@JUDGMENTTAG-ORDER
A.M. Naik, J.
This revision petition has been preferred against the impugned order dated 15.4.2009 passed by the District Judge, Gwalior in Miscellaneous Civil Case No. 37/2009.
Short facts relevant for the purpose of this case are that the Plaintiff-non-applicant No. 1 instituted a suit for eviction and recovery of arrears of rent against revisionist and non-applicant No. 2 under the provisions of M.P. Accommodation Control Act, 1961.
Defendants submitted their written statement refuting thereby the allegations contained in the plaint. They inter alia denied relationship of landlord and tenant between Plaintiff and Defendants.
In the light of pleadings, issues to the following effect were framed:
(1) Does there exist a relationship of landlord and tenant between Plaintiff and Defendants?
(2) Whether, the Defendants are in arrears of rent w.e.f. January, 2000 at the monthly rate of Rs. 300/- towards Plaintiff?
(3) Does, the Plaintiff bona fide require the disputed shop for business of herself and her husband?
(4) Whether, the Plaintiff and her husband have no other alternative vacant shop for the said purpose in the city of Gwalior?
(5) Whether, the Defendants have not paid rent to the Plaintiff despite demand notice?
(6) It there defect of non-joinder of the parties in the suit?
(7) Whether, the Plaintiff has paid sufficient Court fees?
(8) Relief and cost?
(9) Whether, the Plaintiff is owner of the disputed shop?
(10A) Whether, the Defendants have denied title of the Plaintiff?
(10B) Whether, the Plaintiff is entitled to decree for ejectment u/s 12(1)(b) of M.P. Accommodation Control Act?
Learned trial Judge after recording the evidence dismissed the suit with a finding that relationship of landlord and tenant between Plaintiff and Defendants did not exist. He further found that the Plaintiff is not an owner of the disputed shop and that the suit suffers from the defect of non-joinder of parties. However, the Court fees paid by the Plaintiff was found sufficient. Thus, issue Nos. (1),(6) and (9) were decided by the learned trial Judge in favour of the Defendants, whereas, issue No. (7) regarding sufficiency of Court fees was decided in favour of the Plaintiff. Learned trial Judge refrained from giving findings on issue Nos. (2) to (5) and (10A). Findings on them were not recorded as the same were not warranted according to learned trial Judge in the light of the finding about absence of relationship of landlord and tenant between Plaintiff and Defendants. Accordingly, the suit was dismissed. Aggrieved by the same, Plaintiff-non-applicant No. 1 preferred Civil Appeal No. 8-A/2008, wherein, order was passed on 11.8.2008. Learned lower appellate Judge found that the relationship of landlord and tenant between Plaintiff and Defendants was duly established. Accordingly, the findings on issue Nos. (1) and (9) were set aside. Since, findings on issue Nos. (2) to (5) and (10A) were not given by the trial Court, the case was remanded back to the trial Court and the judgment and decree of the trial Court dated 20.4.2007 was set aside. Learned trial Judge was directed to re-decide the suit.
Defendants/revisionist challenged the aforesaid remand order before this Court in MA No. 1015/2008.
This Court on 9th February, 2009 passed the following consensual order:
4. Consequently, the appeal is disposed of with the following directions:
(1) That, the impugned judgment and decree passed in Civil Appeal No. 8-A/2008 dated 11.8.2008 is hereby set aside.
(2) The matter is remanded back to the first appellate Court with a direction to decide the appeal on merits. The parties can raise all these issues before the first appellate Court.
(3) Looking to the nature of the case the first appellate Court is directed to decide the case within a period of four months from the date of receipt of a copy of this order.
(4) Parties are directed to appear before the first appellate Court on 25th of February, 2009.
Record be sent back immediately to the lower appellate Court.
