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PATNA HIGH COURT
G.G.Sohani, S.Roy and S.B.Sinha JJ.
Mohd.Jainul Ansari
Versus
Mohd.Khalil
Civil Revision No. 45 of 1988 ;
Decided On : MAY 10, 1990
(Per Sobani CJ., concurring) - in the Delhi Act all orders under this section is revisable but under the Bihar Act only order of eviction is revisable-as such in Bihar if there is no order of eviction, revision application is not maintainable - in Bihar, High Courts jurisdiction to entertain arise in cases of order of eviction only whereas under the Delhi Act there is no restriction on power of revision-decision of Supreme Court on Delhi Act is not applicable to Bihar Act. 1986 PLJR 950 - Overruled: AIR 1980 SC 2012 -Distinguished. (Para 32)
Code of Civil Procedure, 1905 - Sections 96 and 100 and Section 14 (8) of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 and Section 25-B (8) of Delhi Rent Control Act, 1958 -
(Per Roy, J.) - whereas under the Delhi Act application for eviction of a tenant is to be filed before the Controller land appeal is provided under the Act, under the Bihar Act the landlord is required to file a regular suit before a competent Civil Court and all decrees passed are appeal able under sections 96 and 100 CPC except in suits on the ground of personal necessity and fixed term tenancy in which the summary procedure under section 14 is followed - in this context, the Supreme Court made contextual interpretation of the sub-section under the Delhi Act which is not in pari materia with the Bihar Act-as such the Supreme Court decision based on the Delhi Act is not applicable to the Bihar Act. 1986 PLJR 950 - Overruled: AIR 1980 SC 2012: (1980) 2 SCC 120-Not applicable; AIR 1985 SC 582, AIR 1987 SC 670, AIR 1987 SC 849 - Referred. (Paras 7, 8 & 15)
Code of Civil Procedure, 1908 - Sections 96 and 100 and Section 14 (8) of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 -
(Per Roy, J.) - for the first time in 1982, revision against an order has been provided only at the instance of the tenant-remedy of landlord under the CPC, i.e., an appeal has been kept in fact - the language of section 14(8) in clear and explicit - there is no ambiguity -Division Bench in Uday Banerjees case does not lay down the correct law - right of appeal so for the tenant is concerned has been taken away under section 14 (8) 1986 PLJR 950-Overruled. (Para 16)
(Per Sohani, CJ. - concurring) - an appeal from a decree dismissing a suit for eviction on ground of personal necessity would be competent because it is not barred and remedy under section 96 CPC is not prohibited - it cannot be said that landlord has no remedy when his suit is dismissed - section 14 (8) is not ambiguous and it cannot be said that object of section will be defeated if the remedy of appeal by landlord under section 96 CPC is not taken away-intention of legislature is very clear in providing revision only against an order of eviction and it is for legislature to bar the remedy of appeal-it is not permissible for the courts to re write section 14 (8) of the Act. AIR 1945 PC 168, AIR 1957 SC 832-Relied Upon. (Paras 30, 31, 34 & 35)
(Per Sinha, J.-concurring) - right of appeal is a statutory right and is a matter of substance and not procedure - whether a right of appeal is taken away or abridged by the statute expressly or by necessary implication can only be gathered from the express language used in the statute - the language of section 14 (B) is significant-it is apparent that the legislature intended to take away the right of appeal only against the order of a recovery of possession and, restricted the right of the tenant to move the High Court in revision the right of appeal vested in the landlord remains untouched - in the event of dismissal of landlords suit on the ground of personal necessity or fixed term tenancy, an appeal shall lie and revision is not maintainable. AIR 1957 SC 540, 1964 SC 993, AIR 1979 SC 1382, AIR 1988 SC 812, (1988) 3 SCC 26, (1989) 4 SCC 550 - Relied Upon; 1984 BLT 218, 1985 PLJR 302-Referred. (Paras 50, 51, 52, 55, 56, 63, 64, 66 & 67)
Bihar Buildings (Lease Rent, & Eviction) Control Act, 1982-Preamble and Sections 14 and 15 -
(Per Sinha, J.) - the Act was enacted to safeguard the interest of the tenant from any unreasonable eviction as well to give them certain benefits and save them from the oppressive acts of the landlord-but certain benefits have also been conferred upon the landlord - sections 11 and 15 tire steps taken by the legislature in that direction. (Paras 41, 42, 45, 47, & 48)
Constitution of India-Article 14 and Section 14 of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 -
(Per Roy, J.) - merely because in a summary procedure section 14 of the Bihar Act, the landlord has got no right of revision and he has to file on appeal and the tenant has the right of revision under section 14 (8) does not make the section ultra vires as the legislature kept in mind to shorten the litigation keeping in view the need of the landlord to use the premises for his own use and occupation-legislature has not acted arbitrarily-Article 14 is not attracted. AIR 1958 SC 538-Relied Upon; AIR 1874 SC 2009, AIR 1980 SC 161-Noticed. (Paras 19, 20, & 22)
(Per Sohani, CJ) - Question left open. AIR 1960 SC 475 - Noticed. (Para 34)
(Per Sinha, J.-concurring) - Article 14 does not forbid reasonable classification and for that purpose even one person or a group of persons can form a class-a speedy and harsher remedy can be provided for by a statute in favour of a class of litigants - whether a classification made in a statute is reasonable or not will have to be determined from the purpose and policy of the Act-special protection under the rent Control legislation would not offend Article 14 of the Constitution-Binod Choudhurys case is not applicable. AIR 1953 SC 401, AIR 1961 SC 1704, AIR 1963 SC 222, AIR 1963 SC 864, AIR 1964 SC 993, AIR 1974 SC 2009, (1980) Supp SCC 7, AIR 1982 SC 781, (1990) I SCJ 9-Relied Upon; AIR 1954 Punj. 254, AIR 1956 Pat 159, AIR 1960 Mad 160, AIR 1990 Pat 90: 1989 PLJR 920-Referred. (Paras 72, 77, 82, 85 & 87)
