- (1.) HEARD learned counsel for the parties.
(2.) THE appellants are aggrieved against the order dated 1st February, 2012 passed in W.P.(C) No.5685 of 2006, whereby the appellants' writ petition has been dismissed on the ground that in the petition the appellants challenged the order of remand and subsequent to that, during pendency of the writ petition, final order was passed by the Sub Divisional Officer after remand. THE learned Single Judge held that the appellants will be free to challenge the order of the Sub Divisional Officer, which has been passed after the order of remand. The learned counsel for the appellants submitted that the remand order dated 24th June, 2006 passed by the appellate court was absolutely illegal and, in fact, in the eye of law, it was not even an order and, therefore, the learned Single Judge has committed serious error of law by ignoring this fact that when order of remand itself was not an order in the eye of law then any consequential order passed in consequence to the remand order cannot be allowed to stand. It is submitted that the petitioners' preferred writ petition in the year 2006 and the same has been dismissed in the year 2012 on the above ground, which also cannot be justified. Learned counsel for the respondents vehemently submitted that the respondents were paying rent before these proceeding but thereafter they are paying rent under compulsion and because of the orders passed by the authorities below. It is submitted that the order of remand was revisable under Section 26 of the Bihar Buildings (Lease, Rent And Eviction) Control Act, 1982. It is submitted that, therefore, the writ petition was not maintainable, as the petitioners without availing the alternative remedy, approached this Court by filing the writ petition. It is also submitted that after the remand order, final order has already been passed. The learned counsel for the respondents also tried to submit on the merit of the case.
(3.) WE have considered the submissions of the learned counsel for the parties and perused the remand order, which is as under : " Case is remanded to S.D.O for fresh assessment" This is the total order. It appears that appellate authority was not aware of the law that how in appeal order can be set aside and even was not aware about the law under what circumstances and for what reason the remand order can be passed. The appellate court also failed to take note of the fact that appellate court also have all the powers of the trial court and if there is all material before the appellate court and evidence, then the appellate court is bound to decide the matter on all the issues. If some evidence is allowed to be produced to any of the party or for the other lawful reasons, the matter is required to be sent back to the trial court and then those reasons are required to be recorded. Interfering in the lawful order by the appellate court without assigning any reason is no order in;