Since, the matter, after remand was listed before the same presiding officer who had passed the remand order dated 11.8.2008, the revisionist submitted an application u/s 24 of CPC for transfer of the appeal to any other competent Court. It was stated in the application that the learned presiding officer of the lower appellate Court had already given finding about existence of relationship of landlord and tenant between Plaintiff and Defendants after discussing the evidence in paragraphs No. 8 to 30 of the judgment/order dated 11.8.2008, there would be every probability that the same findings will be maintained by the lower appellate Court despite remand. Thus, according to the revisionist, he would not get fair justice and shall have to suffer mis-carriage of justice.
Application of transfer u/s 24 of CPC was opposed by the Plaintiff-non-applicant No. 1.
Learned District Judge after hearing the arguments dismissed the application for transfer vide impugned order. Hence, this revision.
Shri Bharadwaj, learned senior Counsel raised preliminary objection that the civil revision against the impugned order is not maintainable. Reliance has been placed for this purpose on the decisions of this Court in the case of Ramdas v. Smt. Amrita and Ors. 2006 (II) MPWN 16 : 2006 (1) MPLJ 568, and Sawal Singh v. Smt. Ramsakhi and Ors. 2002 (2) JLJ 201 : 2003 (1) MPLJ 31 . Placing reliance on the decision of Sawal Singh (supra), it is contended by Shri Bharadwaj learned senior Counsel that the impugned order, even, if had been passed in favour of the revisionist would not have finally disposed of the suit. Therefore, according to him, the revision petition is not maintainable. He highly placed stress on the following passage extracted from the said decision:
Now this Court will not exercise revisional jurisdiction in respect of those orders which would not dispose of the suit finally. Though on the decision of the suit the effect of the order may be substantial, material, or on jurisdictional issues, but if immediate effect is not the final disposal, the revisional jurisdiction cannot be exercised, though those issues can definitely be raised when regular appeal is preferred.
(underlined by this Court).
For appreciating the aforesaid contention, it would be proper to consider the relevant portion of Section 115 of CPC applicable to the State of M.P. which is reproduced below:
115. Revision. - (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies therefrom and if such subordinate Court appears:
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceeding, except where-
(a) the order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or proceeding; or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.
(2)...
(3)...
Explanation: ...
Proviso to Sub-section (1) goes to show clearly that the revision petition within limitations of Section 115 CPC may be entertained against an order, if it had been made in favour of the revisionist, would have finally disposed of the suit or proceedings.
Thus, the contention of Shri Bharadwaj learned senior Counsel that the revisional jurisdiction would be exercisable only if the impugned order, if it had been passed in favour of the revisionist would have disposed of only the suit finally, is highly mis-conceived. The word "or proceeding" occurring in the aforesaid proviso cannot be altogether ignored. In Sawal Singh (supra), decision three civil revisions were considered, two of them arose from the applications for interim injunction, whereas, third one arose from the application under Order 6 Rule 17 Code of Civil Procedure. They arose on account of the applications submitted in the suit itself. In this context, this Court appears to have observed that the revisional jurisdiction will not be exrcised because orders impugned in Sawal Singh''s case would not have disposed of the suit finally. It is clear from the decision in the case of Ramdas (supra), that the revision against the order setting aside ex parte judgment and decree was found maintainable because the same would have finally disposed of the proceedings under Order 9 Rule 13 Code of Civil Procedure.
It is perhaps, needless to say that the application u/s 24 of CPC is registered independently in the Court of District Judge and the impugned order, if had been passed in favour of the revisionist would have disposed of the proceedings.
This being so, it cannot be said that the revision u/s 115 CPC against the impugned order is not maintainable.
I am fortified in my this view by Karnataka High Court decision in the case of M.V. Ganesh Prasad v. M.L. Vasudevamurthy and Ors. AIR 2003 Kar 39, wherein it is observed:
In the instant ease the impugned order is an order passed on a petition filed before the District Judge u/s 24, CPC and in a proceeding independent of O.S. 92/98 which was pending before the trial Court which was sought to be transferred. It cannot be said that the impugned order, passed by the learned District Judge u/s 24, CPC is an order passed in a pending proceedings in a suit, though the prayer in the application u/s 24 is for transferring the pending suit to some other Court which has jurisdiction. The order cannot be characterized as an order passed in the pending suit itself. If this is so, the proviso to Section 115, CPC is not attracted and as such the preliminary objection sought to be raised on behalf of the Respondent cannot be accepted.
