CASE NO.:
Appeal (civil) 3406 of 1998
PETITIONER:
RAJENDRA TIWARY
Vs.
RESPONDENT:
BASUDEO PRASAD & ANR.
DATE OF JUDGMENT: 09/11/2001
BENCH:
S.S.N.Quadri, S.N.Phukan
JUDGMENT:
Syed Shah Mohammed Quadri, J.
This appeal, by special leave, is from the judgment and
order of the High Court of Judicature at Patna in Second Appeal
No.304 of 1990 passed on September 09, 1997.
The parties are referred to as they are arrayed in the trial
court. The respondents-plaintiffs filed Title Suit No.167 of
1982 (12 of 1985) for eviction of the appellant-defendant from
holding No.1600 (new) (old holding No.95) in Ward No.1
having an area of 7-1/2 dhurs, Muhalla Waya Bazar, P.S. Siwan
town P.S.No.231, Siwan, Bihar (for short, the suit premises)
on three grounds -- (1) default of the defendant in payment of
rent from August 14, 1981 under clause (d) of sub-section (1)
of Section 11; (2) reasonable personal requirement in good faith
for the sons of the plaintiffs under clause (c) of sub-section (1)
of Section 11, and (3) damage to the suit premises under clause
(b) of sub-section (1) of Section 11 of The Bihar Building
(Lease, Rent & Eviction) Control Act, 1982 (for short, the
Act). The plaintiffs averred that they purchased the suit
premises under three registered sale deeds of March 17, 1981,
April 09, 1981 and April 14, 1981 from one Kedar Nath Sinha
and immediately thereafter let them out to the defendant on
monthly rent of Rs.300/-; the defendant did not pay the rent
from the date of the commencement of the tenancy. The
plaintiffs have six sons; three of them are major. The plaintiffs
wanted to set up their children in business as they are
unemployed; they, therefore, require the suit premises in good
faith. The defendant contested the suit denying that he took the
suit premises on rent from the plaintiffs. He stated that he had
taken the suit premises on rent from the said Kedar Nath Sinha
about 33 years back. He, however, alleged that he entered into
an agreement for purchase of the suit premises and a
Mahadnama (agreement for sale) was executed by the said
Kedar Nath Sinha in his favour on September 14, 1980 and
from that date he has been in possession as owner of the suit
premises. The defendant also filed Title Suit No.232 of 1983 in
the Court of Sub-Judge, Siwan praying the Court to grant
specific performance of the said Mahadnama dated September
14, 1980. The said suit is pending. He denied that the ground
of personal requirement of the plaintiffs was either reasonable
or bonafide.
On April 30, 1985 the trial court after appreciating the
evidence on record dismissed the suit for eviction holding that
there was no relationship of landlord and tenant between the
plaintiffs and the defendant; it found that the plaintiffs had title
to the suit premises; however, finding was recorded on the
question of reasonable personal requirement in favour of the
plaintiffs. Against the judgment of the trial court, the plaintiffs
filed Title Appeal No.96 of 1985 in the court of 5th Addl.
District Judge, Siwan. On May 26, 1990 the appellate court
affirmed the judgment of the trial court and dismissed the
appeal. The plaintiffs then agitated their claim in Second
Appeal No.304 of 1990 before the High Court of Judicature at
Patna. On September 09, 1997 the High Court allowed the
appeal taking the view that an equitable decree of eviction
could be passed against the defendant on the basis of the title of
the plaintiffs and remanded the case to the first appellate court
on the ground that it did not record any finding on the question
of title of the parties. That judgment of the High Court is
brought under challenge in this appeal by the defendant.
Mr.P.S.Misra, the learned senior counsel appearing for
defendant, contended that provisions of Order VII Rule 7 of the
Code of Civil Procedure would not be attracted to the suit as the
court was exercising limited jurisdiction under the Act. Mr.
