R.B. Mehta, J.
1. This is a civil revision application against an order passed by the learned Assistant Judge, Surat, by which the learned Assistant Judge reversed the decree of the trial Court and sent thecase back for re-trial.
2. The matter arises this way; The original suit was filed by the two plaintiffs who were the owners o Survey No. 428, which was within the jurisdiction of Surat Borough Municipality. This land was given to the defendant and his predecessors on a yearly lease by the plaintiffs and their predecessors-in-title. The plaintiffs sought to terminate the lease by a notice, dated 5th July 1955. As the tenants did not vacate the land, they filed an ejectment suit, also claiming mesne profits, municipal tax and revenue assessment. The defendant's defence was that he was a protected tenant under the Bombay Tenancy and Agricultural Lands Act, 1948, thereinafter referred to as 'the Act'); that the notice was bad and that he was not bound to pay the municipal tax and revenue assessment. The trial Court held that the defendant was not entitled, to the benefit of the Act and that, therefore, the Civil Court bad jurisdiction to try the suit. It also held that the notice wag valid and passed a decree for ejectment and mesne profits in favour of the plaintiffs, holding further that the plaintiffs were not entitled to recover the municipal tax and revenue assessment.
3. It may be stated that during the course of the trial at the stage when one of the plaintiffs' examination-in-chief was proceeding, the defendant had applied for an amendment of his Written Statement taking a defence that the defendant was a permanent tenant. The trial Court rejected this application for amendment. The defendant went to the High Court in revision against the trial Court's order rejecting his application for amendment. The High Court also rejected therevision application. Thereafter the suit proceeded resulting in the passing of a decree in favour of the plaintiffs as stated above. Against the decree of the trial Court, the defendant filed an appeal in the Court of the District Judge at Surat. The learned Assistant Judge, Surat, on the issue of jurisdiction held that the defendant-appellant was not entitled to the benefit of the Act and further held that the Civil Court had jurisdiction but before deciding the rest of the issues before the first appellate Court, the learned Assistant Judge allowed the defendant's application for amendment to the effect that he was a permanent, tenant, holding that in substance the defendant bad pleaded this defence in his Written Statement. Having come to this conclusion that the defendant's application for amendment should be allowed, the learned Assistant Judge, instead of framing the additional relevant issue and sending it back to the trial Court, passed an order allowing the appeal and reversing the decree of the trial Court, making an observation that the defendant was not entitled to the benefit of the Act. The learned Assistant Judge also ordered that the case be remanded to the trial Court and be disposed of according to law after raising an issue regarding the alleged permanent tenancy of the defendant and such other incidental issues as may arise and after allowing the parties to lead evidence in respect of such issues. The effect of this order was that the whole case went back to the trial Court for a de novo trial except on the issue in regard to the jurisdiction question raised under the Act. The reason given by the learned Judge for taking this course was that the alternative course of framing an issue regarding the permanent tenancy and sending it to the trial Court to record evidence on it and certify a finding thereon to the first appellate Court within a particular time would have been disadvantageous to the partis. The learned Assistant Judge further observed that the grounds on which the plaintiffs would be entitled to evict an annual tenant would not be the same on which he would be entitled to possession against a permanent tenant, for the plaintiffs would have to make out and prove such grounds as would entitle them to cause the defendant's eviction as a permanent tenant and the question of enhancement of rent under Section 83 of the Land Revenue Code would also arise involving questions regarding the circumstances, agreement, usage or custom. The learned Assistant Judge further observed that in view of the trial Court's finding that the plaintiffs were entitled to enhance the rent to the extent of Rs. 325/- on the basis of annual tenancy, it would also be necessary to re-examine this finding, if the plea of permanent tenancy is sustained.
