JUDGMENT
A.C. Goyal, J.
1. This civil misc. appeal has been preferred by the plaintiff-appellants against the order dated 4.4.1998 whereby learned Additional District Judge No. 6, Jaipur City, Jaipur remanded the case to the Trial Court for afresh decision after hearing on certain points.
2. The plaintiff-appellant No. 2 Smt. Kamla Devi filed a suit for eviction in May, 1991 with the averments that suit house was let out to the defendant in the year 1987. Prior to that her husband was the tenant who died in the year 1987. Eviction was sought on the ground of reasonable and bonafide requirement and alternative accommodation available to the defendant.
3. Vide written statement the defendant admitting herself to be the tenant denied the remaining averments of the plaint.
4. Issues were framed. Evidence was recorded. During the pendency of the suit, this fact was brought on record that the plaintiff Smt. Kamla Devi sold the suit house, hence issues with regard to requirement of the plaintiff were left undecided and while deciding the issue No. 4 that the defendant has got her own house against the plaintiff, the suit was dismissed.
5. Three appeals were decided vide impugned judgment dated 4.4.1998. First is civil misc. appeal No. 1/1997. This appeal was filed by the appellant No. 1 Sh. Ram Chandra Sharma against the dismissal order of the application filed by him during the trial to implead him as co-plaintiff on the ground that the suit house was purchased by him. This appeal was allowed vide this judgment. First appeal No. 5/1997 was preferred by Smt. Kamla Devi while the appeal No. 7/1997 was filed by Sh. Ram Chandra against the judgment dated 3.1.1997 dismissing the suit filed by Smt. Kamla Devi on the ground of decision of issue No. 4 against the plaintiff. The First Appellate Court having heard submissions on the issue No. 4 observed that the Trial Court did not consider the following points:-
(i) As to when alternative accommodation was made available to the defendant-tenant and at what time this was made a ground of eviction by the landlord ?
(ii) When alternative accommodation made available to the tenant, was that sufficient accommodation at that time ?
(iii) Whether the tenancy of the defendant commenced afresh and thus this ground of eviction was not more available to the plaintiff-landlord ?
and the First Appellate Court remanded the case to the Trial Court for afresh decision on the issue No. 4 after hearing learned counsel for the parties.
6. Learned counsel for the appellants placing reliance upon P. Purushottam Reddy and Anr. v. Pratap Steels Ltd. (2002) 2 Supreme Court Cases 686, contended that no additional issue was framed, no additional evidence was to be recorded and three points which require consideration according to the First Appellate Court could have been considered in the first appeal itself and in view of the provisions of Order 41 Rule 24 C.P.C. the First Appellate Court should have decided the appeal on merits. Per contra, learned counsel Mr. Chaudhary contended that the appellant No. 1 Sh. Ram Chandra was impleaded as co-plaintiff in the first appeal, hence the case was rightly remanded for afresh consideration.
7. I have considered the rival submissions. Order 41 Rule 23 C.P.C. provides that where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case. Rule 23-A provides that where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23. Rule 25 provides that where the Court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues and refer the same for trial to the court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required. None of the above provisions are applicable in the instant case. A perusal of the impugned judgment goes to show that this order of remand is not passed under the provisions of Rule 23, 23-A and 25 C.P.C. Rule 24 C.P.C. provides that where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. In the instant case either party did not make any prayer that some additional issue should be framed or additional evidence is required and for that the case should be remanded to the Trial Court. The evidence of both the parties was available on the record and the points which require consideration according to the First Appellate Court should have been decided on the basis of the evidence available on the record. According to learned counsel for the appellants, there are pleadings and the evidence of both the parties covering all the three points which required afresh consideration according to the First Appellate Court. The judgment delivered by the Hon’ble Supreme Court in P. Purushottam Reddy and Another’s case (supra), is fully applicable in the instant case.
8. Consequently, this appeal is allowed. The impugned order of remand passed by learned Additional District Judge No. 6, Jaipur City, Jaipur in appeals No. 5/1997 and 7/1997 is set aside. Both these appeals shall stand restored to the file of the Additional District Judge No. 6, Jaipur City, Jaipur and both the appeals shall be decided afresh after affording an opportunity of hearing. No order as to costs. The parties are directed to appear before the First Appellate Court on 22.11.2004.