JUDGMENT Shitla Prasad Srivastava, J.
1. The petitioner by means of present writ petition has challenged the order dated 1st December, 1997, passed by the respondent No. 1 in Civil Rev. No. 431 of 1994 which has been filed as Annexure-8 to the writ petition.
2. The brief facts giving rise to the present writ petition are that respondent Nos. 2, 3 and 4 filed a suit for ejectment of the petitioner from the premises in suit bearing Municipal No. 16/13, Chauk, Allahabad, stating therein that the petitioner was a tenant on payment of Rs. 69.50 per month as rent and there was arrears of rent since 1st May, 1979, therefore, the suit was filed after giving notice terminating the tenancy, etc.
3. The petitioner contested the suit on the ground that the property was put to auction in arrears of income-tax by the Income Tax Department and the petitioner is tenant on behalf of the Executive Engineer C.P.W.D. He has deposited the rent for a period between 1st September, 1979 to 30th November, 1983. The rent for the month of May, June, July and August, 1979 was not accepted even sent through the money order, therefore, the petitioner is not a defaulter. The plea of deposit of this entire rent under Section 20 (4) of the U. P. Act No. XIII of 1972 was also taken. The suit was dismissed on 14th March, 1984. A revision was filed by the respondents before the revisional court. An application was filed by the respondents on 22nd December, 1989 for the first time to strike off the defence under Order XV, Rule 5 of the Civil Procedure Code. The application was contested by the petitioner that this application is not maintainable before the Revisional Authority. An application was also filed by the petitioner offering a sum of Rs. 4.378.50 towards rent from October, 1984 to December, 1989. The revisional court allowed the application and remanded the case to the Prescribed Authority to examine the Issue about the applicability or non-applicability under Order XV, Rule 5 of the C.P.C. This order is under challenge In this writ petition.
4. Shri Rakesh Bahadur, Advocate has appeared on behalf of the contesting respondent and has made a statement that he is ready to argue the case without filing any counter-affidavit. The matter was heard finally.
5. Learned counsel for the petitioner has urged that the revisional court has no jurisdiction to entertain the application which was based on the mixed question of law and facts and it was never pleaded before the trial court or even in the memo of revision before the revisional court. His further contention is that without reversing the finding recorded by the trial court, dismissing the suit, the revisional court had no jurisdiction to remand the case to the Prescribed Authority In the same context. He has urged that it was incumbent on the part of the revisional court to have first adverted Itself as to whether even prima facie case was made out for Invoking the Order XV, Rule 5 of the Civil Procedure Code at the belated stage.
6. Sri Rakesh Bahadur learned counsel for the contesting respondent, has urged that the revision is the continuation of the original proceedings, i.e., the suit and application for striking off defence can be filed before the revisional court also. His further contention is that the revisional court has considered the case of the parties as the controversy was with regard to the compliance of Order XV, Rule 5, C.P.C. and as to what was the first date of hearing on which the applicability of Order XV. Rule 5, C.P.C. was considered, which could easily be seen by the Prescribed Authority and if the defence is struck off by the Prescribed Authority, the aggrieved party has a right to prefer a revision, therefore, with a view to avoid these complications the matter was rightly sent back to the Prescribed Authority/Judge Small Causes Court. His further contention is that under Order XLI. Rule 23 of the C.P.C., the appellate court or the revisional court can only remand the case when it has set aside the order passed by the Court below. His contention is that from the judgment of the revisional court. It is apparent that he has set aside the judgment and decree, therefore, there was no illegality in passing the impugned order. Learned counsel for the petitioner in support of his contention has submitted that when there was no order passed by the Prescribed Authority under Order XV, Rule 5 of the C.P.C. and the finding given on Section 20 (4) was not challenged in the revision and the finding of fact given by the Judge Small Causes Court has not been challenged in the revision, this finding of fact, unless set aside by giving reasons by the revisional authority, could not have been set aside by the revisional court in the manner as it has been done in the present case. His further contention is that the finding of fact was recorded by the trial court to the effect that the defendant is clearly entitled to the benefit of Section 20 (4) of the U. P. Act No. XIII of 1972 and was liable to be relieved from the consequences of default in payment of rent. This finding has not been set aside by the revisional court, therefore, the order Impugned is against the law.
