1 IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.517 of 2004 SANJAY KUMAR GUPT S/O Ajay Kumar Gupta, R/O Mohalla D.B. Road, Saharsa, P.S and District Saharsa ……..Appellant. Versus 1.SANJAY PRASAD SINGH, S/O Late Samrendra Singh 2.MOSTT. KAILASH DEVI, W/O Late samrendra Singh 3.SUMMAN SINGH, S/O Late Samrendra Singh 4.SMT. INDU SINGH 5.SMT. MINA DEVI, Both D/O Late Samrendra Singh. All R/O D.B.Road, Saharsa, Ward No. 3/5 under Saharsa Municipality, P.S. and District Saharsa ………Respondents. For the Appellant : Abhay Kumar, Advocate For the Respondents: Lalan Kr. Singh, Advocate 07. 22.07.2010 Heard learned counsel for the appellant and the respondents. This appeal has been preferred against judgment dated 25th Semptember, 2004 passed by IIIrd Additional District Judge, Saharsa in Title Appeal No. 22 of 1999 by which the lower appellate court remitted the entire case to the lower court for a fresh decision after framing issue of partial eviction and providing opportunity to the parties to adduce evidence, if any and also to consider some documents left to be discussed on the point of defaulter of the defendant-respondent. It is submitted on behalf of the plaintiff-appellant that the suit was filed for eviction on the ground of personal necessity as well as defaulter. It was contested by defendant-respondent by filing written statement. Trial court after considering all evidence decreed the suit giving rise to appeal. The issues framed by the 2 appellate court making ground for remand are either redundant or will cover under issues framed and discussion made above by the trial court, remand was not at all necessary. The learned counsel for the respondents tried to support impugned judgment on grounds mentioned therein. As it appears from the judgments of both the courts and submissions of Bar, that plaintiff-appellant had filed the suit against defendant, seeking eviction on the ground of personal necessity as well as defaulter in payment of rent. Defendant by filing written statement questioned the relationship of land-lord and tenant besides asserted payment of entire rent to the real land- lord. The trial court on basis of materials available, re-casted the issues framed earlier and in total eight following issues were framed and decided by the trial court :- (i) Is the suit maintainable? (ii) Has the plaintiff got any cause of action? (iii) Has the plaintiff entitled for decree of eviction on the basis of defaulter and recovery of rent of the suit premises at the rate of Rs. 770/- per month? (iv) Has the plaintiff got personal necessities of the suit premises? (v) Is the defendant habitual defaulter? (vi) To what relief or reliefs entitled for? 3 (vii) Whether the suit premises is not fallen in the share of plaintiff and the decree of suit no. 40/85 is forged and fabricated? (viii) Had the plaintiff’s family taken advance Rs. Ten Thousand (10,000/-) from defendant which is left to be adjusted? And on the discussion arrived at the conclusion that plaintiff-appellant is not only in bona fide requirement of the suit premises, but the defendant-respondent has committed default in making payment of rents, accordingly decreed the suit. The lower appellate court found two points for determination as :- (i) Is the defendants defaulted in payment of rent to the plaintiff? (ii) Is the suit shop bonofidely required by the plaintiff for personal necessity? While discussing point no. 1 in Para 13 at page 05 has stated that Exhibits G and B series i.e. postal receipts as well as some receipts granted by the plaintiff and his ancestors against payment of rent have not been considered and discussed by the lower appellate court and further while dealing point no. 2, he arrived at this conclusion that issue of partial eviction was not framed nor there is any finding. It is contended by learned counsel for the appellant that no doubt there is no formal discussion of two sets of documents 4 Exhibits G and B series, but they were not at all required in view of discussion and finding with respect to Exhibits E and F series, which were hold by the trial court as fabricated. So far issue of partial eviction is concerned it too was not at all required considering the small space of the suit premises and none assertion of either of the side about such issue and their satisfaction on partial eviction. Exhibits G and B series are the documents which could have very well been considered by the lower appellate court to arrive at any conclusion, if at all they had any impact other than the findings of the court below on basis of connected documents Exhibits E and F series for which it does not appears from the order of the lower appellate court that any that any further evidence was required. The postal receipts were marked as public document and Exhibits E and F series were also properly exhibited taking into evidence for consideration. So far issue of partial eviction is concerned, no doubt it is essential to be framed and decided and it is the duty of the court even if there is no pleading or assertion from either of the side on this point, but only in case claim of eviction is based and decided on personal necessity alone, but in case of composite claim on other grounds available for eviction question of partial eviction looses its importance. No doubt, if such issue is framed along with issue relating to bonafide requirement or personal necessity of landlord with respect to suit premises, in shape of its extent to 5 satisfy such requirement. It is always appreciated specially when at least other grounds for eviction are negatived but of personal necessity. In the instant case plaintiff has come out with both the pleas for eviction, personal necessity as well as defaulter. The trial court has granted the decree on both the counts, so it was not at all required for the lower appellate to remand the case to frame any specific issue on the point of partial eviction and decide all issues afresh. Framing of such issue would have been mandatory had the trial court arrived at the conclusion that though defendant- respondent is not defaulter or liable for eviction on such ground, but only liable for eviction on the ground of personal necessity, then it was incumbent upon the court to frame particular issue on the point of partial eviction and provide opportunity to the parties to adduce evidence, if so desire. But that can be done even at appellate stage in appropriate case or the appellate court in exercise of powers as contemplated under Order 41 Rule 25 of the Civil Procedure Code pass proper order, the relevant rule 25 reads as such: 25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from- Where the Court from whose decree the 6 appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore (within such time as may be fixed by the Appellate Court or extended by it from time to time). The decision of Apex Court in a case Krishna Murari Prasad vs. Mitar Singh reported in 1993(1) SCC 439 is not applicable in this case since before the Apex Court case was based only on personal necessity under Section 11 (1) (C) of the Bihar 7 Buildings Lease Rent and Eviction Control Act, which is not here as stated above. But before exercise of such power the appellate court is required to preferably decide the appeal in view of Order 41 Rule 24 C.P.C., which reads as such:- 24. Where evidence on record sufficient, Appellate Court may determine case finally – Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. The question of total remand arises as exceptional cases only when it justifies other requirements and evidences, if at all appellate court is not in a position to procure. In the instant appeal as stated above none of the requirements is fulfilled. The document which were, in opinion of 8 lower appellate court were not discussed by the trial court, need no further evidence and it could have been considered by the lower appellate court itself and so far issue of partial eviction is concerned as stated above under facts and circumstances of the case, if felt necessary in appropriate case, the appellate court may itself decide and pass appropriate order accordingly. Thus, I find no reason to affirm the finding of the lower appellate court, accordingly it is set-aside, appeal is stands allowed and matter is remitted before the lower appellate court to decide the appeal on its own merit. It is further directed that court below shall expeditiously and preferably disposed of the appeal within six months from the date of communication of order and receipt of the records. Office is directed to transmit the record to the court below at once. Praveen/ ( Akhilesh Chandra, J.)