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PATNA HIGH COURT
S. ROY, S.B. SINHA & R.N. SAHAY, JJ.
Ladu Gopal Kedia - Petitioner
Versus
Bibi Jaibunissa - Opp. Party
C.R. No. 498 of 1990 (R)
Decided on : 9.4.91
(Per S. Roy, J.)-When a right has accrued to the plaintiff to file a suit on the ground of personal necessity or expiry of the period of special lease together with one or other grounds mentioned in sec. 11(1) and includes all those grounds, the procedure prescribed in the code has to be followed. (Para 56)
Bihar Buildings (L.R. & E.) Control Act, 1982, sec. 14 & O. 2 R. 6 of the C.P.C. (Per S.B. Sinha, J,)-the exercise of power to order separate trials would depend upon the facts find circumstances of each case and the privilege is that of court-the object of provisions of O. 2 R. 6. if read alogwith other provisions, is to avoid multiplicity of the proceeding as far as possible-Law bans in favour of decision of suit on all the issues together subject to exception contained in some of the provisions of the Code-reading the provisions of sec. 14 it is evident that the special procedure hare to be taken recourse to only if the conditions precedent there for exist-the special procedure laid down therein shal1 be taken recourse to from the time the suit is instituted-Provisions are directory but meant to be followed-the provisions are more stringet and should be taken resourse to by confirming to a ground envisaged under clause 'c' or 'e' of sec. 11(1)-the question of taking recourse to special procedure would not arise only because at a later stage the plaintiff's wishes that the suit may be decided an preliminary issue-the section has been enacted for the benefit of landlord only-1985 PLJR 490 approved, 1984 BBCJ 396, C.A. 1419/85 decided on 14.2.86 & 1989 BBCJ 706 over ruled. AIR 1979 SC 1745, AIR 1980 SC 161, ref. (Paras 27, 28, 32, 33, 35, 36, 38, 39, 40, 42 & 43)
(Per S. Roy, J.)-Court hearing a suit for eviction on the ground of personal necessity or expiry of lease, the practice and. procedure of a court of a small causes shall have to be fol1owed-the procedure of order XIV is not to be followed-if order XIV does not apply no question of framing any issue in a suit where procedure of sec. 14 is to be followed-plaintiff must pray for eviction on the ground stated in sec. 11(1)(c) & (e)-eviction prayed on other grounds also in the suit, the court shall have to follow the procedure laid down in the Code. (Paras 53, 54, 56 & 57)
Civil Procedure Code, 1976, sec. 2(2), and Art. 136 & 142 of the Constitution of India-Supreme Court allowing appeal by consent of parties and setting aside the order of High Court-effect of-an appeal is continuation of the original proceeding and a stage in suit itself-Art. 142 confers upon Supreme Court to pass any order for doing complete justice in any cause or matter pending before it and such order is enforceable-decision of the Supreme Court could not have been ignored as being a consent order.
(Paras 12, 13, 15, 19, 20 & 21)
S. B. Sinha, J.
The question as to whether in an eviction suit filed by a landlord on the ground of his personal necessity expiry of the period of lease and also on any other grounds as envisaged under section 11(1) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the issue relating to the personal necessity to the landlord expiry of the period of lease, can be decided as a preliminary issue upon following the procedure laid down under Section 14 thereof or not, is the question involved in this application.
2. The fact of the matter lies in a very narrow compass. The plaintiff opposite party filed Eviction Suit no. 5/89 against the petitioner inter alia on the ground that she requires the suit premises for starting a business by her eldest son who had been sitting idle as well as on the ground that the petitioner has defaulted in payment of rent from November, 1988 to January, 1989.
3. The petitioner appeared in the said suit and filed written statement denying and disputing the allegation made in the plaint. According to the petitioners, a sum of Rs. 5000/- was spent for renovation of the suit premises which was agrees to be refunded and/or adjusted towards future rent. The rate of monthly rent was also disputed by the defendant which, according to them, was Rs. 140/- and not Rs. 500/- as claimed by the opposite party.
So far as the ground of personal necessity of the plaintiff is concerned, it was contended that the purported need is not bonafide and genuine as the plaintiff has inducted one Md. Manir as a monthly tenant in a premises having almost similar accommodation and which is situated on the northern side of the suit premises. In the said situation, the plaintiff filed an application praying therein that the suit be disposed of upon determination of the issue of personal necessity alone.
4. The defendant/petitioner filed a rejoinder to the said application stating therein that as in the said suit besides the ground of personal necessity the plaintiffs have also sought for a decree for eviction for realisation of arrears of rent as also on the ground that the petitioner is a defaulter, all the issues should be decided together. The defendant further contended that as he has also questioned his signature on the counter-foil of the rent receipts, the same should also be considered.
5. By an order dated 17.5.1990, the learned court below directed that the issue of personal necessity would be decided at the first instance. It was further directed that as the defendant has denied his signature on the counter-foild of the rent receipts and in view of the fact that the plaintiff had also prayed for a decree for arrears of rent, the disputed signatures of the defendants would be sent to a handwriting expert for comparison.
6. The defendant deposited the costs of the hand-writing expert and filed another application stating that as the suit is not mature for hearing the court should decide all issues framed in the suit together. By reason of the impugned order dated 19.7.1990, the learned court below in view of a decision of this Court in Bireshwar Chakavorty vs. union of India and others, reported in 1989 B.B.C.J. 706 directed that the issue of personal necessiy shall be decided as a preliminary issue in terms of its earlier order dated 17.5.1990.
7. Before the learned court below, the defendant/petitioner relied upon Major S.S. Khanna Vs. Brig. F.J. Dillon reported in AIR 1964 SC 497 and in M/s. Basti Ram Roop Chand Vs. M/s. Radhey Shyam Gulab Chand (AIR 1973 Allahabad 499) which are authorities for the proposition that normally all the issues should be tried together. The learned court below, however did not distinguish the said decisions.
8. Section 11 of the said Act, prohibits eviction of a tenant except in execution of a decree passed by the court on one or more of the grounds mentioned therein. One of grounds as contained in clause (c) of section 11(1) of the said Act, for eviction of a tenant in term
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