Dr. Hemchandra Jha vs Smt. Anjana Lal

Satyeshwar Roy, J.—This is an application in revision filed under proviso to section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (the Rent Act) challenging the order passed by the learned Munsif decreeing the suit for eviction of the petitioner from a building on the ground of personal necessity as provided u/s 11 (1) (c) of the Rent Act. According to the plaint, the opposite party-plaintiff resides in a rented building with her husband and family. The rented building is neither suitable nor sufficient for her accomodation. She requires the suit building for her own residence and for the occupation of her husband and children. The opposite party purchased the suit building on 24.2.1984 and the petitioner-defendant is in occupation of the same as a tenant from before her purchase. After purchasing it, she repeatedly requested the petitioner to vacate it, but he did not. On these averments a decree for eviction was prayed. Although in the original plaint, the opposite party also stated that the petitioner had defaulted in paying the rent from March to July, 1984, that statement was deleted by amendment of the plaint before the service of summons on the petitioner.

The petitioner in written statement, after stating the usual technical objections regarding the maintainability of the suit, like waiver and estoppel etc., stated that he was never informed about the purchase of the suit building by the opposite party and he did not attorn to her. There is no relationship of landlord and tenant between the parties. He was never asked to vacate the suit building. The opposite party does not require the suit building for her use and occupation; rather she is negotiating to transfer it and in order to get fancy price, she instituted the suit to get vacant possession as no buyer will purchase a tenanted building.

It may be noticed that although in the plaint, as amended, prayer for decree for eviction was made only on the ground of personal necessity as envisaged in section 11 (1) (c) of the Rent Act, yet the procedure laid down in section 14 which applies to such suits was not followed. Thus although the petitioner after his appearance in the suit did not file any application for leave to contest the suit, his written statement was accepted and he was allowed to contest the suit.

Three points were urged by Mr. Prasad, Learned Counsel who appeared on behalf of the petitioner, namely : (a) As the procedure laid down in section 14 of the Rent Act was not followed, the order was vitiated; (b) as there was variance between pleading and proof, the court below ought to have held that the opposite party has failed to prove that she required it bonafide for her own use and occupation; (c) as the court below did not record any finding in terms of the proviso to section 11 (1) (c), the order cannot be sustained.

Before proceeding with the submissions made by Mr. Prasad, it is necessary first to decide what is the power of this Court in this type of revision application. No precedent has been cited at the Bar on this question. Section 14 (8) of the Act reads as follows:--

14 (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section: Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit."

Court may interfere only if it is satisfied that the order is not "according to law". Therefore this is the limitation put on the power of the Court.

What is meant "according to law" ? "Judgment according to law is not invariably the same thing as judgment according to the merit of the particular case from which the judgment flows. The hall mark of judgment according to law is confirmity with a set of rules", Lord Devlin, Lord of Appeal in the book "The Judge". And what is meant by "a set of rules" ? This means rules designed so as to advance justice in a normal case. What are the rules applicable to the present case ? As in this case we are concerned with a suit for eviction from a building filed by a landlord against the tenant besides others the rules which shall apply are Code of Civil Procedure, Evidence Act and the Rent Act. If, therefore, there has been violation of any of the provisions of the procedure law which has resulted in mis-carriage of justice or of any mandatory provision of the Rent Act or if the finding is perverse, i. e., not supported by evidence, it must be held that the order impugned is not "according to law".

Section 14 lays down the special procedure to be followed for disposal of suits for eviction on the ground of bonafide requirement, section 11 (1) (c) and on the ground of expiry of specified period of lease, section 11 (1) (e). In this case we are concerned with the first ground. Section 13 provides that the provisions of section 14 or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in the Rent Act or in any other law for the time being in force. So the provisions of section 14 shall have overriding effect in cases where eviction is prayed on the grounds mentioned in section 11 (1) (c) and (e).

The procedure to be followed in such suits is that a tenant, on whom summons has been duly served, shall not be entitled to contest the suit unless he files an affidavit stating the ground on which he seeks to made such contest. If leave is granted he may, within fifteen days from the date of order, either pray that the affidavit may be treated as written-statement or he may file a separate written-statement. If the tenant fails to obtain leave or does not appear after service of summons, the statement made by the landlord in the suit shall be deemed to be admitted and the landlord shall be entitled to a decree for eviction. When leave to the tenant has been granted, the Court while hearing the suit shall follow the practice and procedure of a court of Small Causes including the recording of evidence.

So far the first point of Mr. Prasad is concerned admittedly the tenant-petitioner did not obtain leave to contest the suit. Inspite of that his written-statement was accepted and he was allowed to contest the suit. The land lord-opposite party did not object to this. According to Mr. Prasad as the procedure was not followed, the order of the court below was vitiated.

This special procedure was introduced in Bihar for the first time in 1982. This procedure is to the disadvantage of the tenant and to the advantage of the landlord. In this case the person in whose favour this procedure has been introduced did not make any grievance at any stage. She does not say that she has been prejudiced. The petitioner successfully escaped from the rigour of the special procedure and the suit was tried by following the procedure laid down in the Code of Civil Procedure. The petitioner at this stage cannot be allowed to agitate this point. He cannot be allowed to take advantage of his own omission.

