Nirmal Prasad Yadav and Others vs Kapildeo Prasad

Gurusharan Sharma, J.—Title Eviction Suit No.28 of 1995 has been filed by the plaintiff-opposite party against the defendants-petitioners for eviction from part of the Suit Holding No. 86/72, situated in Patna City, u/s 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ''the Act'').

The defendants filed written statement and counter-claims as a cross-suit. It was prayed that eviction suit may be dismissed and it be declared that the plaintiff did not acquire right, title, interest and possession over the suit premises by sale-deed dated 16.9.1991 and as such he was not the landlord of the defendants. The defendants have right, title, interest and possession over the suit premises as well as properties mentioned in Schedule A to the cross-suit.

On 28.11.1995, the plaintiff filed a petition under Order VIII, Rule 6C of the CPC (hereinafter referred to as ''the Code'') for excluding the counter-claims made by the defendants in their written statement on the ground that it was suit for eviction in respect of the premises, detailed in Schedule II to the plaint u/s 11(1)(c) of the Act, whereas counter-claims related to the entire Schedule I (Schedule A to the written statement). The defendants have already lost their claim of title and possession over Schedule I as against Mahanth Awadh Das, the plaintiffs vendor up to the Apex Court. Market value of Schedule I property was not less than Rs. 2 lacs, which was beyond pecuniary jurisdiction of the Court. Eviction Suit was filed u/s 14 of the Act where there was no provision of counter-claims.

By order dated 9.7.1996, the trial Court was pleased to exclude the counter claims as set up by the defendants in their written statement under Order VIII, Rule 6C of the Code.

Mahanth Awadh Das, as landlord of the suit premises had filed Eviction Suit No. 9 of 1989 against the defendants u/s 14 of the Act on the ground of personal necessity, which was decreed. Against the said eviction decree, the defendants filed Civil Revision No. 1626 of 1991 in this Court u/s 14(8) of the Act. During pendency of the Revision application, on 16.6.1991 Mahanth Awadh Das transferred the Schedule I property including suit house (Schedule II to the plaint) to the plaintiff, Kapildeo Prasad. Hence, thereafter on 30.11.1994, the aforesaid Civil Revision application was allowed, as the personal necessity of the decree holder vanished and consequently, Eviction Suit No. 9 of 1989 was dismissed.

The defendants had also filed Title Suit No. 206 of 1989 against Mahanth Awadh Das for declaration of title and possession in respect of the present Schedule I properties, which was contested and was dismissed on merit on 27.7.1991. The defendants filed First Appeal No. 401 of 1993, which was also dismissed on 30.11.199r L.P.A. No. 19 of 1995 was dismissed on 17.4.1995 and SLP (Civil) No. 17464 of 1995 was also dismissed by the Apex Court on 14.8.1995. In the said litigation after death of Mahanth Awadh Das on 29.3.1994, having purchased the suit property by registered sale-deed dated 16.9.1991, Kapildeo Prasad, the plaintiff was substituted in his place under Order XXII, Rule 10 of the Code.

In the present Revision application the only question involved is as to whether in a suit u/s 14 of the Act, counter claim under Order VIII, Rule 6-A of the Code can be made by the defendants.

Mr. S.S. Asghar Hussain, Senior Counsel for the petitioner submitted that counter-claims made by the defendants in the present suit for settlement of their claims was to be treated as a cross suit and decided in the same suit without relegating the parties to a fresh suit. Mr. Hussain placed reliance upon a decision of the Apex Court in Jag Mohan Chawla and another Vs. Dera Radha Swami Satsang and others, , wherein it was held that a defendant can claim any right by way of a counter claim in respect of any cause of action that has accrued to him even though it is independent of the cause of action averred by the plaintiff and have the same cause of action adjudicated without relegating the defendant to file a separate suit.

On the other hand, Mr. Shashi Shekhar Dwivedi, Senior Counsel for the opposite party submitted that the defendant''s counter-claims were not only barred by resjudicata as they fought in respect of declaration of their title and possession over the entire Schedule I property including Schedule II unsuccessfully up to the Apex Court. It was also not maintainable in view of proviso to Rule 6A(1) of Order VIII. Further such counter claims could not have been entertained in a suit u/s 14 of the Act.

Admittedly, the present suit has been filed u/s 14 of the Act. This Act has been enacted to regulate letting of building and rent thereof and to prevent unreasonable eviction of tenants therefrom, Section 11 of the Act prohibits eviction of a tenant except in execution of a decree passed by Court on one or more of the grounds mentioned therein, Section 14, however, provides for a Special Procedure for disposal of cases for eviction on the ground of bona fide requirement or on the ground of expiry of the period of lease. Under the said provision, a Special Procedure has been laid down u/s 14 for trial and disposal of the suit, which shall prevail over general provisions contained in the Act even in relation to procedural matters.

The plaintiff must prove that he was landlord in respect of the suit premises, which was being occupied by the defendant as a tenant. The defendant is, however, entitled in law to take defence other than quo-tenant.

The present suit is for eviction only on the ground of personal necessity. It was not filed on any other ground. The trial Court has to follow the practice and procedure of a Provincial Small Causes Court in terms of Section 14(7) of the Act. Defendants in view of Section 14(8) have no right of appeal or Second Appeal as against a decree for eviction passed in the suit.

It is well settled that in a suit u/s 14 of the Act, complicated question of title of the parties cannot be decided and the suit is decided in a summary manner under the provisions of Provincial Small Causes Court Act. However, there may be a situation in which the defendant despite having title in the property may lose a suit for eviction filed u/s 14 of the Act, but decision in such suit is not to operate as res judicata in a properly constituted suit between the parties for declaration of title.

In my opinion, the remedy to a party-defendant claiming his own title and denying the plaintiffs title over the suit property in a suit for eviction u/s 14 is to file a regular suit for title. In such circumstance, counter-claims under Order VIII, Rule 6-A of the Code relating to title by defendant in his written statement in a suit u/s 14 of the Act cannot be entertained and decided therein.

In the present case without going into the question of res judicata as aforesaid and/or applying the proviso to Rule 6-A(1) of Order VIII, under Special Procedure provided for a suit u/s 14 and within the scope of such suit counter-claims in question made by the defendants was rightly excluded under Order VIII, Rule 6-C of the Code.

I, therefore, find no reason to interfere with the impugned order dated 9.7.1996. This Revision application is dismissed, but without costs.

The trial Court is directed to dispose of Title Eviction Suit No. 28 of 1995 within six months from the date of receipt./communication of a copy of this order.