Misra argued that in a suit for eviction under the Act the
question of title to the suit premises could not be decided and
that had to be done by a civil court in its ordinary jurisdiction
and, therefore, the High Court erred in law in remanding the
case to the first appellate court for deciding the question of title
of the plaintiffs and passing an equitable decree for eviction of
the defendant.
Ms.Asha Jain Madan, the learned counsel for the
plaintiffs, argued that admittedly the suit premises belonged to
the said Kedar Nath Sinha and the plaintiffs purchased the same
under three registered sale deeds from him; they had, therefore,
prima facie title and as admittedly the said Kedar Nath Sinha
had let out the same to the defendant, an equitable decree for
his eviction ought to have been passed by the courts below.
Inasmuch as the trial court on the basis of the sale deeds and
statement of the vendor of the plaintiffs recorded the finding
that the plaintiffs were the owner but the first appellate court
did not go into that question, the High Court was right in
directing the first appellate court to record a finding as to the
title to the suit premises. Once the plaintiffs established their
title to the suit premises, argued Ms.Madan, even if the
defendant was held not to be the tenant, an equitable decree
could always be passed against the defendant for eviction of the
suit premises.
On the above contentions the question that arises for
consideration is : whether on the facts and the circumstances of
the case the High Court is right in law in holding that an
equitable decree for eviction of the defendant can be passed
under Order VII Rule 7 of C.P.C. and remanding the case to the
first appellate court for recording its finding on the question of
title of the parties to the suit premises and for passing an
equitable decree of eviction against the defendant if the
plaintiffs were found to have title thereto.
It is evident that while dealing with the suit of the
plaintiffs for eviction of the defendant from the suit premises
under clauses (c) and (d) of sub-section (1) of Section 11 of the
Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The
sine qua non for granting the relief in the suit, under the Act, is
that between the plaintiffs and the defendant the relationship of
landlord and tenant should exist. The scope of the enquiry
before the courts was limited to the question : as to whether the
grounds for eviction of the defendant have been made out under
the Act. The question of title of the parties to the suit premises
is not relevant having regard to the width of the definition of
the terms landlord and tenant in clauses (f) and (h),
respectively, of Section 2 of the Act.
Inasmuch as both the trial court as well as the first
appellate court found that the relationship of landlord and
tenant did not exist between the plaintiffs and the defendant,
further enquiry into the title of the parties, having regard to the
nature of the suit and jurisdiction the court, was unwarranted.
As the High Court remanded the case to the first
appellate court to decide the question of title of the parties and
grant a decree under Order VII Rule 7, it will be necessary to
quote the said provision here:
R.7. Relief to be specifically stated.
Every plaint shall state specifically the relief
which the plaintiff claims either simply or in the
alternative and it shall not be necessary to ask for
general or other relief which may always be given
as the Court may think just to the same extent as if
it had been asked for. And the same rule shall
apply to any relief claimed by the defendant in his
written statement.
A plain reading of Order VII Rule 7 makes it clear that it
is primarily concerned with drafting of relief in a plaint. It is in
three parts -- the first part directs that the relief claimed by the
plaintiff simply or in the alternative shall be stated specifically.
It incorporates in the second part the well settled principle that
it shall not be necessary to ask for general or other relief which
may always be given as the Court may think just on the facts of
the case to the same extent as if it has been asked for. The third
part says that in regard to any relief claimed by the defendant in
his written statement, the same rule shall apply.
In Firm Sriniwas Bam Kumar vs. Mahabir Prasad &
Ors. [A.I.R. 1951 S.C. 177] it is laid down by this Court :
Ordinarily, the Court cannot grant relief to the
plaintiff on a case for which there was no
foundation in the pleadings & which the other side
was not called upon or had an opportunity to meet.
But when the alternative case, which the plaintiff
could have made, was not only admitted by the
defendant in his written statement but was
expressly put forward as an answer to the claim
which the plaintiff made in the suit, there would be
nothing improper in giving the plaintiff a decree
upon the case which the defendant himself makes.
