GOVIND PRASAD SINHA Vs. BAIJNATH SAH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 7.3.98 passed by the 4th Additional District Judge, Dumka, in Title Appeal No.7 of 1996 whereby and whereunder he has affirmed the judgment and decree passed by the Subordinate Judge lst Court, Dumka, in Title Eviction No. 18 of 1989 and the aforesaid suit was filed by the plaintiff respondent against the defendant appellant on two grounds, namely, defaulter and also on the ground of bonafide personal necessity. The relationship between the parties are almost admitted but on the point of defaulter and on personal necessity the defendant opposed by giving various facts. The original Court, after, considering both the documentary and oral evidence came to the finding that the plaintiff appellant could not be able to prove his bonafide regarding his personal necessity. On the point of defaulter it was held that the defendant was defaulter and hence an eviction decree was passed on the ground of defaulter. Against that judgment and decree an appeal was preferred by the tenant -appellant although the issue of personal necessity against the appellant had gone against the plaintiff -respondent, he did not prefer any cross objection. The appellate Court by a cryptic judgment held that the decree passed by the original Court on the ground of defaulter was right and just and hence affirmed the same. The discussion portion in the judgment is at paragraph

(2.) WHILE admitting the second appeal the substantial question of law was framed in the following manner: ''

(3.) THE second appellate Court cannot enter into the facts until and unless the same is being scrutinised by the first appellate Court in its proper perspective and it cannot act as a first appellate Court. In this connection a reference may be made to a reported judgment of this Court in 1951 Patna Page 502. As the appellate Raj Kumar Ram Versus State Of Bihar Court 'sjudgment is devoid of the provisions of Order 41 Rule 31 of the Code of Civil Procedure and all norms as stated above, the said judgment is hereby set aside and the appeal is sent back to the first appellate Court to pass a proper judgment in the light of the observations made above after giving an opportunity of fresh hearing to both the parties. The suit, being an Eviction suit, the first appellate Court is hereby directed to dispose of the appeal within three months next from the date of receipt of the order of this Court.