 Raj LW 372, decided on 21-1-89 did consider the question and in para 17 negativing the contention of the defendant, went on examining of question of partial eviction on the basis of material on record, and did negative the contention about partial eviction and held that it is not possible to divide the premises so as to pass a decree for partial eviction.

11. The other judgment of this Court is in Narsingh Dass v. Jeth Mal reported in (1988) 1 Raj LW 555 : (AIR 1988 NOC (Raj) 173), which was a case where, during appeal, the defendant moved an application before the learned lower appellate Court for framing an issue of partial eviction which application was dismissed. Against that order, a revision was filed before this Court, and reliance was placed by the defendant-petitioner therein on the judgments relied upon by this Court in Riyaz Mohd's case (1989 (1) Raj LW 95). However, after consideration of all those judgments and following the earlier, judgment of this Court in Hanuman Das v. Sanwalram reported in (1982) 2 Ren CR 735 that this requirement of framing an issue and partial eviction need not be insisted upon in a case of single shop or single apartment and also considering other various judgments, the revision was dismissed.

12. Similarly in Rajkumar v. Mehar Chand reported in (1990) 2 Raj LR 731, this Court went on to the extent that even non giving of finding by the Courts below on the point of partial eviction does not effect the position where the things are so apparent that partial eviction is not possible.

13. I may also refer to yet another judgment of this Court in Vishwapriya Nagar v. Immamudin, reported in 1996 DNJ (Raj) 482, wherein the order of remand passed by the learned lower appellate Court on the question of partial eviction was challenged and the single Bench of this Court by referring to and relying upon a Division Bench order of this Court passed in S. B. Civil Second Appeal No. 19/92 Lal Chand v. Shyamlal, allowed the appeal and set aside the order of remand. The relevant part of the order of Division Bench relied upon has been quoted in para 5 of the report as under :-

".........if there is already material on record, the satisfaction of the Court as required under sub S. (2) of S. 14 can be there and it may not be necessary to frame issue and remit record for recording evidence."

14. Suffice it to say that, in view of the above mentioned Division Bench Judgment said to have been given on a pointed reference on the question, it is not open to the learned counsel for the appellant to contend that it is necessary in all cases to frame an issue and remit the matter to the trial Court for deciding afresh.

15. Since, the finding recorded by the learned lower appellate Court on the question of partial eviction is not vitiated on any of the grounds open to challenge under S. 100, CPC nor any such material has been placed before this Court, to even dispute the finding, this contention is also negatived.

16. As a result of the above discussion, the present appeal has no force and is hereby dismissed summarily.
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