A demand of the plaintiff based on the defendants
own plea cannot possibly be regarded with surprise
by the latter & no question of adducing evidence
on these facts would arise when they were
expressly admitted by the defendant in his
pleadings. In such circumstances, when no
injustice can possibly result to the defendant, it
may not be proper to drive the plaintiff to a
separate suit.
In that case the plaintiff filed the suit for specific
performance of the contract for sale. He alleged that he paid
part of the consideration under the contract to the defendant.
The defendant denied the execution of the contract. However,
he pleaded that he took money from the plaintiff as a loan. The
plaintiff failed to prove the contract for sale though the plaintiff
did not claim alternative relief for recovery of the amount paid
under the contract. The Court passed a decree for recovery of
the amount alleged to have been taken by the defendant as a
loan under Order VII Rule 7.
In Bhagwati Prasad Vs. Chandramaul [A.I.R. 1966 S.C.
735] the plaintiff laid the suit for ejectment of the defendant on
the ground that he let out the building to the defendant on rent
in different portions on completion of construction of each
portion. The defendant pleaded that he constructed the house
on the land which belong to the plaintiff. The agreement
between them was that he would remain in possession of the
house until the amount spent by him in construction the house
would be repaid by the plaintiff. The agreement of tenancy
pleaded by the plaintiff and the case set up by the defendant
were disbelieved by the trial court; nonetheless the trial court
held that there existed the relationship of landlord and tenant,
fixed a reasonable rent and decreed the suit for ejectment of the
defendant and also for recovery of the rent at the rate fixed by
it. The High Court set aside the decree of the trial court with
regard to the agreement of tenancy but confirmed the decree for
ejectment of the defendant. On appeal to this Court on a
certificate granted by the High Court, Gajendragadkar, C.J.
speaking for a four-Judge Bench observed :
The general rule no doubt is that the relief should
be founded on pleadings made by the parties. But
where the substantial matters relating to the title of
both parties to the suit are touched, though
indirectly or even obscurely, in the issues, and
evidence has been led about them, then the
argument that a particular matter was not expressly
taken in the pleadings would be purely formal and
technical and cannot succeed in every case. What
the Court has to consider in dealing with such an
objection is did the parties know that the matter in
question was involved in the trial, and did they
lead evidence about it? If it appears that the
parties did not know that the matter was in issue at
the trial and one of them has had no opportunity to
lead evidence in respect of it, that undoubtedly
would be a different matter. To allow one party to
rely upon a matter in respect of which the other
party did not lead evidence and has had no
opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to
one party, the Court cannot do injustice to
another.
Where the relief prayed for in the suit is a larger relief
and if no case is made out for granting the same but the facts, as
established, justify granting of a smaller relief, Order VII Rule
7 permits granting of such a relief to the parties. However,
under the said provisions a relief larger than the one claimed by
the plaintiff in the suit cannot be granted.
These are cases where the courts which tried the suits
were ordinary civil court having jurisdiction to grant alternative
relief and pass decree under Order VII Rule 7. A court of Rent
Controller having limited jurisdiction to try suits on grounds
specified in the special Act obviously does not have jurisdiction
of the ordinary civil court and therefore cannot pass a decree for
eviction of the defendant on a ground other than the one
specified in the Act. If, however, the alternative relief is
permissible within the ambit of the Act, the position would be
different.
In this case the reason for denial of the relief to the
plaintiffs by the trial court and the appellate court is that the
very foundation of the suit, namely, the plaintiffs are the
landlords and the defendant is the tenant, has been concurrently
found to be not established. In any event inquiry into title of
the plaintiffs is beyond the scope of the court exercising
jurisdiction under the Act. That being the position the
impugned order of the High Court remanding the case to the
first appellate court for recording finding on the question of title
of the parties, is unwarranted and unsustainable. Further, as
pointed out above, in such a case the provisions of Order VII
Rule 7 are not attracted. For these reasons the aforementioned
cases are of no assistance to the defendant. In this view of the
matter we cannot but hold that the High Court erred in
remanding the case to the first appellate court for determination
of the title of the parties to the suit premises and for granting
the decree under Order VII Rule 7.
