FIRST APPEAL No.167 OF 2006 Against the judgment and decree dated 4.9.2006 passed by Sri Chandra Shekhar Pradhan, Sub Judge VI, Patna in Eviction Suit No. 33 of 1998. Hassan Shaheen @ Anr. ………… Defendants/Appellants Versus Md. Syed Ahmad Faisal Shere ……….. Plaintiff/Respondent ******** For the appellants : Mr. V. Nath, Advocate Mr. Ashok Kumar, Advocate Mr. Mohd. Aslam Ansari, Advocate Mr. Satish Kumar, Advocate Mr. Sushil Kumar Ojha, Advocate For the respondent : Mr. M.P. Bharti, Advocate Mr. Mohd. Faiyaz Alam, Advocate Mr. S. K. Bharti, Advocate. Dated : 11th day of May, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. This first appeal has been filed by the defendants-appellants against the impugned judgment and decree dated 4.9.2006 passed by Sri Chandra Shekhar Pradhan, learned Sub Judge VI, Patna in Eviction Suit No. 33 of 1998 decreeing the plaintiff-respondent’s suit for eviction. 2. The plaintiff-respondent filed the aforesaid suit for eviction of the defendants-respondents on the ground of default and also prayed for recovery of arrears of rent @ Rs.7000/- from the month of January 1997 total being Rs.1,47,000/-. According to the plaintiff he is Mungeshwar Sahoo, J. -2- the owner of the suit premises i.e. Shop No. 5. The defendants- appellants were inducted as tenant on rent of Rs.7000/- per month. The tenancy started from 1.12.1994 for 11 months. According to the terms of the lease it was extended and, thereafter the defendants paid rent irregularly. They stopped payment of rent from the month January 1997 @ Rs.7000/-. Therefore, the suit was filed for eviction of the defendants-appellants on the ground of default under Section 11 (1) (d) of the Bihar Building (Lease, Rent and Eviction) Control Act. The plaintiff-respondent also prayed for recovery of arrears of rent. 3. The defendants appeared and filed contesting written statement alleging that the rent was Rs.4700/- per month and 2300/- was the monthly maintenance of suit shop. He admitted the ownership of the plaintiff. The main defence is that there was an agreement between the plaintiff and defendants according to which the plaintiff agreed to sell the suit premises @ Rs.600/- per square feet to the defendants-appellants and accordingly, an agreement was executed on 9.6.1977. It was agreed in the said agreement that since 9.6.1997 the defendants will not pay rent to the plaintiff. 4. It appears that during the pendency of the suit application under 15 of the B.B.C. Act 1982 was filed by the plaintiff praying for directing the defendants-appellants to deposit the arrears and current rent. By terms of order dated 15.3.2000 the appellants were directed to deposit the arrears and current rent @ Rs. 7000/-. It is admitted fact that against the said order of the court below the appellants filed civil revision before this court which was dismissed. Subsequently, for non-compliance of the order directing the appellants to deposit the arrears and current rent within the period granted by the court, the defence of the appellant was struck off. -3- 5. The plaintiff examined himself as witness. After trial the learned court below found that the evidence of the plaintiff is uncontroverted and on the basis of the evidence available on record found that the appellants is defaulter and, therefore, decreed the suit for eviction and also granted decree for recovery of arrears of rent with interest @ 9% per annum pedente lite and future till reliasation. 6. The learned counsel Mr. V. Nath appearing on behalf of the appellants submitted that during the pendency of the suit the appellants had filed an application seeking permission to adduce evidence to prove his case regarding the agreement between the plaintiff and defendants. The said application was allowed by the court below on 1.7.2005. The civil revision filed by the plaintiff against the said order dated 1.7.2005 has been dismissed by the learned court below but prior to disposal of the said civil revision the learned court below has passed the impugned judgment and decree. Since the civil revision being Civil Revision No. 1461 of 2005 has been dismissed by the High Court on 22.9.2005 the order passed by the court below dated 1.7.2005 is revived whereby the appellants were granted opportunity to adduce evidence to prove the agreement between the plaintiff and defendants. In such view of the matter the impugned judgment and decree are liable to be set aside and the matter be remanded back to the court below giving opportunity to the appellants to adduce evidence in support of the proof of the agreement between the parties by which the plaintiff had agreed to sell the suit shop to the defendants-appellants. Alternatively, the learned counsel submitted that the hearing of the appeal may be stayed till the disposal of the Title Suit No. 353 of 1999 pending in the court of Sub Judge-I, Patna which has been filed by the appellants for specific performance of the contract dated 9.6.1977. An interlocutory application being I.A. No. -4- 1574 of 2011 has also been filed by the appellants on 25.2.2011 wherein it is prayed that the final hearing of this first appeal be stayed till the disposal of the Title Suit No. 353 of 1999. This application was directed to be heard along with this appeal itself. Heard the parties on this application also. On these grounds, the learned counsel for the appellants submitted that the impugned judgment and decree are liable to be set aside or the hearing of the appeal may be stayed till the disposal of the suit for specific performance of agreement or the impugned judgment and decree be set aside and the matter be remanded to the court below giving opportunity to adduce evidence to the appellants as directed by the court below on 1.7.2005. 