IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1439 of 2008 MAHESHWARI PRASAD & ORS Versus SURESH KUMAR & ANR ----------- 2. 3.9.2008 Heard counsel for the petitioner. In the opinion of this Court the impugned order passed by the lower appellate court which is in seisin of a title eviction appeal arising out of a decree seeking eviction of the petitioner tenant cannot be said to be a jurisdictional error. This Court is not unmindful of the position in law that an appellate court while hearing appeal of a tenant is not really exercising the power of the House Controller under section 9 of the B.B.C.Act but then a question would arise if during the pendency of the appeal the building on account of unforeseen situation has undergone a change which would require at least the tenant to make some repair, it cannot be said that the appellate court during the pendency of the appeal cannot exercise its power to restore the position of the premises. Reliance placed in this regard by the counsel for the petitioner on a Division Bench Judgment of this Court in the case of 2 Deodhari Sah & anor. Vs. Commissioner, Tirhut Division, reported in 1983 PLJR 390 is wholly misplaced. What has been really decided by the Division Bench in the aforesaid case is confined to the extent of the power of the House Controller while ordering a repair under the ambit of section 9 of the B.B.C.Act. In that case itself, this court had held that the order of House Controller directed for construction of a roof and/or giving a new look altogether to the building was not permissible within the scope of section 9 of the Act. This Court is absolutely amazed with the approach of the counsel for the petitioner in placing reliance on the aforesaid judgment because it is not even a case arising out of an order of the House Controller. In fact what the appellate court has merely passed an order to restore the status quo ante with regard to the suit property which underwent major changes, as is also admitted by both the sides in their application filed before the court below. That being so, if the prayer of the tenant was allowed to the extent of putting 3 a door, this Court would not go into niceties of argument advanced on behalf of the petitioner that actually it would not amount to repair but a new construction. That being, so, this Court does not find any merit in this application, which is accordingly dismissed. ( Mihir Kumar Jha,J.) Surendra/