Matter of transfer of a suit or any proceedings from one Court having a particular presiding Judge to Anr. Court having Anr. presiding Judge is quite sensitive and is to be exercised very cautiously as observed by Supreme Court of India in the case of
22. Although, the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection.
It is further observed:
23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to the Plaintiff or the Defendants or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice" demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the Plaintiff or the Defendant is not likely to have a "fair trial" in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.
In the case of
2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the Court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more impriling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case.
Shri Bharadwaj, learned senior Counsel placed reliance on certain citations which I am required to mention below in order to determine their applicability:
In the case of In the case of Mohd. Ashraf and Ors. v. Buta MNal and Ors. AIR 1944 Lah 400, it was held that decision by a Judge in the previous case on the question of facts arising in subsequent case before the same Judge was held to be no ground for transfer of the subsequent case. Contention of the revisionist is that the lower appellate Court had already recorded finding on crucial issue about relationship of landlord and tenant between Plaintiff and Defendants. In view of this much reliance has been placed by the Respondent on the decision of Andhra Pradesh High Court in the case of Soundara Raju and Anr. v. Bore Prasad 2004 AI HC 3135, wherein it is observed: 6. The proceedings cannot be transferred from one Court to Anr. on the basis of such contentions. Remanding of matters after setting aside the orders under revision or appeal is not an uncommon feature. In many cases, the matters come to be re-heard and adjudicated upon by the same presiding officers after remand. Almost without exception, it needs to be said to the credit of the officers that the matters were decided dispassionately, uninfluenced by their findings or views in the orders that are set aside. Such a dispassionate consideration is in fact, the hallmark of the very adjudicatory process. A Judge worth his name would never associate with any case, much less with the findings recorded in it in the earlier proceedings. The Petitioners have not doubted the integrity, impartiality or an independence of the learned presiding officer. There is nothing on record to lend any support to the apprehension of the Petitioners. It is needless to observe that if the Petitioners feel aggrieved of the outcome of the appeal or any interlocutory orders passed, it is always be open to them to seek appropriate remedy. In the case of Mt. Nathabai (supra), the question involved was propriety of a prayer for transfer of subsequent case because a particular law point was already decided by the same Judge in the previous case. In the present case, there is involvement of factual dispute about relationship of landlord and tenant and not of any point of law. In the case of Mohd. Ashraf (supra), transfer of subsequent case was sought on the ground that a common question of fact was decided by the same Judge in the previous case. In the case in hand, no transfer is sought on the basis of decision of factual aspect in a previous suit. In the case of Soundara Raju (supra), remand was made by the Higher Court after setting aside the findings of the lower Court by superior Court. In the present case, High Court has set aside the judgment and decree of the lower appellate Court without commenting on it''s view and has asked the Court to decide the appeal afresh. Thus, the factual scenario in the present case is different from that of the case of Andhra Pradesh High Court. Thus, none of the citations referred to by learned Counsel for the parties deal with the situation of the present case. In the case in hand, it may be seen that the suit of the Plaintiff was dismissed by the learned trial Judge with a finding that there did not exist relationship of landlord and tenant between Plaintiff and Defendants. In view of this finding, learned trial Judge refrained from giving findings on issue Nos. 2 to 5 and 10A. Learned lower appellate Judge after hearing the arguments in the appeal decided the issues pertaining to relationship of landlord and tenant between Plaintiff and Defendants in favour of the suitor and remitted back the matter to the learned trial Court to decide remaining issues. In MA No. 1015/2008 preferred against the remand order of the lower appellate Court, although, the findings of the learned lower appellate Judge about existence of relationship of landlord and tenant were disputed but at the stage of final order on 9.2.2009 a concession in the form of no objection was given by the learned Counsel for the landlord that the matter may be remanded back to the first appellate Court to decide the appeal on all the issues. Learned Counsel for the revisionist did not choose at that stage to demonstrate any kind of infirmity in the findings of the learned lower appellate Judge about existence of relationship of landlord and tenant between Plaintiff and Defendants. It is so revealed in the order dated 9.2.2009 passed by this Court in MA No. 1015/2008. For convenience, relevant operative portions are reproduced below: 1. Appellant has filed this appeal against the judgment and decree dated 11.8.2008 passed by VI Additional District Judge, Gwalior in Civil Appeal No. 8-A/2008. By the aforesaid judgment learned first appellate Court has remanded the case back to the trial Court to record its findings on issues No. 2 to 5 and 10.