However, we make it clear that this judgment does not
preclude the plaintiffs from filing a suit for declaration of title
and for recovery of the possession of the suit premises against
the defendant. If such a suit is filed within three months from
today we direct that the same shall be tried along with suit filed
by the defendant, Title Suit No.232/1983, in the court of Sub-
Judge, Siwan (Exbt.11) for specific performance of the contract
against the said Kedar Nath Sinha and the plaintiffs.
In the result the judgment of the High Court under
challenge is set aside. The suit of the plaintiffs (respondents) is
dismissed. The appeal of the defendant (appellant) is allowed
accordingly but in the circumstances of the case without costs.
Appeal (civil) 3406 of 1998
PETITIONER:
RAJENDRA TIWARY
Vs.
RESPONDENT:
BASUDEO PRASAD & ANR.
DATE OF JUDGMENT: 09/11/2001
BENCH:
S.S.N.Quadri, S.N.Phukan
JUDGMENT:
Syed Shah Mohammed Quadri, J.
This appeal, by special leave, is from the judgment and
order of the High Court of Judicature at Patna in Second Appeal
No.304 of 1990 passed on September 09, 1997.
The parties are referred to as they are arrayed in the trial
court. The respondents-plaintiffs filed Title Suit No.167 of
1982 (12 of 1985) for eviction of the appellant-defendant from
holding No.1600 (new) (old holding No.95) in Ward No.1
having an area of 7-1/2 dhurs, Muhalla Waya Bazar, P.S. Siwan
town P.S.No.231, Siwan, Bihar (for short, the suit premises)
on three grounds -- (1) default of the defendant in payment of
rent from August 14, 1981 under clause (d) of sub-section (1)
of Section 11; (2) reasonable personal requirement in good faith
for the sons of the plaintiffs under clause (c) of sub-section (1)
of Section 11, and (3) damage to the suit premises under clause
(b) of sub-section (1) of Section 11 of The Bihar Building
(Lease, Rent & Eviction) Control Act, 1982 (for short, the
Act). The plaintiffs averred that they purchased the suit
premises under three registered sale deeds of March 17, 1981,
April 09, 1981 and April 14, 1981 from one Kedar Nath Sinha
and immediately thereafter let them out to the defendant on
monthly rent of Rs.300/-; the defendant did not pay the rent
from the date of the commencement of the tenancy. The
plaintiffs have six sons; three of them are major. The plaintiffs
wanted to set up their children in business as they are
unemployed; they, therefore, require the suit premises in good
faith. The defendant contested the suit denying that he took the
suit premises on rent from the plaintiffs. He stated that he had
taken the suit premises on rent from the said Kedar Nath Sinha
about 33 years back. He, however, alleged that he entered into
an agreement for purchase of the suit premises and a
Mahadnama (agreement for sale) was executed by the said
Kedar Nath Sinha in his favour on September 14, 1980 and
from that date he has been in possession as owner of the suit
premises. The defendant also filed Title Suit No.232 of 1983 in
the Court of Sub-Judge, Siwan praying the Court to grant
specific performance of the said Mahadnama dated September
14, 1980. The said suit is pending. He denied that the ground
of personal requirement of the plaintiffs was either reasonable
or bonafide.
On April 30, 1985 the trial court after appreciating the
evidence on record dismissed the suit for eviction holding that
there was no relationship of landlord and tenant between the
plaintiffs and the defendant; it found that the plaintiffs had title
to the suit premises; however, finding was recorded on the
question of reasonable personal requirement in favour of the
plaintiffs. Against the judgment of the trial court, the plaintiffs
filed Title Appeal No.96 of 1985 in the court of 5th Addl.
