RAM PRASAD RAJAK A v.

NANO KUMAR AND BROS. AND ANR.

AUGUST 18, 1998

[DR. AS. ANAND AND M. SRINIVASAN, JJ.] B

Rent Control & Eviction :

Bihar Buildings (lease, Rent & Eviction) Control Act, 1981:-Section 14-Eviction suit-Dismissal of-Remedy agai11sHfeld, la11dlord can cl!al- C lenge it by filing appeal u/s 96 Civil Procedure Code-No Provisio11 in the Act prescribing any remedy to the landlord-Revision 11/s 14(8) of the Act against

decree of eviction passed by Appellate Cowt-Whether maimainable-Held, No.

Civil Procedure Code, 1908-Section lOfJ-£victio11 suit-Bonafide Re- D quireme11t-Findi11g off act-High Cowt, in second appeal not empowered to reappreciate evide11ce 011 record and i11te1fere with finding recorded by llial Cowt.

The appellant, landlord of a shop which was occupied by the respondents as tenants, filed Eviction Suit u/s 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 on the ground of bo11afide requirement for personal oci:u 1iation. That suit was dismissed by the Trial Court.

However, on appeal, the appellant got a decree for eviction against the respondents. The respondents filed a Civil Revision Petition u/S 14(8) of the. Act, which was allowed. This appeal had been filed against the judgment of the High Court.

TI1e respondent raised a preliminary objection that the appellant's appeal against the dismissal of the suit by the Trial Court was not maintainable as by virtue of the provisions contained in Sections 13 and G 14(8) of the Act, the only remedy available to the appellant was an appiication to the High Court for revision of the order llf the Trial Court.

The appellant alleged that as decided by the Full Bench of the Patna High Court in Mohd. Jai1111lA11sali v. Kllalil, (1990) 2 PWR 378 which holds the field, if a suit for eviction ends in dismissal by the Trial Court, the H

A remedy of the landlord is to challenge the same under Section 96 CPC as there is no provision in Section 14 or in the Act prescribingany remedy to the landlord.

Allowirig the Appeal, this Court

B HELD : 1.1. The decision of the Full Bench of the Patna High Court in Mohd. Jainul Ansaii v. Khalil, holding that if a snit for eviction filed under the provisions of the Bihar Buildings (Lease, Rent & lviction) Control Act, 1982, ends in dismissal by the Trial Court, the remedy of the landlord is to challenge the same u/S 96 Civil Procedure Code as there is C no provision in Section 14 or in the Act prescribing any remedy to the

landlord, is correct in law. The reasons given by the Full B1nch are appropriate. The Full Bench has referred to the judgment of this Court in Vi11od Kumar Chowdluy v. Smt. Narain Devi Ta11eja and rightly distinguished the same on the footing that the provision of the Delhi Rent Control Act, 1958 and the Ribar Act are not paii-mate1ia. [4-F-H; 5-B] D ~.

Vi11od Kumar Clwwdluy v. Smt. Narain Devi Ta11eja, [1980] 2 SCC 120, distinguished.

Mohd. Jai11ztl Ansaii v. Khalil, (1990) 2 PWR 378 (FB), approved.

1.2. The respondents filed a Revision under Section 14(8) of the Act against the judgment of the Appellate Court granting a decree for evictirm in favour of the Appellant. Obviously that revision was not maintainable as there is no provision in Section 14(8) of the Act for a revision against an Appellate Order. The said sub-section refers only to an order passed by the F Trial Court for recovery of possession in favour of the landlord. If the Trial

Court dismisses the suit, the only remedy of the landlord is to file all appeal under Section 96 CPC. When such an appeal is disposed of by thn! Appellate Court, the further remedy of the aggrieved party is only under Section 100 CPC and there is no c1uestion of reverting back to Section 14(8) of the G Act. The appellate order or decree can not be considered to be an order of the trial Court for recovery of possession within the meaning of Section 14(8) of the Act. Hence, the revision petition filed by the respondent before the High Court was not maintainable. [5-F-H; 6-A]

1.3. Considering that the objection as to the maintainability of the H revision petition was not taken by the appellant in the High Court and the

R.P. RAJAK v. NANO KUMAR AND BROS.[SRINIVASAN, J.] 3

revision was entertained and allowed, in order to meet the ends of justice A that revision petition was to be treated as a second appeal u/S 100 CPC.

