HIYA ASSOCIATES & ORS.versusNAKSHATRA PROPERTIES PVT. LTD.

                         [2018] 12 S.C.R. 135                             135


                   HIYA ASSOCIATES & ORS.                                 A
                                  v.
             NAKSHATRA PROPERTIES PVT. LTD.
                (Civil Appeal Nos. 9996-9997 of 2018)
                       SEPTEMBER 26, 2018                                 B
             [ABHAY MANOHAR SAPRE AND
            MOHAN M. SHANTANAGOUDAR, JJ.]
      Remand:
       Remand of case to Revisionary Court – On facts, failure of         C
the appellant-tenant to vacate possession of the suit premises to
respondent-owner in terms of the compromise, led to filing of
execution application by respondent – Objections raised by
appellant – Executing court overruling all the objections, directed
issuance of warrant of possession in respect of suit premises against     D
the appellants – Filing of Revision by appellant – Revisionary Court
remanded the matter to the Executing Court – In writ petition, the
High Court set aside the order of the revisionary court and restored
the order of the Executing Court – On appeal, held: Revisionary
Court erred in remanding the case to the Executing Court for its
fresh consideration on merits – Since the Executing Court had             E
already decided all objections raised by the appellants on merits
and had found no merit therein, the Revisionary Court was under
legal obligation to decide the legality and correctness of the findings
recorded by the Executing Court – Revisionary Court also erred in
allowing the appellants to file additional documents, which               F
were neither relevant and nor material for deciding the
correctness of the order passed by the Executing Court –
Furthermore, the High Court having noticed the errors in the order
of the Revisionary Court should have remanded the case to the
Revisionary Court for deciding the revision afresh on merits –
Thus, case remanded to the Revisionary Court for deciding the             G
revision afresh.
      Remand of a case to Subordinate Court – When necessary –
Held: Remand is necessary when the Superior Court while exercising
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136            SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A     its appellate or revisionary jurisdiction finds that the Subordinate
      Court has failed to decide some material issues arising in the case
      or there is some procedural lacuna noticed in the trial, which has
      adversely affected the rights of the parties or when some additional
      evidence is considered necessary to decide the rights which was
      not before the trial court.
B
            Partly allowing the appeals, the Court
            HELD: 1.1 The impugned order as also the order passed
      by the Revisionary Court are set aside. The case is remanded to
      the Revisionary Court for deciding the appellants revision afresh
C     on merits in accordance with law. [Para 14, 28] [140-A-B; 142-C]
             1.2 The Revisionary Court committed two errors. In the
      first place, it should not have remanded the case to the Executing
      Court for its fresh consideration on merits but it should have
      decided the revision on merits in accordance with law. It is for
D     the reason that the Executing Court had already decided all
      objections raised by the defendants (appellants) on merits and
      had found no merit therein. The Revisionary Court was, therefore,
      under legal obligation to decide the legality and correctness of
      the findings recorded by the Executing Court on its merits in its
      revisionary jurisdiction instead of remanding the case to the
E     Executing Court. Indeed, there is no justifiable reason, which
      could justify remand having regard to the nature of the objections
      raised by the defendants (appellants) before the Executing Court.
      This was not the case, which needed remand to the Executing
      Court for its fresh decision on merits. [Para 16, 17] [140-C-E]
F           1.3 The remand of a case to the Subordinate Court is
      considered necessary when the Superior Court while exercising
      its appellate or revisionary jurisdiction finds that the Subordinate
      Court has failed to decide some material issues arising in the
      case or there is some procedural lacuna noticed in the trial, which
G     has adversely affected the rights of the parties while prosecuting
      the suit/proceedings or when some additional evidence is
      considered necessary to decide the rights of the parties which
      was not before the Trial Court etc. Such was not the case here.
      [Para 18][140-F-G]

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  HIYA ASSOCIATES & ORS. v. NAKSHATRA PROPERTIES                         137


      1.4 The error committed by the Revisionary Court was               A
that it allowed the defendants (revision petitioners) to file
additional documents to prove their case. The documents sought
to be filed by the defendants were neither relevant and nor
material for deciding the legality and correctness of the order
passed by the Executing Court. The legality and correctness of
                                                                         B
the order impugned in the revision could be decided one way or
the other without the aid of any additional document but on the
basis of material already on record. Indeed, if the Executing Court
could decide the issue finally at its level, the Revisionary Court
too could do the same at its level. [Para 20] [141-A-B]
       1.5 As regards, the impugned order passed by the High             C
Court, the Court having noticed the aforementioned errors in
the order of the Revisionary Court should have remanded the
case to the Revisionary Court for deciding the revision afresh on
merits. Instead, the High Court itself went into the question on
merits and upheld the order of the Executing Court. The High             D
Court should not have done and left it for the Revisionary Court
to do. It does not mean that the High Court had no jurisdiction to
decide the issue but having regard to the nature of objections,
remedy available to the parties to have finding on the question
from the Revisionary Court and to put the record straight, it was
not called for in this case. [Para 23, 24] [141-E-G]                     E