Learned Counsel for the Plaintiff-Respondent No. 1, who is contesting Respondent, has submitted that he has no objection if the appeal be remanded back to the first appellate Court to pronounce its judgment on all the issues after setting aside the order of remand. Learned Counsel for the Appellant also has no objection on the aforesaid proposition. Consequently, the appeal is disposed of with the following directions: (i) That, the impugned judgment and decree passed in Civil Appeal No. 8-A/2008 dated 11.8.2008 is hereby set aside.
(ii) The matter is remanded back to the first appellate Court with a direction to decide the appeal on merits. The parties can raise all these issues before the first appellate Court. Perusal of the aforesaid order clearly goes to show that this Court did not either discuss or consider the manner of appreciation of evidence by the learned lower appellate Judge. Correctness or incorrectness of the finding was not gone into by this Court. Although, this Court in its order dated 9.2.2009 passed in MA No. 1015/2008 did not discuss or comment on the merits of the findings on issues No. 1 and 9 recorded by the lower appellate Court, yet in its best wisdom, this Court set aside the judgment and decree of the lower appellate Court dated 11.8.2008 and remanded back the matter to the lower appellate Court to decide the appeal on all the issues. Since, the counsel for the landlord himself expressed no objection for directing the lower appellate Court to pronounce the judgment on all issues after setting aside the judgment and decree dated 11.8.2008, there was perhaps no occasion for this Court to consider and discuss about merits/demerits of the judgment dated 11.8.2008. Learned Counsel for the Plaintiff could have indeed prayed/insisted for remand with a direction to decide merely the remaining issues. Instead, he himself conceded to the Defendants prayer for setting aside the order of remand (i.e. judgment and decree dated 11.8.2008) with a direction to decide the appeal afresh on all the issues. None of the parties placed before this Court, the memo of appeal in MA No. 1015/2008, in order to enable this Court about the scope of challenge to the remand order. Order of this Court dated 9.2.2009 being a consensual order nothing could be gathered from it that what transpired at the stage of arguments in MA No. 1015/2008, therefore, this Court requisitioned the record of MA No. 1015/2008. From the perusal of memo of appeal, it reveals that there are as many as 15 grounds (ground No. B to ground No. Q) in the memo of appeal to impeach the findings on issues No. 1 and 9. Consideration/discussion on these grounds was perhaps not warranted before this Court because of the consent of the counsel of the landlord for setting aside the order of remand and direction to the lower appellate Court to pronounce the judgment on all the issues. This being so, there did not arise any occasion to consider the merits/demerits of the reasons assigned by the lower appellate Court for arriving at the findings recorded against issues No. 1 and 9. On perusal of the judgment and decree dated 11.8.2008, it is found that the learned lower appellate Court has recorded the findings on issues No. 1 and 9 after appreciating the evidence in paragraph No. 8 to paragraph No. 30 of the judgment. This appreciation in the absence of discussion by this Court cannot be treated as correct or incorrect. Likewise, due to the consent of the learned Counsel for the landlord there did not arise any occasion even to comment in either way on the appreciation of evidence/material by learned lower appellate Court. Thus, it cannot be said that the appreciation or manner thereof and the conclusion arrived at by the lower appellate Court while deciding the issues No. 1 and 9 were approved or disapproved by this Court vide order dated 9.2.2009. Still it cannot be ignored that this Court in its best wisdom has set aside the judgment and decree of the lower appellate Court dated 11.8.2008 in its entirety which included setting aside of findings on issues No. 1 and 9 and has directed to decide all the issues afresh. This Court is quite conscious of the fact that the order of this Court dated 9.2.2009 passed in MA No. 1015/2008 does not amount to disapproval of the appreciation or findings recorded by the lower appellate Court in its judgment and decree dated 11.8.2008 because of absence of any discussion or comments. Similarly, it