7. Learned counsel for the petitioner has submitted that Order XLI, Rule 23 of the Civil Procedure Code gives power to the appellate court to remand the case to the subordinate Judge. According to the learned counsel for the petitioner, if the suit was decided upon a preliminary point and the decree is reversed in the appeal, the appellate court may if it thinks fit by order remand the case and may further direct what Issue or issues shall be tried in the case so remanded. His contention is that Order XLI, Rule 23A deals with the provisions where the Court from whose decree an appeal is preferred has disposed of the case, otherwise than on a preliminary point and decree is reversed in the appeal and any retrial is considered necessary, the appellate court shall have the same powers as has been given to it under Rule 23. His contention is that in any case, the appellate court has to reverse the decree and unless the decree is reversed, the Court cannot remand the case. His contention is that on the finding of fact recorded by the trial court, the power of remand exercised by the revisional authority is not in accordance with law. He has placed reliance on a case in Purapabutchi Rama Rao v. Purapa Vimalakumari. AIR 1969 AP 216. He has placed on paragraph 16 of the judgment aforesaid, wherein it was held that:
"The conditions prescribed for the exercise of the power of remand under Rule 23, Order XLI, Civil Procedure Code are mandatory but not a mere formality. To arrive at a finding on the material on record that the judgment of the trial court is erroneous and is liable to be reversed or set aside, is a condition precedent for the appellate court to clutch at the jurisdiction to pass an order of remand under Order XLI, Rule 23, Civil Procedure Code."
8. His contention is that as the trial court's judgment has not been set aside on every issue, rather U has been set aside only for the purpose of sending the case to the trial court for consideration of the case under Order XV, Rule 5. The order is against the law. He has placed reliance on a case in Setu Madhavrao Vyankatapatulu v. Food Corporation of India. AIR 1985 Guj 27. In this case, the trial court after recording the evidence and after coming to the conclusion that the plaintiff has established his right of his easement over the road decreed the suit and granted permanent Injunction and before the appeal filed by the defendant was heard an application for amendment of the written statement to the effect that the original owner of the suit land should be impleaded as a party co-defendant, otherwise the suit would be bad for nonjoinder of parties. The decree was set aside by the appellate court and the matter was remanded back to the trial court to consider the amendment application and decide the Issue, it was held that the appellate court committed serious error of law and procedure in remanding the suit without deciding the amendment application on merits and without considering the merits of the case. He has further placed reliance on State oj Tamil Nadu v. S. Kumaraswami and others, AIR 1977 SC 2026, in which it was held that if the finding of the trial court was brushed aside by the High Court without any reason without any appreciation of documents and without any appreciation of the contentions of the parties the judgment was a perfunctory judgment and the High Court failed to exercise the duties as appellate court. His contention is that in the instant case also the judgment was set aside without discussing the evidence and the finding given by the trial court in favour of the petitioner.
9. In reply, the learned counsel for the respondent has urged that the revisional court has rightly passed the order because it was satisfied that the application under Order XV, Rule 5, C.P.C. should be considered by the trial court only.
10. After hearing the learned counsel for the parties and after going through the judgment and other documents available on record, 1 am of the view that the judgment and order passed by the revlsional court dated 1st December, 1997 must be set aside and the matter must be sent back to it for restoring the revision to its original number and decide it afresh in accordance with law. The reasons for setting aside the impugned judgment is that it is true that the revision is continuation of the suit, therefore, the revisional court has the same power as of a appellate court for deciding the case exercising the power under Order XLI, Rule 23, C.P.C. Order XLI, Rule 23 is quoted herein below :
Order XLI, Rule 23, C.P.C.
"Remand of the case by the appellate court.--Where the Court from whose the decree and 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 and may further direct that issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose the decree and appeal is preferred with a direction to re-admit the suit on it s original number in the register of civil suit and proceed to determine the suit : and evidence if any, recorded during the original suit shall be subject to all just exceptions put evidence, during the trial after remand."
Rule 23A is quoted herein below :
"Remand in any other case, where the Court from whose decree an appeal is preferred has disposed of the case, otherwise then on the preliminary point and decree is reversed and retrial is considered necessary, the appellate court shall have the same power as it has under Rule 23."
11. A bare perusal of these two provisions would show that it has used the word decree which if reversed by the appellate court, the appellate court may exercise power of remand and either direct the subordinate court to decide the issue or issues or retrial if considered necessary. The decree has been defined under Section 2 of the Civil Procedure Code which is as under :
"Section 2(2). The decree means the formal expression of an adjudication which so far as regards the Courts expressing it conclusively determines the right of the parties, with regard to all or any of the matter in controversy in the suit and may either preliminary or final it shall be deemed to include the rejection of the plaint and determination of any question within Section 144 but shall not Include (A) any adjudication from which an appeal lies or appeal from an order or (B) any order or dismissal in default."
12. The provisions under Order XLI, Rule 23A say that if the decree is reversed so keeping in view the definition of word decree, I am of the view that if the decree is to be reversed meaning thereby any and every finding or on all or any of the matters in controversy in the suit is to be reversed but in the Instant case, the revisional court has only set aside the judgment and decree without making any observation regarding the finding given by the trial court in favour of the petitioner on the question of fact and law under Section 20(4) of the C.P.C., therefore, the judgment cannot be said to be the judgment in accordance with law.
13. I accordingly, allow the writ petition, set aside the judgment passed by the revisional court dated 1st December, 1997 in Civil Revision No. 431 of 1984 and remand the case to the revisional court to decide it afresh in accordance with law.
14. There will be no orders as to costs.