Alam and Others vs Munni Khatoon and Others

Kishore Kumar Mandal, J.—The appeal filed by the plaintiff of the Title Suit Nos. 66/83/53/84 is directed against the judgment and decree dated 4.3.1986 passed by the 3rd Addl. District Judge, Bettiah in T.A. No. 30/20 of 1984-85 reversing on merit the judgment and decree dated 4.8.1984 passed by the Munsif, Bettiah in Title Suit No. 66/83/53/84. The plaintiff brought the title suit for eviction of the defendant-respondent on the ground of personal necessity as envisaged under Section 11(i)(c) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (Bihar Act 4 of 1983) stating therein that the suit property belonged to the plaintiff wherein the defendant was inducted as tenant. The suit property was now bona fidely required by the plaintiff and hence a decree of eviction be passed against the defendant. The defendant appeared and filed an application supported by affidavit seeking permission of the court to contest the suit. The trial court vide order dated 26.8.1983 permitted the defendant respondent to contest the suit. A time was granted for filing written statement which was filed on 14.9.1983 in which the defendant, inter alia, disputed the relationship of the landlord and tenant. The defendant also denied the plea of personal necessity as claimed by the plaintiff. The trial court permitted the parties to lead evidence and also framed issue(s). On a consideration of the evidence the trial court held that the plaintiff was the owner of the suit property whereas as the defendant was the tenant. In other words, relationship of landlord and tenant was established. The claim of bona fide need of the suit property was also upheld. Accordingly the suit was decreed. Aggrieved thereby the defendant filed a regular appeal before the lower appellate court. The plaintiff appeared and raised a preliminary objection with regard to maintainability of the appeal. The appellate court rejected the said plea of the plaintiff and considered the appeal on merit and reversed the judgment and decree passed by the trial court. Dissatisfied therewith the plaintiff has filed the present appeal which was admitted on 31.8.1987 and the following substantial question of law was framed:--

Whether an appeal lay before the District Judge and whether the judgment and decree passed by the court of appeal below is without jurisdiction?

Heard Mr. Ganpati Trivedi in support of the appeal. Nobody has appeared on behalf of the respondents.

While assailing the judgment under appeal, Mr. Trivedi drew attention of the Court to Section 14 of the Act. Relying on an order passed by a Single Judge of this Court in the case of Anil Kumar Tekriwal and Another Vs. Navin Chandra Singh, , it has been argued that the issue is now well settled that regular appeal in such circumstances would not lie. He has also placed reliance on a Division Bench judgment of this Court in the case of Shailendra Kumar Singh Vs. Kamla Singh and Others to support his contention.

The first appellate court in paragraph 12 of the judgment considered the issue under point No. 1. The objection of the plaintiff to the maintainability of the appeal was turned down enlisting the reason(s) assigned in the subsequent paragraph Nos. 13, 14 and 15 which for better appreciation are extracted hereinbelow:--

"13. Firstly Section 14 clause 8 provides that no appeal or second appeal shall lie against an order of recovery of possession of any premises made in accordance with procedure specified in the section. Admittedly, the learned lower court did not follow the procedure laid down in the section while deciding the suit. In the beginning the learned lower court complied Section 14 clause 4 vide order dated 26.8.83, but subsequently the procedure was completely given a goby. The learned lower court elaborately noted down the deposition of witnesses obtained signatures on them and also decided the question of title which were raised by the parties in respect of the holding in question. During the argument both parties conceded that the learned lower court did not follow the procedures laid down in the Section 14 of the B.B.C. Act. As the learned lower court did not strictly comply section 14 of the Act so Section 14 clause 8 cannot be invoked for holding that the present appeal is barred under the said section.

Secondly the scope of the suit was extremely limited because the only point needed that determination was whether the relationship of landlord and tenant existed between the parties. However, the learned lower court besides deciding the said point also decided the title of the parties in respect of the disputed house and land which will appear from part of Issue No. "Ga" and "Gha" ...... Both the issues were dealt by the learned lower court in detail and recorded findings against the appellant. In view of the fact that the learned lower court also dealt title of the parties in respect of the disputed land and house I am of the opinion that this appeal is perfectly maintainable.

Lastly Section 96 clause 4 of C.P.C. provides that on question of law an appeal can be preferred from a decree in any suit of the nature cognizable by court of small causes when the amount or value of the subject matter of the original suit does not exceed Rs. 3,000/-. The suit will appeal that there is no complete bar of appeal against S.D.O. order. In the present appeal law points relating to the interpretation of Sections 11(1)(c) and 14 of the B.B.C. Act is involved. For the foregoing reasons I hold that none of the arguments advanced by the respondent''s Advocate on this point are valid and accordingly rejected. Accordingly it is held that appeal is maintainable."

Having set out the reasonings this Court would now proceed to consider the submissions made on behalf of the appellant to challenge the legality/sustainability thereof.

