IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.580 of 2008 Ajay Kumar, son of Sri Laxmi Ram, resident of Mohalla- Main Road, Hilsa, P.O.-Hilsa, Police Station-Hilsa, District-Nalanda. ..Plaintiff…Respondent/Appellant Versus 1. Ajit Kumar, son of Ram Lakhan Sinha, resident of Village- Makundan Bigha, Police Station-Dhardhari, Sub-Division Hilsa, District-Nalanda, at present tenant M/S Sri Ram Kirana General Store, Fatuha Islampur Main Road, Hilsa Bazar, Police Station-Hilsa, District-Nalanda. 2. Arun Kumar, son of Sri Ram Lakhan Sinha. 3. Ram Lakhan Sinha, son of Sarjug Sinha Both 2 and 3 are resident of Village- Makundan Bigha, Police Station-Dhardhari, P.O. Bhatagar, District-Nalanda at present tenant M/S Sri Ram Kirana and General Store, Fatuha Islampur Main Road, Hilsa Bazar, Police Station-Hilsa, District-Nalanda. ..Defendants…Appellants/Respondents. ----------- 8. 10.11.2010. This Miscellaneous Appeal is directed against the judgment and order dated 20. 06. 2008 passed by Sri Manoj Kumar Verma, Ist Addl. District & Sessions Judge, Hilsa (Nalanda) in Title (Eviction) Appeal No. 09 of 2006/06 of 2007 by which he has set aside the judgment and decree of the trial court passed in Eviction Suit No. 1/03 and remanded the suit to the trial court for consideration a fresh and further observed that it will be open to the parties to lead the evidence restricted to the point of partial eviction. 2. From perusal of the record, it appears that suit has been filed for eviction on the ground for personal necessity and default. The defendant appeared and contested the suit. After hearing the 2 parties altogether seven issued were framed. The trial court gave its finding on all the issues. The trial court held that defendant is the tenant of the plaintiff and there is relationship of landlord and tenant .The trial court decreed the suit for eviction holding the plaintiff has been able to proof his bonafide requirement and hence ordered the plaintiff to give vacant possession of the premises to the plaintiff. 3. The defendant challenged the judgment and decree of the Munsif in appeal before the District Judge and took the plea that trial court has not appreciated the word reasonable and in good faith" and asserted that the plaintiff wants to evict the defendant so that plaintiff may be able to let out the suit premises at higher rent and further asserted that there is no finding on question whether partial eviction shall meet the requirement of plaintiff and in a case sent for eviction on ground of personal necessity it is mandatory for trial court to consider this aspect before passing a decree for eviction relied upon the decision reported in 2008 (2) B.B.C.J. V-112. 4. The learned lower appellate court after hearing set aside the judgment and decree of trial court merely on the ground that the trial court has not given any finding on partial eviction and remanded the case 3 to the lower court for fresh decision. 5. The plaintiff respondent appellant being aggrieved by order of remand passed by the lower appellate court has preferred this Miscellaneous Appeal. It has been contended by the appellant that lower appellate court did not go into the question whether finding recorded by the trial court on issues like relationship of landlord and tenant and issue like bonafide requirement set aside the entire judgment and decree on all issues and remand the matter for consideration without going into the finding recorded by trial court and giving a reason to reverse the finding is against the mandate of Order XLI Rule 23A of CPC. It has further been contended that suit premises is only 10'9" X 12' and taking into consideration this fact the lower appellate court could well have appreciated to consider that partial eviction may not have meet the requirement of plaintiff and has relied upon decision reported in 1993(1) PLJR 87 and 2007 (4) PLJR 98. 6. Learned counsel for the respondent however contended that Miscellaneous Appeal is not maintainable as appellate court has set aside the judgment and decree of the trial court and hence a Second Appeal is required to have been filed as Second Appeal is maintainable against the judgment and 4 decree of the first appellate court and further contended that a decree of eviction can not be passed without considering the point of partial eviction as whether partial eviction meet the requirement of plaintiff. 7. Hence on the respective submission of the parties the question for consideration whether the Miscellaneous Appeal is maintainable and further whether the impugned order of remand after setting aside the judgment and decree of the trial court is sustainable in eye of law. 8. However, the suit was filed for eviction of the suit premises on the ground of personal necessity and default in payment of rent. The suit was contested mainly on the ground of personal necessity. The judgment and decree of eviction was passed after considering the oral and documentary evidence. Against the said judgment and decree appeal was preferred before the District Judge. However, the appellate court set aside the judgment and decree without going into the merit of the finding recorded by trial court merely on the ground that trial court did not consider whether partial eviction meets the requirement of the landlord and remand the case for fresh decision. 9. However, on respective submission of the 5 party the first question for consideration is whether the Second Appeal or Miscellaneous Appeal shall lie. However, it has been contended by the learned counsel for the respondent that when the appeal has been dismissed and judgment and decree set aside then the Second Appeal shall lie. However, Second Appeal is provided under Section 100 of CPC against the judgment and decree passed in appeal. The decree is defined under Section 2(2) of CPC as an formal expression of an adjudication which so far as regards this court expressing it conclusively determine the rights of the parties with regard to all or any of matter in controversy in the suit. Hence decree is formal expression which conclusively decide the right of parties, however the impugned order setting aside the decree and remanding the case for trial adjudication and hence the right of the party has not been adjudicated by the first appellate court. Hence second appeal is not maintainable under Section 100 CPC and since it is an order by which the lower appellate court have ordered to remand the case after set aside the impugned order and hence it can well be inferred to cover under Order XLI Rule 23A and hence appellable under Order XLIII Rule 1 (IV) and hence Miscellaneous Appeal is maintainable. 