IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1000 of 2006 SHAMBHU PRASAD Versus RAJ KUMAR KEDIA ----------- 4 14.11.2008 Heard Mr. Shashi Shekhar Dwiwedi learned senior counsel for the petitioner and Mr. S.D. Sanjay, Advocate appearing on behalf of the sole opposite party. . In the opinion of this Court, the impugned order passed by the lower appellate Court dismissing the appeal of the petitioner by holding it to be not maintainable in terms of Section 14(8) of the Bihar Building (Lease Rent and Eviction) Control Act 1982, hereinafter referred to as the Act cannot be sustained on a simple analysis of admitted fact that the suit, as a matter of fact, was never tried under the summary procedure under Section 14 of the Act. It is an admitted fact and infact also stands supported from the copy of the entire order-sheet of the produced by Mr. S.S. Dwivedi learned Sr. counsel appearing on behalf of the petitioner that neither there was a permission taken under Section 14(4) of the Act for contesting the suit nor the summary procedure as contemplated under Section 14 was infact was gone into by the Court below. The suit actually was tried as a general suit and in that view of the matter when there was also a prayer to the effect that plaintiff-landlord was also entitled for damages both past and future to be quantified in terms of money, it cannot be even otherwise said that the suit was one which was tried under special summary procedure envisaged under Section 14 of the Act. Learned counsel for the petitioner in this context, - 2 - has rightly referred to and relied on a judgment of this Court in the case of Ladu Gopal Kedia Vs. Bibi Jaibunissa reported in 1991(2) PLJR 1 laying down the ratio that an appeal against a decree of eviction under Section 14(8) of the Act is barred only when the suit has been tried under special procedure under Section 14 of the Act. Mr. S.D. Sanjay, learned counsel appearing on behalf of the opposite party, however submits that the suit was basically one for eviction on the ground of expiry of lease under Section 11(1) (e) of B.B.C. Act and the relief for amount of damages one was only by way of consequential relief. He in this regard by plaint of his reliance on a judgment of this Court in the case of Anil Kumar Tekriwal & anr. Vs. Sri Navin Chandra Singh reported in 1996(2) PLJR 556 contends that almost in a similar situation this Court had held that the appeal in such case was not maintainable. As noted above, Mr. Sanjay, however, could not dispute this fact that the suit was not tried after following the procedure under Section 14(4)(5) and (6) of the Act. This Court would not like to make any observation with regard to the other part of the submission of learned counsel for the petitioner as to whether the prayer for damages was or not within the permissible domain of Section 11 of the Act but then as the suit was admittedly not tried under special summary procedure under Section 14 of the Act, an appeal in terms of Section 14(8) of the Act was definitely maintainable. The reliance placed by Mr. - 3 - Sanjay on the judgment of this Court in the case of Anil Kumar Tekriwal (supra) also seems to be misplaced inasmuch as in paragraph No. 3 of the judgment, setting out the factual narration of that case, it would be clear that though initially in that case the defendant-tenant had initially not sought to leave to contest the suit under Section 14(4) of the Act when he had appeared and filed a written statement but soon thereafter he had sought such leave of the Court and that was also allowed and thereafter the suit had proceeded under the summary procedure of Section 14 of the Act. That being so, the ratio of Anil Kumar Tekriwal’s case(supra) will not be applicable to the facts of this case. Thus, in view of the aforesaid discussion and the admitted position that the suit was tried as a general suit, the appeal filed by the petitioner before the lower appellate Court was maintainable and the impugned order accordingly being bad and vitiated by an apparent jurisdictional error cannot be sustained and must be and is hereby set aside. In view of the fact that the eviction suit is of the year, 1995 and the appeal also was filed in the year 2003, this Court would direct that the appellate Court must decide the appeal within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and directions this Civil Revision application is allowed only to the extent indicated above. There would however be no order as to costs. Bibhash (Mihir Kumar Jha, J.)