From the skeleton of facts noticed hereinabove, it is not in dispute that the plaintiff brought the suit for eviction of the defendant only on the ground of personal necessity. The defendant appeared, filed an affidavit and sought permission of the court to contest the suit. Such permission/leave was granted by the court whereafter the written statement was filed in which the defendant also raised an issue of title in respect of the suit property. The trial court in view of the counter claim of the defendant, of course, proceeded to frame the issue(s) and permitting the parties to lead evidence both oral and documentary as if it was a regular suit and recorded findings on those issues in favour of the plaintiff. In sum and substance the trial court found that the plaintiff was able to prima facie demonstrate title/ownership over the suit property and he was in bona fide need of the suit premises. The suit was decreed. This Court in Anil Kumar Tekriwal (supra) faced with somewhat similar/identical question in paragraph 9 of the report took notice of the purpose of introducing the special procedure contemplated in Section 14 of the Act and further the fact that the trial court had made certain aberrations in the procedure adopted in trying the suit and in paragraph Nos. 11 and 12 of the report held as under:--

"11. This contention too, in my opinion, cannot be accepted. It is settled law that when used in a statute, the word "shall" sometime may be interpreted to mean "may" and sometime "may" is equivalent to "shall" depending upon the context. Framing of issues, in my opinion, cannot be said to be strictly prohibited for a court of Small Cause when it is proceeding to try a suit of a claim triable by it. Since normally simple and small claim are cognizance by Small Causes Court, necessity may not be there for framing of issues and only it has to be seen whether the claim made before the Small Cause Court can or cannot be allowed in whole or in part. But when in an eviction suit, if the defendant is allowed leave to contest on the grounds mentioned in the affidavit contemplated to be filed under the provision of Section 14(4) of the Act and while seeking leave to contest he raises several grounds including such as lack of title of the plaintiffs, who claim to be landlord, over the suit premises, separate issues may be raised and taken up separately while writing judgment for convenience and systematic discussions of the evidence relating to the particular issue. If the defendant has not been debarred under the Act from raising other issues, ever when a suit for eviction has been instituted on the ground of personal necessity or on the expiry of the term of the lease and if different pleas can be taken by him, I think it will be indeed necessary for convenience as well as for systematic discussion of the evidence to take up issue-wise consideration while writing judgment by the trial court, and then decision given thereon, it can be held that the procedure prescribed by Section 14(7) of the Act has not been followed. Framing or non-framing of the issues cannot, in my opinion, be decisive, not to say conclusive, factor for determining whether the practice and procedure of Small Cause Court as laid down in Section 14(7) of the Act has or has not been followed.

The fact that the evidence of the witnesses is recorded in narrative form (sentence-wise) and not only substance of the evidence (after witnesses are allowed to speak several sentences), in my opinion, would equally be immaterial for determining the question as to whether the procedure of Section 14(7) of the Act has been followed or not. I do not think that the law enjoins that the Court of Small Cause must record only substance of evidence of witnesses examined or cross-examined before the Court and never in narrative form."

The Court in Anil Kumar Tekriwal in order to reach such conclusion drew support from the Division Bench judgment of this Court in the case of Shailendra Kr. Singh (supra). In paragraph 7 of the said judgment similar issue/question before the Division Bench was raised and answered in the manner which supports the case of the plaintiff. In paragraph 7 of Shailendra Kumar Singh (supra) this Court held as under:--

"7. A question may arise, if the court illegally refuses to adopt special procedure and rejects prayer of a party for following the same, what is the remedy? In my view, remedy of a party is either to file a revision application before this Court under Section 115 of the Code challenging the order or a review application under the Code in which he is bound to succeed, if the same are otherwise not incompetent. If a party fails to raise objection or fails to move the High Court in revision or trial court for review at the initial stage against the order refusing to follow the special procedure, he cannot be permitted to attack the final judgment before the higher court on the ground that special procedure prescribed has not been followed, because non-observance of the special procedure is true an illegality but is not such an illegality which would make the judgment/decree void ab initio, Such illegality should be pointed out at the initial stage and if it is not so done, a party cannot be allowed to take a chance in the suit and in the event of failure in the suit on merit, take this as a ground of objection to'' the judgment. So far as tenant is concerned, he cannot be said to have been prejudiced by non-observance of the special procedure prescribed rather he has been benefited by it. According to the special procedure, suit is required to be tried in a summary manner and where a suit has been tried as a regular suit in which much more detailed procedure has to be followed, a tenant cannot be said to have suffered in any manner. So far as the landlord is concerned, though he has suffered by non-observance of the special procedure, but since he has not taken objection in the trial court and has allowed the trial to proceed in accordance with general law, he cannot attack the final judgment on this ground before the higher court. On the same analogy, in similar circumstances, an unsuccessful party cannot be allowed to take this ground in a review application filed under Section 14(9) of the Act. Even in criminal cases, it is well settled that if a case which has to be tried summarily has been tried as a warrant case, an unsuccessful party cannot attack judgment delivered upon the conclusion of trial on the ground that the case has not been tried in a summary manner. So far as accused is concerned, he has not been prejudiced by following the procedure of regular trial. So far as prosecution is concerned, wider procedure has been followed because of the fault of the prosecutor of having not take any objection before the trial court."

Seen this, the aberration in the procedure adopted by the trial court although would not prejudice the party but such mistaken procedure would not create a forum which is not otherwise provided. The law provides for filing revision application there against by the aggrieved party. The preliminary objection raised by the plaintiff was not correctly decided by the first appellate court.

In view of discussions made hereinabove, this Court answers the substantial question of law under reference in favour of the appellant(s) and it is held that even if there is aberration in the procedure adopted in trying the case in the light of the counter version of the defendant the suit remained a simple suit for eviction on the ground of personal necessity in which the procedure prescribed for contesting the same was followed. Any deviation at the subsequent stage of the suit will not change or create any jurisdiction in the court or authority which is not provided under Section 14(8) of the Act. The appeal preferred by the defendant before the lower appellate court was not maintainable in law. The substantial question of law going to the root of the jurisdiction of the appellate court to entertain the appeal having been answered in favour of the plaintiff-appellant, this Court has no hesitation in setting aside the judgment and decree passed by the learned lower appellate court. The appeal is allowed. No cost(s).