6 10. However, the next question for consideration whether the order of remand after setting aside the judgment and decree is sustainable. However, order of remand by the lower appellate court in first appeal against the judgment and decree of trial court is guided on principle under Order XLI Rule 23 to 28. Order XLI Rule 23 provides that if the suit has been disposed of on preliminary point and decree is reversed in appeal, appellate court may remand the case to the trial court. Order XLI Rule 23 A provides that when the case disposed off otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the appellate court shall have the same power to remand as under Order XLI Rule 23. Order XLI Rule 24 provides that if there is sufficient evidence on record to enable the appellate court to pronounce the judgment, then appellate court after recasting the issues, if necessary, finally determine the suit. Order XLI Rule 25 provides that if the appellate court feels that any issue or issues have been left undermined by the trial court it may frame such issue which appear to the appellate court assailed to the right decision of the suit on merit and refer the same to the trial court for a finding keeping the appeal pending in its file and on receipt of the same as provided under 7 Order XLI Rule 26 proceed to dispose of the appeal and Order XLI Rule 27 provides that if the appellate court satisfy or feel that there is justification of receiving additional evidence as per condition under Order XLI Rule 27 then he may take additional evidence himself or direct the trial court to record the additional evidence and sent it to the appellate court for its consideration. 11. Hence applying this scheme of remand to the present case this Order XLI Rule 23A provides that when the trial court has disposed of the suit after framing all the issues and give finding on all issues then appellate court can remand if the decree is reverse in appeal and re-trial is considered necessary and hence the principle enshrine in Order XLI Rule 23A itself implies the appellate court to consider the finding recorded by the trial court and come to a conclusion that finding recorded by the trial court is sustainable in law or not and if not sustainable then to give reason for disturbing the finding of the trial court if suffers from illegality and further to consider that re-trial is necessary. However, from the impugned order it is apparent that lower appellate court without going into the reasons of the findings recorded by the trial court and without appreciating the evidence or without apply his mind at all reverse the finding of trial court set aside 8 the judgment and decree of the trial court relying upon the decision reported in 2008 (2) B.B.C.J. page 113. 12. However, from impugned order it is apparent that the appellate court did not go into the question of finding of facts recorded by the trial court on the issue of personal necessity and relationship between the landlord and tenant and set aside the judgment and decree on all issues without giving reasons for the reversal. Hence order of remand does not cover either under Order XLI Rule 23 or 23A. The Order XLI Rule 23 is not applicable as case has not been decided on preliminary issue. So far Order XLI Rule 23A concern, it provides that the decree and judgment on trial court can be reversed only after considering its finding can be set aside. Hence the first appellate court has remanded the suit before he had reached the stage of judicially considering the entire evidence and fact and circumstance and hence the conclusion that judgment and decree under appeal be reversed is unsustainable. 13. However, if the first appellate court felt that any issue or issues having bearing of the case left undermined by the trial court it may have under Order XLI Rule 25 CPC frame issue and refer the same to the trial court for a finding after giving opportunity to the 9 party to lead evidence and the appellate court shall keeping the appeal pending in his file and trial court may have recorded the evidence and gives its finding and return the evidence with its finding to the appellate court. On receipt of the evidence with finding of trial court under Order XLI Rule 26 proceed to dispose of the appeal after considering the objection on finding recorded by trial court on the issue. However, the first appellate court without considering the reason of the finding recorded by trial court and without proceeding to refer the issue of partial evidence set aside the judgment and decree is against the mandate of Order XLI Rule 23 A and Rule 25 CPC. 14. However, the trial court has place reliance on the decision reported in 2008 B.B.C.J. page 113. However, in 2008 BBCJ Hon'ble High Court set aside the judgment and decree only to the extent of finding not recorded on partial eviction and hold that there is no finding regarding partial eviction and remanded the matter to the court below only for the limited purpose of considering and deciding the issue as to whether the bona fide personal necessity of the plaintiff would be satisfied by a partial eviction. The Hon'ble High Court did not set aside the entire judgment and decree on other issue and other finding 10 recorded by the trial court rather went into the finding recorded and considered those finding to hold that they are good finding hence in effect observed substantial compliance to Order XLI Rule 25 as it amounts to refer the case to the extent on the issue whether partial eviction to meet the requirement of the plaintiff and further in the present facts and circumstance of the case, the first appellate court in the impugned order set aside the entire judgment and decree of the trial court without even going into the finding recorded by court below on relationship of landlord and tenant and personal necessity considered on conclusion that finding recorded by trial court is suffer from infirmity or not and hence the impugned order is not sustainable and is hereby set aside and case is sent down to the lower appellate court to decide the appeal in accordance with law. Accordingly, the appeal is allowed. m.p. ( Gopal Prasad, J.)