      Roshanlal v. Madan Lal AIR 1975 SC 2130
      – referred to.
                        Case Law Reference
      AIR 1975 SC 2130              referred to         Para 21          F
      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9996-
9997 of 2018.
       From the Judgment and Order dated 21.07.2017 and 26.07.2017
of the High Court of Judicature at Bombay in Writ Petition No. 6733 of
                                                                         G
2017.
      D.N. Goburdhan, Ms. Pallavi Chopra, Advs. for the Appellants.
      Gourab Banerji, Sr. Adv., Sahil Tagotra, S. P. Mukherjee, Raka
Chatterjee, Advs. for the Respondent.
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138            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. 1. Leave granted.
            2. These appeals arise from the final judgment and order dated
      21.07.2017 & 26.07.2017 passed by the High Court of Judicature at
      Bombay in Writ Petition No.6733 of 2017 whereby the High Court
B     allowed the writ petition filed by the respondent herein, set aside the
      order dated 26.09.2016 passed by the Small Causes Court, Appellate
      Bench, Mumbai in R.A. No.333/2015 and restored the order dated
      28.10.2015 of the Executing Court in Execution Application No.31/2013
      in R.A.E. Suit No.872/2007.
C           3. The issue involved in these appeals is short. Few facts, however,
      need mention to appreciate the issue, which is the subject matter of
      these appeals.
             4. The appellants are the defendants and the respondent is the
      plaintiff in the civil suit out of which these appeals arise.
D            5. The issue arises out of eviction suit, which resulted in passing
      of a compromise decree followed by its execution. So far as the present
      appeals are concerned, they arise out of an order passed in the execution
      proceedings.
             6. The Respondent(plaintiff) filed a suit (No.872/2007) in the Court
      of Small Causes at Mumbai against the appellants(defendants) for their
E
      eviction from the suit premises. The eviction was claimed inter alia on
      the ground of unauthorized user of the suit premises by the appellants
      (defendants) which, according to the respondent (plaintiff), amounted to
      the change of user under the provision of Section 16(1)(n) of the
      Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the
F     Act”). It is not necessary to set out the facts in the pleadings of the
      parties.
            7. During the pendency of the suit, the parties, i.e., the appellants
      and respondent, compromised the matter and accordingly filed their
      consent terms on which the compromise was arrived at between them.
G           8. The Court accordingly, by order dated 05.09.2007, pronounced
      the judgment and disposed of the suit in accordance with the consent
      terms. In terms of the compromise, the defendants (appellants) were to
      handover the vacant possession of the suit premises to the plaintiff
      (respondent) on or before 31.01.2009 and the defendants (appellants)
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  HIYA ASSOCIATES & ORS. v. NAKSHATRA PROPERTIES                               139
           [ABHAY MANOHAR SAPRE, J.]

were also liable to pay Rs.5000/- per day by way of mesne profits if           A
they fail to handover possession of the suit premises after 31.01.2009.
      9. Since the defendants (appellants) failed to handover the vacant
possession of the suit premises to the plaintiff (respondent) in terms of
the compromise, the plaintiff (respondent) filed an execution application
(No.31/2013) for execution of the consent decree dated 05.09.2007 and          B
prayed therein for issuance of possession warrant in respect of the suit
premises against the defendants (appellants).
        10. The defendants (appellants) filed their reply and raised several
objections on facts and law including maintainability of the execution
application. By order dated 28.10.2015, the Executing Court overruled          C
all the objections on merits and, in consequence, held that the execution
application filed by the plaintiff (respondent) is maintainable in law and
the consent decree is, therefore, executable against the defendants
(appellants). The Executing Court, therefore, directed issuance of warrant
of possession against the defendants (appellants) in relation to the suit
premises.                                                                      D

       11. The defendants (appellants) felt aggrieved and filed revision
before the Small Causes Court at Mumbai. The Revisionary Court, by
order dated 26.09.2016, allowed the revision, set aside the order dated
28.10.2015 passed by the Executing Court and remanded the case to
the Executing Court for deciding the objection raised by the                   E
defendants(appellants) against the execution application afresh on merits.
One of the reasons to remand the case to the Executing Court was that
the Revisionary Court allowed the defendants (appellants) to file additional
documents (Ex.22), which they had filed for the first time in the revision
petition.                                                                      F
       12. The plaintiff (respondent) felt aggrieved by the order of the
Revisionary Court and filed writ petition under Article 227 of the
Constitution of India in the High Court of Bombay. By impugned order,
the High Court allowed the writ petition, set aside the order of the
Revisionary Court and restored the order of the Executing Court, which
                                                                               G
gives rise to filing of the present appeals by way of special leave by the
defendants (appellants) in this Court.
     13. Heard Mr. D.N. Goburdhan, learned counsel for the appellants
and Mr. Gourab Banerji, learned senior counsel for the respondent.
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140             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A            14. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we are inclined to allow the appeals in part and
      while setting aside the impugned order as also the order passed by the
      Revisionary Court remand the case to the Revisionary Court for deciding
      the defendants’ (appellants) revision afresh on merits in accordance with
      law.
B
            15. The reasons to remand the case to the Revisionary Court are
      more than one as mentioned hereinbelow.

