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Balasubramania Iyer Vs. Subbiah thevar and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 144 of 1961
Judge
Reported inAIR1965Mad417
ActsCode of Civil Procedure (CPC), 1908 - Order XLI, Rules 23 and 25; Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956 - Sections 3(9)
AppellantBalasubramania Iyer
RespondentSubbiah thevar and anr.
Cases ReferredRamakrishna v. Rangayya
Excerpt:
.....in rent court--delivery of possession--suit for arrears of rent--decree by trial court--on appeal suit remanded--validity--on what grounds to be remanded;the plaintiff (appellant herein) granted a lease to the first defendant evidence by a registered lease deed in the year 1954 comprising nanja lands of an extent of about thirty-two acres for a period of five years. the first defendant is the lessee, and the second defendant is his surety for the due performance of the obligations of the lessee. for two years the lessee paid the rent due to the plaintiff but trouble arose during the subsequent years. the lessee issued a notice in 1957 to the landlord (plaintiff) purporting to be under section 3 (9) of the madras cultivating tenants (payment of fair rent) act (xxiv of 1956) in which the..........back for trial is well settled. under order 41 rule 23 c.p.c. the appellate court has got power to remand a suit for fresh disposal (a) if the suit has been disposed of on a preliminary point or (b) if the appellant court considers that it is necessary in the interests of justice that he matter should be disposed of afresh by the trial court. it has been repeatedly pointed out by this court that this power of remand ought not to be lightly exercised by the appellate court, where it has failed to discharge its own duty of disposing of the appeal on merits. frequent instances are coming to the notice of this court in which orders of remand are passed under o. xli rule 23 c.p.c. indiscriminately even thought the requirements of law were not satisfied at all. if the trial court has not.....
Judgment:
(1) This appeal is preferred by the plaintiff against the order of remand of the learned District Judge, East Tanjore, directing the trial court, the Sub Court, Mayuram, to try afresh and dispose of the suit, O. S. 26 of 1958, after giving opportunity to both sides to adduce additional evidence in the light of the observations made by him in his order. This order of remand is clearly illegal and opposed to the provisions of Or. XLI Rule 23 C.P.C.

(2) The facts of the case may be briefly stated. The plaintiff (appellant herein) granted a lease to the first defendant evidenced by a registered lease deed, Ex. A. 1, dated 29-6-1954, comprising nanja lands of an extent of 32 acres 90 cents for a period of five years. The first defendant is the lessee, the second defendant being his surety for the due performance of the obligations of the lessee. For two years the lessee appears to have paid the rent due to the plaintiff but trouble arose during the subsequent years.

(3) On 2-2-1957, the lessee issued notice, Ex. B. 17, to the landlord purporting to be under S. 3(9) of the Madras Cultivating Tenants (Payment of Fair Rent) Act, Act XXIV of 1956 (hereinafter called the Act) in which the lessee stated that he was surrendering the lease as he had leased the lands to certain tenants who were claiming rights under the said Act. The plaintiff however did to accept the stand taken up by the lessee, as according to him, the first defendant (lessee) alone was in actual cultivation and enjoyment of the property, and his case of sub-lease was wholly false. As the first defendant was in default and as there were arrears in the payment of rent, the plaintiff filed a petition in the Rent Court for recovery of possession and on 20-2-1958, the Rent Court granted time till 5-3-1958 to the lessee for payment of arrears of rent. But the lessee did not comply with that order of the Rent Court, which therefore passed an order of the Rent Court, which therefore passed an order of eviction on 6-3-1958. The plaintiff took possession of the property through court form the first defendant (lessee) in April 1958. The present suit O. S. 26 of 1958, has thereafter been filed by the plaintiff to recover Rs. 9882-50-NP being the arrears of rent.

(4) The main defence of the first defendant was that he had sub-leased the properties to some sub-tenants putting them in possession of the properties that he had already issued to the plaintiff a notice of surrender. Ex. B. 17, aforesaid, and that he was therefore not liable for arrears of rent and the lessor's remedy, if any, was against the sub-lessees. As regards the quantum of arrears claimed in the suit, there was no dispute and the only serious point of controversy between the parties related to the question of factum of sub-lease and the alleged surrender. Both the parties adduced oral and documentary evidence touching this aspect of the matter.