may be equally presumed that the counsel for the landlord being aware of grounds No. B to Q raised in the memo of appeal did not choose to appose the appeal and rather consented for setting aside the entire order of remand which included findings of the lower appellate Court on issues No. 1 and 9. Learned Counsel for the landlord could have prayed before this Court in MA No. 1015/2008 to direct the lower appellate Court to decide merely remaining issues which were not decided by the lower appellate Court in the first round of appeal. Instead, a consent was given by the landlord''s counsel to set aside the order of remand in its entirety with a direction to the lower appellate Court to decide the appeal on all the issues. In the case of Soundra Raja (supra), the findings or view were set aside by the superior Court and the matter was remanded back. In the present case, there did not arise any occasion to consider the findings or views of the lower appellate Court on account of the consent having been given by the landlord''s Counsel and resultantly appreciation of the lower appellate Court or the reasons assigned by the said Court could not be commented in either manner. In this peculiar situation, it is not deemed proper to treat the order of this Court dated 9.2.2009 as approval or disapproval of the appreciation made by the lower appellate Court or reasons assigned by the said Court in the judgment and decree dated 11.8.2008. Moreover, the honesty, sincerity and integrity of the Presiding Judge of the lower appellate Court seems to be beyond doubt as the same has not been even questioned in the least. This being so, the prayer of the revisionist/tenant for transfer of the case on judicial side cannot be accepted and is found to have been rightly rejected. However, it cannot be ignored that the findings against issues No. 1 and 9 by the lower appellate Court were disputed by the revisionist in the memo of appeal. In MA No. 1015/2008 by raising specific grounds No. B to Q (15 grounds). Learned Counsel for the landlord gave his consent in MA No. 1015/2008 to set aside the order of the lower appellate Court in its entirety with a direction to decide the appeal by the lower appellate Court on all the issues. This Court vide order dated 9.2.2009 in its best wisdom though on consensual basis has set aside the judgment and decree dated 11.8.2008 which included the findings on issues No. 1 and 9 which were recorded by the learned lower appellate Judge after appreciating the material vide paragraphs No. 8 to 30 of the judgment. Due to the consent given by the landlord''s counsel, there did not arise any occasion to consider/discuss the manner of appreciation or the reasons assigned by the lower appellate Court. Yet setting aside of the entire remand order including issues No. 1 and 9 by this Court coupled with the direction to decide all the issues afresh warrants hearing from the Judge who has not pre-judged the issues. It is a cardinal principle that justice should not be merely done but it should equally appear to have been done. Due to the peculiar and exceptional situation explained hereinabove, learned District Judge, Gwalior could have transferred the case on administrative basis. This Court vide order dated 26.6.2009 had called for the comments from the learned Presiding Judge of the Court of VI Additional District Judge, Gwalior. Learned Presiding Judge in a very fair and non-partisan manner has expressed her no objection in transferring the appeal from her Court. Accordingly, District Judge, Gwalior is hereby directed to transfer the appeal on administrative side to any other Court competent to hear and decide the same. Before parting with the matter, it is made clear that the debate of transfer could have been easily avoided, if the counsel for the revisionist had been alert at the time of order dared 9.2.2009 because such a prayer could have been conveniently made before this Court then and there. It is further made clear that the transfer of the case is being directed due to the peculiar and exceptional situation stated herein above and has absolutely no concern with the Presiding Judge of the lower appellate Court whose intelligence, honesty, integrity and sincerity were not even questioned in the least during entire arguments. In view of the earlier order of this Court, it is directed that the appeal is to be decided expeditiously latest by the end of the year 2009. No order as to costs.
