IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.569 of 2008 1. MOSST.ASHA DEVI, wife of late Mahendra Prasad 2. Pancham Kumar, son of late Mahendra Prasad Both are resident of village- Nisarpura, P.S.- Naubatpur, District- Patna. ---- Defendants/Respondents No. 1(C)&1(E)/Appellants Versus 1. SURESH PRASAD, son of Hari Sah 2. Brij Nandan Prasad, son of Hari Sah Both are resident of village- Nisarpura, P.S.- Naubatpur, District- Patna. ---- Plaintiff/Appellants/Respondents Ist Set. 3. Mosst. Sarawati Devi, wife of Late Radhe Mahto 4. Chandra Shekhar Prasad, son of Late Radhe Mahto 5. Rabindra Bharti, son of Late Radhe Mahto 6. Lav Kush Kumar, son of Late Mahendra Prasad 7. Hari Kishore Mahto, son of Late Chaubey Mahto All are resident of village- Nisarpura, P.S.- Naubatpur, District- Patna ---- Defendants/Respondents No. 1,1(A),1(B),(d)&2/Respondents IInd Set. For the appellants :- Mr. Jitendra Kishore Verma, Advocate Mr. Tuhin Shankar, Advocate Mr. A.D. Krishna, Advocate For the Respondents:- Mr. Ajay Prasad, Advocate ----------- 6 9.4.2009 With the consent of the parties, this Miscellaneous Appeal is being disposed of at this stage. The appeal has been filed challenging the order of the 3rd Additional District & Sessions Judge, Patna dated 4th June, 2008 by which he has remanded the case to the Trial Court to be considered on two grounds. The plaintiff/appellants/respondents Ist set filed a suit for eviction claiming that the defendants/respondents No. 1(c) and 1(E) 2 are the tenants of a shop constructed on plot no. 309. The defendants/appellants denied the relationship of landlord and tenant and claimed that they had exchanged plot no. 309 with plot no. 164 belonging to the plaintiff as the plaintiff required additional land for construction which he was making on plot no. 165. The Trial Court while hearing the case has framed the issue whether there was a relationship of landlord and tenant between the parties. While considering this aspect, the Trial Court has considered that the lease is on the basis of an unregistered document and as such has considered the oral evidence of the parties while addressing the issue of relationship of landlord and tenant. After considering the oral evidence the Trial court found that the plaintiff has failed to prove the relationship of landlord and tenant. Thereafter the Trial court has come to a conclusion that the title of the parties cannot be decided in the present suit unless the advalorem Court fee was paid by the plaintiff and as such advised the plaintiff to file a fresh suit. 3 The plaintiff being aggrieved by the order of the Trial Court went in appeal. The Appellate Court after discussing the cases of the parties has come to a finding that the learned Trial Court ought to have considered the provisions of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘B.B.C. Act’) before passing the judgment. I find that Section 11 of B.B.C. Act refers to the grounds of eviction. These grounds of eviction have to be proved either by oral or by documentary evidence. The Appellate Court was hearing a First Appeal and could have very well gone to the evidence to find out whether any of the conditions laid down under Section 11 of the B.B.C. had been violated in order to come to a finding with relation to grounds of eviction. I may observe before applying Section 11 in a particular case the first step that has to be considered is whether there is a relationship of landlord and tenant and once the Court has come to a finding that there is a relationship of landlord and tenant, then the 4 Court would consider that adequate grounds have been made out for passing a decree of eviction. Section 11 of the B.B.C. Act will only apply when there is a relationship of landlord and tenant. Therefore, this observation of the Appellate Court is obviously incorrect and the Appellate Court ought to have applied its mind and considered whether the grounds for holding that there is no relationship of landlord and tenant by the Trial court was correct or not and passed an order accordingly. The second reason for remanding this case is that according to the Appellate Court the Trial Court ought to have considered the report of the Pleader Commissioner. The report of the Pleader Commissioner was available to the Appellate Court for its perusal and the Appellate Court ought to have decided whether the report of the Pleader Commissioner was relevant for deciding the issues in this case instead remanding the matter to the Trial Court. Learned counsel appearing on behalf of the appellant has referred to the case of Awadhesh Kr. Mishra & Ors. Vs. Sona Dev & Ors. reported in 2003(4)PLJR 810. The Court on 5 similar facts has held that “it is the cardinal principle of remand that whenever it is found for something which is vital had not been decided by the Trial Court and the same cannot be decided by the Appellate Court because of lack of proper materials on record, then only remand can be made.” In this appeal there is sufficient material before the Appellate Court and no fresh material is required for the purposes of deciding whether there is relationship of landlord and tenant or incidentally deciding the title of the party for the purpose of the suit. In the result I set aside the impugned order and remand the matter back to the Appellate Court to consider all aspects of the case which he may think deem fit and proper and pass a reasoned order disposing of the appeal. This Miscellaneous Appeal is allowed. No order as to costs. Sanjay (Sheema Ali Khan, J.)