Code of Civil Procedure, 1908-Sections 96 and 100 and Sections 38 and 39 of Delhi Rent Control Act, 1958 -
(Per Roy, J.) - in the Delhi Act the appellate forum has been prescribed under the Act itself-it excludes sections 96 and 100 CPC - but in the Bihar Act there is no provision of appeal given to the tenant-in that context observations of the Supreme Court in Binod Choudharys case do not apply in so far as the Bihar Act is concerned. (Para 22)
Interpretation of Statutes -
(Per Roy, J.) - normal rule of the interpretation of the statutes is to interpret it literally -courts should not legislate. AIR 1961 SC 1274-Relied Upon. (Para 14)
(Per Sohani, CJ. - concurring) - recourse to the object and policy of the Act or consideration of the mischief and defect which the Act purports to remedy is only permissible when the language is capable of two constructions. AIR 1957 SC 832-Relied upon. (Para 31)
(Per Sinha, J. - concurring) - in interpreting the provisions, the exercise under taken by the court is to make explicit the intention of the legislature which enacted the legislation-it is not for the court to reframe the legislation as the power to legislate have not been conferred on the court - a court can only make a purposeful - interpretation so as to evaluate the intention of the legislature and not to defeat the intention of the legislature wholly or in part. 1922 (1) AC 1, AIR 1965 SC 401, AIR 1965 SC 577, (1976) 4 SCC 464, AIR 1977 SC 2257, AIR 1977 SC 2328, (1986) 4 SCC 746, 1987 BLJR 477: 1987 PUR (SC) 47, AIR 1988 SC 812, AIR 1988 SC 1875, AIR 1988 SC 2239, AIR 1988 SC 2037, 1989 BBCJ 54 (SC), AIR 1990 763 - Relied Upon. (Paras 54 to 59)
Precedent - (Per Sinha, J.) - a judgment rendered ignoring the provisions of law must be held to be in per curium and is not binding upon another Bench. (1988) 1 SCC 101, (1988) 1 SCC 602, (1989) 2 SCC 754, (1990) 2 SCC 72-Relied Upon. (Paras 89 to 91)
S.Roy, J.
1. The civil revision application has been filed by the plaintiffs-petitioners under the Proviso to Sub-sec. (8) of Sec. 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1952 (the Bihar Act) against the judgment and decree of the court below by which the suit for eviction of the defendant-opposite party on the ground of personal necessity has been dismissed. At the time of admission of the civil revision application a learned Single Judge (B.P. Singh, J.) noticed the judgment rendered in Shri Udai Banerjee V/s. Shri P.R. Dutta, 1986 0 PLJR 950 and also noticed the language of the aforesaid Proviso and ordered that the case be heard by a Division Bench. When the matter was listed before the Division Bench, the correctness of the judgment in Shri Udai Banerjee was doubted and it was ordered that the case be heard by a larger Bench. The matter was, therefore, listed before this Bench.
2. In the plaint it was stated that the opposite party was carrying on business in the suit premises as a tenant under the petitioners No. 1 and 5 have learnt tailoring and the building in question was required for carrying on tailoring business jointly by them. The petitioners required the building reasonably and in good faith for their use and occupation. In the written statement, inter alia, it was stated that the petitioners had already filed Title Suit No. 34 of 1985 for the eviction of the opposite party on the same grounds as prayed for in this suit. By the amendment of the written statement, the opposite party was allowed to introduce the fact that petitioner No. 1 has opened a tailoring shop just in front of the suit premises in his own building and doing his tailoring business there with the assistance of petitioner No. 5.
3. The trial court held that there was relationship of landlord and tenant between the parties. It further held that petitioner Nos. 1 and 5 were trained tailors. It accepted the case of the opposite party that petitioner Nos. 1 and 5 were already running a tailoring shop and, they, therefore, did not require the suit building reasonably and in good faith for their own use and occupation. The suit was dismissed. The plaintiffs have filed this civil revision application.
4. When the application was taken up for hearing, Mr. R.K. Merathia, learned Counsel appearing on behalf of the opposite party submitted that in view of the language of Proviso to Sub-sec. (8) of Sec. 14 of the Act, the civil revision application at the instance of the petitioners, plaintiffs in the court below, was not maintainable. Mr. Pradeep Modi, learned Counsel appearing on behalf of the petitioners, submitted that the provision for filing civil revision application under the Bihar Act is similar to the provision in Delhi Rent Control Act, 1958 (the Delhi Act), f his question was considered in Shri Udai Banerjee (supra) and the Division Bench held that the language of Section 25B(8) of the Delhi Act is in pari materia with Sec. 14(8) of the Bihar Act. The Division Bench held that as the language of both the sections is in pari materia, the interpretation as made by the Supreme Court in Vinod Kumar Chowdhury V/s. Smt. Narain Devi Taneja -- : corresponding to -- must be followed for interpreting Sec. 14(8) of the Bihar Act. It held that a civil revision application under Sec. 14(8) of the Act at the instance of plaintiff whose suit has been dismissed is maintainable.
5. Sec. 14(8) of the Bihar Act reads as follows:
14. (8). No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section:
Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. Sec. 25B (8) of the Delhi Act reads as foll
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