Further, if the order is set aside on the ground urged by Mr. Prasad what will be the result ? Admittedly, no affidavit stating the grounds on which he wanted to contest the suit was filed by the petitioner. Unless he filed such affidavit and obtained leave, he was not entitled to contest the suit. His written-statement and evidence shall, therefore, have to be ignored and the opposite party shall be entitled to a decree on the basis of her statement, I, therefore, hold that as there has been no miscarriage of justice, there is no substance in the first point urged by Mr. Prasad.

In support of the second point, Mr. Prasad drew my attention to paragraphs 7 and 8 of plaint, wherein the opposite party stated the facts about personal necessity, and to the evidence on this question and submitted that as there was variance between the plaint and evidence, no order for eviction on the ground of personal necessity could have been passed. According to Mr. Prasad the opposite party in the plaint stated that she along with her family was residing in a tenanted building whereas in the evidence it was stated that she along with her family was in occupation of a building of which the tenant was her uncle in law. Therefore there was variance between plaint and evidence.

In paragraph 7 of the plaint the opposite party stated that she required the suit building reasonably and in good faith for her use and occupation and for the occupation of her husband and children. In Paragraph 8 she stated that she along with her family and husband was residing in a rented house and it is neither suitable nor sufficient for her accomodation. In reply, the petitioner in paragraph 12 of the written-statement stated that the opposite party was negotiating to sell the suit property and as no buyer is ready to purchase the building occupied by a tenant, she has filed this suit. In paragraph 13 he stated that as the opposite party has not given any detail or description of the house in her occupation as a tenant, bonafide necessity cannot be determined.

The purpose of plaint is to give notice to the defendant about material facts. Plaintiff may rely in a suit. The purpose of written-statement is to give notice to the plaintiff about the material facts of defence of the defendant. Pleadings narrow the parties to definite issues at which they are at controversy.

In the plaint, as noticed above, the opposite party stated that she was residing in a rented building and this was denied by the petitioner in the written-statement. The issue was whether the opposite party was residing in a rented building. It was not necessary for the opposite party to state in the plaint whether she herself was the tenant or some-body else. The material fact pleaded was that she was in occupation of a rented building. The rest was matter of evidence. I, therefore, hold that there was no variance between plaint and evidence and the order of the court below cannot be interfered on this ground. Mr. Prasad fails in his second point.

So far the third point is concerned, Mr. Prasad submitted that the court below was required to record a finding whether the requirement of the opposite party would be satisfied if the petitioner was evicted from part of the suit building. As the court below did not record such finding, the order was bad. Mr. Sinha, Learned Counsel appearing on behalf of the opposite party, submitted that in case where procedure laid down u/s 14 of the Rent Act is to be followed, it is not necessary for court to record a finding as required under the proviso to section 11 (1) (c).

Clause (c) of section 11 (1) lays down that a decree for eviction against tenant may be passed if the landlord reasonably and in good faith requires the building. The proviso to clause (c) enjoins that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, court shall pass a decree accordingly.

Mr. Sinha submitted that the proviso is attracted to suits in which the procedure u/s 14 is not to be followed for instance where decree for eviction is prayed on the ground of default in paying rent for two months or more, section 11(1) (d), and personal necessity, section 11 (1) (c). This cannot be accepted. In all cases, for obtaining a decree, landlord must prove atleast one of the grounds mentioned in clauses (a) to (f) of section 11(1). Section 14 lays down merely the procedure to be followed in particular cases and it does not make any inroad in section 11. Even if particular procedure of section 14 is to be followed, decree may be passed only if ground of personal necessity is proved, i. e., section 11 (1) (c) is proved. Once that is held, proviso to clause (c) is also attracted. If Mr. Sinha''s argument is accepted the proviso becomes otiose in some cases and is applicable in some cases, but that surely cannot be done. It must, therefore, be held that all cases where eviction is prayed on the ground of personal necessity proviso to clause (c) of section 11 (1) shall be attracted. The proviso is attracted to the present case also.

Admittedly, opposite party did not lead any evidence to show that eviction of the petitioner from part of the building will not fulfill her requirement. The petitioner also did not lead any evidence on this question. The court below was required to record a finding on this question. It must, therefore, be held that the question of personal necessity was not decided by the court below in accordance with law. The opposite party must succeed on the third point. For the reasons recorded on the third point, this application is allowed and the operative part of the order passed by the court below is set-aside. The case is remitted to the court below who shall give opportunity to the parties to lead evidence on the only point whether the petitioner should be evicted from the whole building or his partial eviction shall fulfil the requirement of the opposite party. It shall, thereafter, proceed to decide this question in accordance with law and dispose of the basis of the finding to be so recorded. The finding of the court below on all other questions is confirmed. Parties shall bear their own cost in this application.