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5. The next question that arises is as to the proper order which the learned Assistant Judge should have passed. It is clear, in this case, that the trial Court had decided the case not On a preliminary point only but On merits and on all points. It was, therefore, not open to the learned Assistant Judge to remand the whole case back for trial and incidentally allowing the parties to re-agitate the questions which bad already been agitated in the trial Court. The effect of the learned Assistant Judge's order is, as I have stated earlier, that barring the question of Jurisdiction under the Act, the whole case has gone back for re-trial to the trialCourt. I have also referred to the reasoning oh the learned Assistant Judge on this point. The reasoning adopted by the learned Assistant Judge, with respect, does not seem to be correct. The proper course for the learned Assistant Judge was to proceed as provided for under Order 41, Rule 25 C.P.C. and to frame such additional issues, which he thought were necessary and send them back to the trial Court and direct the trial Court to take evidence on the same and send them back to the first appellate Court with its finding. The reasoning which the learned Assistant Judge gave for adopting the course, which in fact he has adopted, as I have stated earlier, is not correct; for by the amendment the only issue that arises is whether there was a permanent tenancy as alleged by the defendant in his amended Written Statement. The other incidental questions which have been referred to by the learned Assistant Judge did not arise consequent upon the amendment, for there is no plea either in the Written Statement or by way of amendment that the plaintiffs-landlords were not entitled to enhancement of rent either by contract, usage or custom. The question of the grounds of eviction of a permanent tenant also does not arise consequent upon, the amendment, as no such pleading has been introduced by way of the amended pleading. Therefore, the reasoning given by the learned Assistant Judge for adopting the course, which he has adopted, is not correct. But that apart, in my view, it was not open to the learned Assistant Judge to send the whole case back for re-trial.
6. In this connection, reference may be made to Kalu Dalpat Patil v. Narayan Dagadu Sutar, 29 Bom LR 56: (AIR 1927 Bom 111), where a Division Bench of the former High Court of Bombay has observed as follows:--
'Where the decision of the trial Court is not based on a preliminary point the Court of appeal in reversing the decision on one issue is not at liberty to remand the whole case for retrial, but must deal with the appeal on the merits. If it finds that any particular issue is not decided by the trial Court or that further evidence Is necessary on any point, it ought to act under Order XLI, Rule 25, of the Civil Procedure Code.'
So also in 31 Rom LR 208 : (AIR 1929 Bom 175), in the case of Annaji Ramchandra v. Thakuhai Dattatraya, a Division Bench of the former High Court of Bombay consisting of Chief Justice Sir Amberson Marten and Mr. Justice Murphy observed to the following effect:--
'Where a District Court is of opinion that certain findings of fact are necessary for the proper disposal of an appeal and that evidence should be led on these points, the correct procedure for the Court is to frame issues and refer them for trial to the trial Court. Findings should then be returned to the District Court which must rehear the appeal so far as is necessary, and dispose of it, under Order XLI, Rule 25, of the Civil procedure Code. It is not competent to the District Court in such a case to reverse the decree and remand the case tc the trial Court for disposal under rule 23, which only applies to the casewhere a suit has been decided on a preliminary point.'
7. The view which I have taken is supported by the above decisions. The petition is, therefore quite clear that in a case like the present one, where the trial Court has decided the case not on a preliminary issue but on merits and when the matter comes in appeal, it is not correct for the first appellate Court to reverse the decree of the trial Court and to remand the whole case back to the trial Court but that the first appellate Court should act under the provisions of Order XLI, Rule 25 of the Code of Civil Procedure.
8. In these circumstances, in the present case, I set aside the order of the learned Assistant Judge and direct the framing of the following issue:--
'Whether the defendant is a permanent tenant as alleged by him in his amended Written Statement?'
I further direct that this issue be tried by the trial Court allowing the parties to lead their evidence. The trial Court should record its finding on this issue and return the evidence on this issue to the first appellate Court together with its finding thereon and the reasons therefore and after the finding on the issue, which I have directed above, is sent to the first appellate Court, the first appellate Court will proceed with the appeal from the stage where it is left. The parties will be at liberty to file their objections, if any, against the finding of the trial Court before the first Appellate Court. The petitioners (original plaintiffs) to get the costs of the suit in the trial Court as well as the costs of the first appellate Court as well as of this Court from the opponent (Original defendant).
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