Therefore, unless there was a ubstantial question of law, the High Court had no jurisdiction to entertain the second appeal and consider the merits, existence of a substantial c1uestion of law being sine qua non for the exercise of jurisdiction u/S 100 CPC. The only c1uestion raised in the instant case related to the bona fide requirement of the appellant. It was entirely a matter to be decided on an appreciation of the evidence, it therefore, did not give rise to any substantial c1uestion of law. The High Court interfered with a finding of fact arrived at in the first appeal on an appreciation of

the evidence. The High Court made an attempt to reappreciate the evidence and come to the conclusion that the appellant failed to prove his C bona fide rec1uirement. TI1e High Court had acted beyond its jurisdiction in appreciating the evidence on record. TI1e first Appellate Court had discussed the evidence threadbare and con'sidered the matter in the proper perspective. [6-B-H; 7-A]

Panchugopal Bama & Ors. v. Umesh Chandra Goswami & Ors., J.T. D

(1997) 2 SC 554; Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors., J.T. (1997) 5 SC 202, relied on. /

CIVIL APPELLATE JURISDJCTIQN Civil Appeal No. 95 of 1997.

From the Judgment , a11d Order dated 15.5.96 of the Patna High Court in C.R. No. 416 of 1995.

KR. Nagaraja, K.K. Tyagi and Anand Kumar Sharma for the Appellant.

S.B. Sanyal and Ranjan Mukherjee for the Respondents.

The Judgment of the Court was delivered by

SRINIVASAN, J. The appellant is landlord of a shop measuring

6'xl 7-1/2' which is occupied by the respondents as tenants. The appellant G 't filed Eviction Suit No. 19/85 under the general law in the Court of District Munsif, Giridih for evicting the respondents on two grounds :

_ (i) non-payment of rent and

(ii) bona fide personal requirement.

A The suit was dismissed and an appeal by the appellant also failed. He filed a second appeal, during the pendency of which he filed the present Eviction Suit No. 35/89 on the file of the District Munsif, Giridih under Section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, ('for short, 'the Act') on the ground of bona fide requirement for B personal occupation. That suit was dismissed by the Trial Court. On

appeal, the appellant succeeded and got a decree for eviction against the respondents. Against the said decree, the respondents filed a Civil Revision Petition under Section 14(8) of the Act. When.the said Revision Petition was pending the appellant withdrew his Second Appeal filed in the earlier proceedings and got it dismissed. Thereafter, the High Court allowed the C Revision Petition filed by the respondents on two grounds, namely :

(i) the' second suit for eviction filed by the appellant was barred by the provisions of Order 2 Rule 2 C.P.C. and

(ii) the appellant's requirement for personal occupation was not bona D fide. It is that judgment of the High Court which is challenged in this appeal.

2. A preliminary objection has been raised by the respondents at the hearing of the appeal that the appellant's appeal before the District Court E against the dismissal of the suit by the Trial Court was not maintainable and, consequently, the judgment rendered by the Appellate Court in favour of the appellant was invalid. The contention of the respondents is that by virtue of the provisions contained in Sections 13 and 14(8) of the Act, the only remedy available to the appellant against the dismissal of his suit for eviction was an application to the High Court for revision of the order of F the Trial Court. In answer to the said contention, learned counsel for the appellant submits that the question has been discussed and considered in detail by the Full Bench of the Patna High Court in Mohd. Jainul Ansa1i

v. Khalil, (1990) 2 P.L.J.R. 378 and that it has been decided by the Full Bench if a suit for eviction ends in dismissal by the Trial Court, the remedy G of the landlord is to challenge the same under Section 96 C.P.C. as there is no provision in Section 14 or in the Act prescribing any remedy to the landlord. Learned counsel represented that the said judgment of the Full Bench has not been challenged in this Court and it holds the field.

2. It is the contention of the respondents that the Judgment of the H Full Bench is erroneous as it runs counter to the judgment of this Court

R.P. RAJ AK v. NAND KUMAR AND BROS.[SRINIVASAN, J.] 5

in Vinod Kumar Chowdluy v. Smt. Narain Devi Taneja, (1980) 2 SCC 120 A in which a corresponding provision in the Delhi Rent Control Act, 1958 was considered. According to learned counsel for the respondents the provisions in the Delhi Rent Control Act and the Bihar Act are pwi materia and the judgment of the Supreme Court would govern the question. We are unable to agree.

4. The Full Bench has referred to Vi11od Kumar's case and distinguished the same on the footing that the provisions of the two enactments are not pwi-materia .. The Full Bench has also considered the provisions of the two enactments. The reasons given by the Full Bench are appropriate and we agree with the same. We are also ofthe opinion that the decision of this Court in Vinod Kwiiar Chowdluy's case will not apply. As we are in agreement with the view expressed by the Full Bench, it is unnecessary for us to consider the question in detail. Suffice it to hold that the decision of the Full Bench is correct in law. Hence,· the preliminary objection raised by learned counsel for the respondents is over-ruled.

