IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.416 of 2008 Rajendra Bhagat s/o late Sheo Pujan Bhagat resident of Village Bhairopur P.O. Doriganj P.S. Doriganj District. Saran Defendant- Appellant- Appellant Versus Mahendra Bhagat s/o late Bhagwan Bhagat resident of Village Bhairopur P.O. Doriganj P.S. Doriganj District. Saran Plaintiff-Respondent- Respondent ----------- For the appellant: Mr Nagendra Rai, Advocate For the respondent: Mr Raghib Ahsan, Sr. Advocate Mr D.N. Prasad, Advocate ----------- 06/ 06.04.2010 Heard learned counsel for the sole defendant-appellant- appellant as well as learned counsel for the sole plaintiff-respondent- respondent. 2. The instant second appeal arises out of Eviction Suit no.7 of 1998 which was filed by the plaintiff-respondent for eviction of the defendant claiming him to be his tenant on the ground of bonafide personal necessity as well as expiry of fixed period of tenancy. The said suit was decreed on contest by Munsif II, Chapra vide his judgment and decree dated 24.09.2005. 3. Against the aforesaid order of eviction, the defendant- appellant filed Civil Revision No. 2306 of 2005 under the proviso to Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction) Control Act,1982 (hereinafter referred to as ‘the Act’ for the sake of brevity) in which office of this court raised objection regarding maintainability of the civil revision in view of the fact that issue no.V framed by the trial court was for recovery of arrear of rent and there was one sentence in the last portion of the order of the trial court directing the defendant to pay arrear of rent to the plaintiff - 2 - although no relief was sought by the plaintiff. Thereafter on 05.11.2007 the defendant-petitioner on the basis of the aforesaid objection of the office sought permission to withdraw the civil revision for filing a regular appeal. Accordingly, civil revision was dismissed as withdrawn in presence of learned counsel for the plaintiff-opposite party. 4. Thereafter, defendant-appellant filed Title Appeal no.3 of 2007 challenging the judgment and decree of the trial court. The said title appeal was dismissed by Additional District Judge-cum- Fast Track Court No. V, Saran vide his judgment and decree dated 24.10.2008 on the ground of limitation as well as maintainability stating that when an eviction suit is decided under the provision of section 14 of the Act there is a bar in filing an appeal and second appeal provided under sub-section (8) thereof. The said judgment of the lower appellate court has been challenged by the defendant in the instant second appeal. 5. Learned counsel for the appellant vehemently argues that when an objection regarding maintainability of the civil revision was raised by the office, he withdrew the civil revision in presence of learned counsel for the plaintiff –opposite party for filing a title appeal which prayer was allowed by a bench of this court and the civil revision was dismissed as withdrawn, hence in that background he filed title appeal, therefore there was no question of any limitation or lack of maintainability in the title appeal. He further submits that in this way he has been deprived from choosing any forum to challenge the judgment and decree of the trial court which would not only be against the specific provision of law but would also be violative of the principles of equity and justice. - 3 - 6. On the other hand, learned counsel for the plaintiff – respondent contests the claim of the defendant-appellant and states that eviction suit was filed under the provision of section 11 (i) (c) and (e) of the Act namely reasonable requirement of the plaintiff as well as expiry of the fixed period of lease which were both fully proved inasmuch as expiry of the tenancy was based on the basis of a Panchnama signed by both the parties which were binding on the defendant also. He further submits that in the said circumstances, the suit proceeded under the provision of section 14 of the Act and the defendant after appearing obtained leave to contest and only thereafter filed his written statement. He also states that no relief at all was claimed by the plaintiff –respondent for recovery of arrear of rent and hence the suit never proceeded for recovery of rent and in these circumstances, title appeal filed against the judgment of the trial court was not maintainable under the provision of section 14(8) of the Act rather only civil revision could have been filed as per proviso to the said sub-section, but such civil revision, having been filed by the appellant was voluntarily withdrawn by the appellant himself and hence he has no claim left. 7. On considering the pleadings of the parties as well as the materials on record, it is quite apparent from perusal of the plaint produced by learned counsel for the appellant that the suit was pure and simple suit for eviction on the ground of personal necessity and expiry of the period of tenancy and no relief was sought therein for recovery of arrear of rent. It is also not in dispute that the defendant obtained leave to contest as per provision of section 14 of the Act and contested the said suit. In the said circumstances, the suit throughout continued under the provision of - 4 - section 14 of the Act. However, issue no.V framed by the trial court in its judgment was whether the plaintiff is entitled to receive arrear of rent, but with respect to said issue neither any pleading nor any evidence was considered by the trial court and merely at the fag end of the said judgment only one line was added that the defendant must pay arrear of rent to the plaintiff but no detail of the balance amount had been mentioned or discussed. Hence it is quite apparent that the said order might have been passed in lieu of cost and the lower appellate court vide order dated 31.01.2008 had rightly held that the question of ordering to deposit the rent is not maintainable rather it is maintainable in a suit under section 14 of the Act. 8. In the said circumstances, the only remedy against the judgment and decree of the trial court was to file civil revision under the proviso to sub-section (8) of section 14 of the Act and the petitioner was quite justified in filing C.R. No. 2306 of 2005 but merely on incorrect objection raised by the office with regard to the maintainability of the civil revision, the defendant- petitioner withdrew the said civil revision vide order dated 05.11.2007 although he should have contested the said report of the office with regard to the maintainability. 9. Considering the said matter in detail, it is quite apparent that against the order of eviction passed by the trial court in a proceeding under section 14 of the Act, title appeal was not maintainable and the court of appeal below was quite justified in dismissing the title appeal as not maintainable. 10. In the aforesaid facts and circumstances, this Court does - 5 - not find any illegality in the impugned judgment and decree of the court of appeal below, nor does it find any substantial question of law involved in the instant second appeal, which is accordingly dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. 11. However, defendant-appellant will be at liberty to file a fresh petition in this court for review of order dated 05.11.2007 passed by a bench of this court in C.R. No. 2306 of 2005 allowing the petitioner to withdraw the civil revision on the basis of a wrong report of the office regarding maintainability of the civil revision. (S.N.Hussain,J) shahid