(5) At the outset it must be noticed that both the parties had adduced whatever evidence, both oral and documentary, they desired and there has been no complaint whatsoever either in the trial court or in the appellate court that any of the parties desired to adduce additional evidence. So far as the parties were concerned fully considered judgment the trial court came to the clear conclusion that the first defendant alone was in cultivation and possession of the properties, and that the case of sub-lease put forward by him was wholly false and cannot possibly be accepted. From a perusal of the discussion of the oral and documentary evidence by the trial Judge it is clear that the evidence adduced by the first defendant was worthless and utterly false; in fact I would say that it is not possible to come to any conclusion on the evidence. The trial court naturally took into account the fact that the first defendant had no consistent case as to when the sub-lease was created, when possession was handed over the sub-lessees, what the terms of the lease were and when and how they invoked the benefit of the Act as against the first defendant.

A perusal of the written statement shows that the first defendant himself could never have believed in such a case. He could not even give precise details as to when exactly the sub-tenancy commenced when the matter reached the stage of evidence it became worse. The first defendant gave utterly discrepant and prevaricating versions on which no court could possibly place any reliance. The evidence of the other witnesses examined on the side of the first defendant was equally worthless sand suffered under the same infirmity. The first defendant relied upon certain lease deeds alleged to have been exchanged between himself and his sub-lessees but having regard to the circumstances and the setting in which they came to be executed and produced in court the learned Sub-Judge had no hesitation in coming to the conclusion that those lease deeds were fabricated for the purpose of the case and evidenced no real sub-lease.

(6) When a suit is filed by a landlord to recover arrears of rent due form a tenant who was induced into possession in pursuance of the lease, the burden is clearly upon the lessee to allege and prove that during the currency of the lease and for the period for which rent was claimed, he had delivered possession of the property back to the lessor. Unless such redelivery of possession of the property to the lessor is established, the tenant will clearly be liable for arrears of rent. Learned counsel for the respondent however contends that this position under the general law will not apply to a tenant who is governed by Madras Act XXIV of 1956. He contends that under S. 3(9) it is enough if the tenant sends a notice to his landlord that on account of the sub-leases granted by the tenant he is not liable to pay the rent. There is no force in this contention.

From a reading of S. 3(9) it is clear that if a tenant desires to get the benefit of that provision he must establish that he has inducted certain sub-tenants into his lands, and that those, sub-tenants were not only entitled to the benefits of Madras Act XXIV of 1956 but they had also actually claimed those benefits and that as a consequence thereof there has been a reduction in the rent payable to the main tenant by the sub-tenant. In my opinion, both these conditions must be concurrently satisfied; (a) that he sub-tenants should be entitled to the benefits of the Act and (b) that the sub-tenants actually claimed the benefits, after availing themselves of the provisions of the Act resulting in a reduction of the rent that was originally stipulated by the main tenant. The evidence in this case does not satisfy either of the two conditions. None of the sub-lessees had been examined in this case. No evidence has been adduced as to the rent originally stipulated or s to which of the sub-lessees claimed the benefit of the Act, and whether there had been any consequent reduction in the rent payable by them. On the facts of the instant case I have no doubt that S. 3(9) does not help the first defendant in any manner.

(7) It should also be noticed that it is not even the case of the first defendant that at any point of time the plaintiff took possession of the property earlier than April 1958, through court proceedings. In view of the overwhelming evidence in favour of the plaintiff and the total failure of the first defendant to establish rightly decreed the suit as prayed for.

(8) It is very surprising that the learned District Judge in appeal has simply remanded the suit for retrial giving fresh opportunity to the parties to adduce additional evidence, thereby almost inviting the parties to adduce perjured evidence. The learned District Judge nowhere in his judgment finds that the judgment of the learned Subordinate Judge in wrong or requires to be set aside or reversed so as to satisfy the conditions of Order XLI Rule 25 C.P.C.

(9) The powers of an appellate court to pass an order of remand and to send the case back for trial is well settled. Under Order 41 Rule 23 C.P.C. the appellate court has got power to remand a suit for fresh disposal (a) if the suit has been disposed of on a preliminary point or (b) if the appellant court considers that it is necessary in the interests of justice that he matter should be disposed of afresh by the trial court. It has been repeatedly pointed out by this court that this power of remand ought not to be lightly exercised by the appellate court, where it has failed to discharge its own duty of disposing of the appeal on merits. Frequent instances are coming to the notice of this court in which orders of remand are passed under O. XLI Rule 23 C.P.C. indiscriminately even thought the requirements of law were not satisfied at all. If the trial court has not disposed of the suit on a preliminary point but has delivered judgment on merits it is the duty of the appellate court to deal with the appeal on its merits. It is only in exceptional cases where the judgment of the trial court is wholly unintelligible or incomprehensible that the appellate court can remand the suit for a fresh trial. The fact that there are some defects and infirmities in the reasoning of the trial court is surely not a ground for the appellate court not to do its duty of disposing of the appeal on merits. The appellate court will be acting clearly without jurisdiction if it simply and mechanically remands a suit to the trial court without applying its mind as to whether the judgment and the findings of the trial court are correct and if not whether it should be reversed or set aside. In other words, the appellate court should come to the clear conclusion that the findings of the trial court cannot be supported and must be set aside. Ends of justice require that a party litigant who had incurred expenses and undergone all the ordeal and trouble of a protracted trial in the trial court should not be deprived of the benefit of the adjudication and be obliged to fight the case, over again for some defect or mistake in the form of expression of the trial court. The tendency of the part of the appellate court to remand a suit on slender grounds cannot but be strongly deprecated.