7. On the contrary, the learned counsel appearing on behalf of the respondent submitted that the eviction suit under the B.B.C. Act cannot be stayed on the ground that suit for specific performance of contract is pending. Moreover, the suit for specific performance has been filed by the plaintiff subsequent to the filing of this eviction suit. There is no provision for staying the previous suit on the ground that subsequently another suit has been filed. The learned counsel further submitted that the issue involved in this present suit for eviction is neither an issue directly and substantially involved in the subsequent suit filed by the plaintiff. If the appellants’ suit for specific performance will be decreed then the appellants will get back the possession of the suit premises but at this stage when the agreement itself is in dispute the hearing of this appeal cannot been stayed. The learned counsel further submitted that the plaintiffs landlord had filed Civil Revision No. 1461 of 2005 against the order dated 1.7.2005. While issuing notice to the appellants this court stayed the operation of the order dated 1.7.2005 and directed the court below to proceed. Accordingly, the court below proceeded and the impugned judgment and decree -5- was passed on 4.9.2006. When the suit was finally decided by the Court below this court while hearing Civil Revision No. 1461 of 2005 on 22.9.2005 dismissed the civil revision on the ground that the suit has been disposed of and first appeal is pending before this court. Since the civil revision was infructuous on the disposal of the suit itself there is no question of revival of the order dated 1st July 2005 arises. On these grounds, the learned counsel for the respondents submitted that the appeal is liable to be dismissed with costs. 8. In view of the above submissions of the parties, the only point arises for consideration is, as to whether on the basis of the order passed by this Court in Civil Revision No.1461 of 2005 the impugned judgment and decree can be set aside and the appeal may be remanded to the court below or whether disposal of this appeal be stayed till the disposal of the suit for specific performance filed by the appellant being Title Suit No. 353 of 1999 pending in the court of Sub Judge, 1st Patna and whether impugned judgment and decree are sustainable in the eye of law. 9. From the perusal of the record it appears that by terms of order dated 17.7.2002 the learned court below on the prayer of the appellants directed that the eviction suit may be made analogous with the suit for specific performance of contract. Against the said order of the learned court below the landlord filed Civil Revision No. 1123 of 2002 and this court by terms of order dated 1.12.2003 set aside the said order holding that tenancy is admitted and eviction suit under the provision of Bihar Building (Lease, and Eviction) Control Act is to be tried on specific ground mentioned therein whereas the suit filed for specific performance for contract the question for consideration is whether there is contract or not between the tenant and the landlord. These issues in both the suit are not same and cannot be made -6- analogous. This court also observed that the impugned order shows complete ignorance of law on the part of the subordinate judge of the court. Therefore, the point raised by the appellant in the Interlocutory Application No. 1574 of 2011 has already been decided by terms of order dated 1.1.2003. The same prayer has been made here again in the interlocutory application. It is well settled that the civil revisional jurisdiction is a part of appellate jurisdiction of this Court. The matter which has already been decided in civil revisional jurisdiction by this court cannot be permitted to reopen again in this appeal. 10. The learned counsel Mr. V. Nath submitted that for just cause and giving justice to the appellants the Court can exercise inherent power under Section 151 C.P.C. I do not agree with the submission. As stated above, the decision passed by this court was never challenged by the appellants and the matter cannot be permitted to be re-agitated again. I therefore, find no merit in the Interlocutory Application No.1574 of 2011. Accordingly, the I.A. No. 1574 of 2011 is hereby rejected. 11. The next submission of the learned counsel is that the Civil Revision No. 1461 of 2005 has been dismissed and, therefore, the interim order dated 1.7.2005 will revive. So far this submission is concerned also I find no force. From perusal of the order dated 22.9.2005 passed by this court in Civil Revision No. 1461 of 2005 it appears that while issuing notice the operation of the order dated 1.7.2005 passed by the court below was stayed and it was made clear that the pendency of the revision petition could not stand in the way of the court to proceed in the case. Accordingly, the learned court below proceeded and by the impugned judgment and decree decreed the suit. Ultimately after disposal of the suit when the revision was heard this court noticed that the suit has been dismissed and first appeal is -7- pending, therefore, the civil revision was dismissed. However, while dismissing the revision it has not been stated that the revision had become now infructuous. The appellants are trying to take advantage of this order by misinterpreting the order of this court to the effect that the revision was simply dismissed therefore, the interim order dated 1.7.2005 is revived. So far this submission is concerned it is not acceptable. When the suit itself has been disposed of there is no question of independent existence of the interim order arises. Moreover, while dismissing the revision this court noticed that the suit has been disposed of. Accordingly, the order dismissing the revision has not been passed on merit. In other words, the legality or otherwise of the order dated 1.7.2005 was not examined by this court because at that time the said order was not in existence and it has merged in the impugned judgment and decree, I therefore find no force in this submission also. 12. In the result, I find no merit in this first appeal and accordingly, this first appeal is dismissed with costs. The advocate fee is assessed at Rs.15,000/-. The plaintiff-respondent is entitled to realize the cost from the appellants. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 11th May, 2011 S.S./N.A.F.R.