             16. In our opinion, the Revisionary Court committed two errors.
      In the first place, it should not have remanded the case to the Executing
C     Court for its fresh consideration on merits but it should have decided the
      revision on merits in accordance with law.

             17. It is for the reason that the Executing Court had already decided
      all objections raised by the defendants (appellants) on merits and had
      found no merit therein. The Revisionary Court was, therefore, under
D
      legal obligation to decide the legality and correctness of the findings
      recorded by the Executing Court on its merits in its revisionary jurisdiction
      instead of remanding the case to the Executing Court. Indeed, we do
      not find any justifiable reason, which could justify remand having regard
      to the nature of the objections raised by the defendants (appellants)
E     before the Executing Court. In other words, this was not the case, which
      needed remand to the Executing Court for its fresh decision on merits.

             18. In our opinion, the remand of a case to the Subordinate Court
      is considered necessary when the Superior Court while exercising its
      appellate or revisionary jurisdiction finds that the Subordinate Court has
F     failed to decide some material issues arising in the case or there is some
      procedural lacuna noticed in the trial, which has adversely affected the
      rights of the parties while prosecuting the suit/proceedings or when some
      additional evidence is considered necessary to decide the rights of the
      parties which was not before the Trial Court etc. (See Order 41 Rules
G     23, 23-A, 24 and 25 of the Code of Civil Procedure, 1908). Such was
      not the case here.

            19. Second error committed by the Revisionary Court was that it
      allowed the defendants (revision petitioners) to file additional documents
      (Ex.22) to prove their case.
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  HIYA ASSOCIATES & ORS. v. NAKSHATRA PROPERTIES                               141
           [ABHAY MANOHAR SAPRE, J.]

       20. In our opinion, the documents sought to be filed by the             A
defendants (revision petitioners) were neither relevant and nor material
for deciding the legality and correctness of the order passed by the
Executing Court. The legality and correctness of the order impugned in
the revision could be decided one way or the other without the aid of any
additional document but on the basis of material already on record keeping
                                                                               B
in view the law laid down by this Court in several decided cases on the
issue in question. Indeed, if the Executing Court could decide the issue
finally at its level, the Revisionary Court too could do the same at its
level.
       21. In our view, the issue in question was not required to be decided
under Order 21 Rule 97 of the Code of Civil Procedure but it should            C
have been so decided keeping in view the law laid down by this Court in
the case of Roshanlal vs. Madan Lal (AIR 1975 SC 2130) which lays
down the principle as to how the issue of such a nature needs to be dealt
with by the Executing Court when it is raised by the judgment debtor in
execution proceedings.                                                         D
       22. It is due to these two aforementioned reasons, we are of the
considered view that the order passed by the Revisionary Court is not
legally sustainable.
       23. So far as the impugned order passed by the High Court is
concerned, in our view, the High Court having noticed the aforementioned       E
errors in the order of the Revisionary Court should have remanded the
case to the Revisionary Court for deciding the revision afresh on merits
in accordance with law. Instead, the High Court itself went into the
question on merits and upheld the order of the Executing Court. This, in
our opinion, the High Court should not have done and left it for the
Revisionary Court to do.                                                       F
       24. By these observations, we do not mean that the High Court
had no jurisdiction to decide the issue but having regard to the nature of
objections, remedy available to the parties to have finding on the question
arising in the case one way or the other from the Revisionary Court and
to put the record straight, it was not called for in this case.                G
       25. It is for these reasons, we consider it proper to set aside the
impugned order and also the order of the Revisionary Court and remand
the case to the Revisionary Court to decide the defendants’ (appellants’)
revision afresh on merits in accordance with law.
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142                SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A           26. The Revisionary Court would decide the legality and
      correctness of the order passed by the Executing Court dated 28.10.2015
      on merits keeping in view the law laid down by this Court in Roshanlal
      (supra) and other cases on the subject.
             27. While deciding the revision, the Revisionary Court would not
B     be influenced by the observations contained in impugned order and also
      of this Court order because we have not applied our mind to the merits
      of the case having formed an opinion to remand the case to the
      Revisionary Court.
            28. The appeals thus succeed and are accordingly allowed in part.
C     Impugned order and the order of the Revisionary Court are set aside
      and the case is remanded to the Revisionary Court to decide the
      defendants’ (appellants’) revision (No.333/2015) afresh on its merits in
      accordance with law.
             29. Since the matter is an old one, we direct the Revisionary Court
D     to decide the revision within six months as an outer limit.


      Nidhi Jain                                             Appeals partly allowed.



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