(10) In Veeramma v. Lakshmayya, AIR 1948 Mad 488 it was held that a remand by the appellate court which did not take the trouble to apply its mind to the findings on the trial court and dispose of the appeal on its merits because of the manner in which the trial court has written the judgment and given its findings was illegal without jurisdiction. After adverting to the amendment of Rule 23 O. XLI C.P.C. Horwill J., observed as follows:

".................... but under the present rule the appellate court can also remand the suit if in reversing or setting aside the decree it considers it necessary in the interests of justice to do so. But it cannot do so without considering the facts. It is only where the appellate court finds it necessary to reverse or set aside the decree that it is entitled to remand the suit. It is not necessary in this case to go so far as to say that if the judgment of the trial court is so completely incomprehensible as to be of no value at all, the appellate court has no jurisdiction to order the trial court to write another judgment; but the judgment in this case, as already pointed out, does contain the findings on all the material questions of fact and law".

In Chithiah Mudaliar v. Govinda Pandithan, AIR 1949 Mad 394 the same Judge has to deal with a case in which the appellate court passed an order of remand directing the suit to be disposed of afresh after receiving additional evidence. It was held that he fact that additional evidence was received would still be no ground for the order of remand and that it can be passed only when the appellate court has decided that it is necessary to set aside the decree, because the fresh evidence could and should be considered by the appellate court together with the evidence cannot be circumvented by a mechanical order of remand. It is unnecessary to refer to the other cases on the point and it is sufficient to refer to the recent judgment in Ramakrishna v. Rangayya, which contains a discussion of the entire case law. In that case it was held that the power of remand is not an arbitrary one but should be based upon sound and reasonable grounds, and that the appellate court should not rashly and without sufficient cause direct a remand of the suit. It was emphasised that the mere fact that the evidence on record is not sufficient to enable a court to come to a definite finding on the point in issue is not a sufficient ground to justify a remand under O. XLI Rule 23. Reference may be made to the following observations at p. 784:

"It has been repeatedly held by this court that a remand should not, generally speaking, be ordered when the effect in the proceeding has been made due to the negligence or default of the party who will benefit by the remand. It has been further held that the mere fact that the evidence on record is not sufficient to enable a court to come to a definite finding on the point in issue, is not sufficient to enable the court to remand the case, when there is no reason to think that he parties did not have an opportunity of producing all the evidence that they desired to produce before the trial court. There is a clear danger that in such cases as remand order may in effect be an invitation to perjury."

In the instant case the learned District Judge has not borne in mind any of the principles mentioned above. A perusal of the judgment shows that he agrees with the reasoning and findings of the learned Subordinate judge which shows that the former never felt that the judgement of the trial court must be set aside or reversed. It is simply a case in which the appellate court has directed the trial court to think over the matter once again and give fresh findings in better language. Further directions contained in the order of remand are vague and are too general in character. The statement in paragraphs 8 and 11 of the lower appellate court's judgment that it was sufficient for the first defendant to issue a notice Ex. B. 17 and that it was the duty of he plaintiff to reduce the property to his possession is meaningless and clearly erroneous. One is at a loss to understand how the lessor can take forcible possession when the lessee does not actually surrender but simply issues a notice putting forward a false and dishonest case of a sub-lease. In my opinion the findings of the learned Subordinate Judge are very clear and quite intelligible and amply supported by the evidence on record. I have therefore no hesitation settling aside the order of remand passed by the learned District Judge and direct him to dispose of the appeal on its merits. The respondents will pay the appellate the costs of the appeal. I may add that the observations contained in the judgment should not be understood as expressing should not be understood as expressing my final opinion on the merits of the case.

(11) Order accordingly.


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