5. Learned counsel for the respondents has stated before us that he is not supporting the judgment of the High Court in so far as it holds that the present suit for eviction filed by the appellant is barred by the provisions of Order 2 Rule 2 CPC. Even apart from his statement we find

that the cause of action for the second suit is entirely different from the E cause of action for the earlier suit and there is no chance of Order 2 Rule 2 barring this suit.

6. We have noticed that the respondents filed a Revision under Section 14(8) of the Act against the judgment of the Appellate Court F granting a decree for eviction in favour of the appellant. Obviously that revision was not maintainable as there is no provision in Section 14(8) of the Act for a revision against an Appellate Order. The said sub-section refers only to an order passed by the Ttial Court for recovery of possession in favour of the landlord. If the Trial Court dismisses the suit, the only remedy of the landlord is to file an appeal under Section 96 CPC. When G such an appeal is disposed of by the Appellate Court, the further remedy of the aggrieved party is only under Section 100 CPC and there is no question of reverting back to Section 14(8) of the Act. By no stretch of imagination, the appellate order or decree can be considered to be an order of the Trial Court for recovery of possession within the meaning of H

A Section 14(8) of the Act. Hence, the revision petition filed by the respondents before the High Court was not maintainable.

7. We find, however, the objection as to the maintainability of the revision petition was not taken by the appellant in the High Court. The revision was entertained and allowed by the High Court. In order to meet B the ends of justice we treat the said revision petition as a second appeal under Section 100 CPC and proceed to consider whether the .iudgment of the High Court is sustainable or not. Once the proceeding in the High Court is treated as a second appeal under Section 100 CPC, the restrictions prescribed in the said Section would come into play. The High Court could C and ought to have dealt with the matter as a second appeal and found out whether a substantial question of law arose for consideration. Unless there was a substantial question of law, the High Court had no jurisdiction to entertain th~ second appeal and consider the merits. It has been held by this Court in Panclmgopal Banta & Ors. v. Umesh Chandra Goswami & D Ors., J .T. (1997) 2 SC 554 and Kshitish Chandra Purkait v. Santosh Kumar

Purkait & Ors., J.T. (1997) 5 SC 202, that existence of a substantial question of law is sine qua non for the exercise of jurisdiction under Section 100 CPC. In both the aforesaid cases, one of us (Dr. Anand, J .) was a party to the Bench and in the former, he spoke for the Bench.

8. That apart, on merits, the only other question relates to the bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to be decided on an appreciation of the evidence. On a perusal of the judgment of the High Court it is evident that it had interfered with a finding of fact arrived at by the Second p Additional District Judge, Giridih in the first appeal on an appreciation of the evid!!nce. The High Court made an attempt to re-appreciate the evidence and come to the conclusion that the appellant failed to prove his bona fide requirement. In fact after a 'scanty discussion of the evidence, the High Court observed, "in this view of the matter I find and hold that the plaintiff miserably failed on factual aspect also to prove his bona fide G necessity." The High Court has acted beyond its jurisdiction in appreciating the evidence on record.

9. We have also been taken through the judgment of the Second Additional District Judge rendered in the first appeal against the judgment H of the Trial Court. We find that the Appellate Court has discussed the

R.P.RAJAKv. NAND KUMAR AND BROS.[SRINIVASAN, J.] 7

evidence threadbare and considered the matter in the proper perspective.

The Appellate Court has considered all the materials on record and nothing has been omitted to be referred. Learned counsel for the respondents has contended that the Appellate Court omitted to consider an admission made by the plaintiff that his need could be satisfied if the adjacent shop occupied by another tenant Harish Chandra Bagga was delivered to him. We do not find any such admission on record. On the other hand, the categoric case of the appellant is that his requirement can be fulfilled only by vacating both the premises occupied by the tenants including the respondents. In so far as Harish Chandra Bagga is concerned it is stated by the appellant that he had earlier undertaken to vacate the shop in his occupation and ultimately handed over possession of the said shop to the appellant on 20.9 .97 during the pendency of this appeal. On a perusal of the record we are of the opinion that the finding of fact rendered by the Second Additional District Judge in the first appeal is conclusive and the High Court has exceeded its jurisdiction in interfering with the said finding.

10. Consequently, the Civil Appeal is allowed and the judgment and order of the High Court of Patna in Civil Revision No. 416 of 1995 (R) is set aside. The judgment and decree for eviction passed by the Second Additional District Judge, Giridih in Eviction Appeal No, 6 of 1990 are restored. There will be no order as to costs.

11. Learned counsel for the respondents prayed for grant of one year time to vacate the premises. Learned counsel for the appellant has agreed to the same after obtaining instructions. In the circumstances, the respondents are granted time to vacate the suit premises till 14.8.1999 on condition that the respondents file the usual undertaking in this Court within a F period of eight weeks from this date failing which, the benefit of grant of time will not be available to them.

R.A.

Appeal allowed.