District Judge, Siwan. On May 26, 1990 the appellate court
affirmed the judgment of the trial court and dismissed the
appeal. The plaintiffs then agitated their claim in Second
Appeal No.304 of 1990 before the High Court of Judicature at
Patna. On September 09, 1997 the High Court allowed the
appeal taking the view that an equitable decree of eviction
could be passed against the defendant on the basis of the title of
the plaintiffs and remanded the case to the first appellate court
on the ground that it did not record any finding on the question
of title of the parties. That judgment of the High Court is
brought under challenge in this appeal by the defendant.
Mr.P.S.Misra, the learned senior counsel appearing for
defendant, contended that provisions of Order VII Rule 7 of the
Code of Civil Procedure would not be attracted to the suit as the
court was exercising limited jurisdiction under the Act. Mr.
Misra argued that in a suit for eviction under the Act the
question of title to the suit premises could not be decided and
that had to be done by a civil court in its ordinary jurisdiction
and, therefore, the High Court erred in law in remanding the
case to the first appellate court for deciding the question of title
of the plaintiffs and passing an equitable decree for eviction of
the defendant.
Ms.Asha Jain Madan, the learned counsel for the
plaintiffs, argued that admittedly the suit premises belonged to
the said Kedar Nath Sinha and the plaintiffs purchased the same
under three registered sale deeds from him; they had, therefore,
prima facie title and as admittedly the said Kedar Nath Sinha
had let out the same to the defendant, an equitable decree for
his eviction ought to have been passed by the courts below.
Inasmuch as the trial court on the basis of the sale deeds and
statement of the vendor of the plaintiffs recorded the finding
that the plaintiffs were the owner but the first appellate court
did not go into that question, the High Court was right in
directing the first appellate court to record a finding as to the
title to the suit premises. Once the plaintiffs established their
title to the suit premises, argued Ms.Madan, even if the
defendant was held not to be the tenant, an equitable decree
could always be passed against the defendant for eviction of the
suit premises.
On the above contentions the question that arises for
consideration is : whether on the facts and the circumstances of
the case the High Court is right in law in holding that an
equitable decree for eviction of the defendant can be passed
under Order VII Rule 7 of C.P.C. and remanding the case to the
first appellate court for recording its finding on the question of
title of the parties to the suit premises and for passing an
equitable decree of eviction against the defendant if the
plaintiffs were found to have title thereto.
It is evident that while dealing with the suit of the
plaintiffs for eviction of the defendant from the suit premises
under clauses (c) and (d) of sub-section (1) of Section 11 of the
Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The
sine qua non for granting the relief in the suit, under the Act, is
that between the plaintiffs and the defendant the relationship of
landlord and tenant should exist. The scope of the enquiry
before the courts was limited to the question : as to whether the
grounds for eviction of the defendant have been made out under
the Act. The question of title of the parties to the suit premises
is not relevant having regard to the width of the definition of
the terms landlord and tenant in clauses (f) and (h),
respectively, of Section 2 of the Act.
Inasmuch as both the trial court as well as the first
appellate court found that the relationship of landlord and
tenant did not exist between the plaintiffs and the defendant,
further enquiry into the title of the parties, having regard to the
nature of the suit and jurisdiction the court, was unwarranted.
As the High Court remanded the case to the first
appellate court to decide the question of title of the parties and
grant a decree under Order VII Rule 7, it will be necessary to
quote the said provision here:
R.7. Relief to be specifically stated.
Every plaint shall state specifically the relief
which the plaintiff claims either simply or in the
alternative and it shall not be necessary to ask for
general or other relief which may always be given
as the Court may think just to the same extent as if
it had been asked for. And the same rule shall
apply to any relief claimed by the defendant in his
written statement.
A plain reading of Order VII Rule 7 makes it clear that it
is primarily concerned with drafting of relief in a plaint. It is in
three parts -- the first part directs that the relief claimed by the
plaintiff simply or in the alternative shall be stated specifically.
It incorporates in the second part the well settled principle that
it shall not be necessary to ask for general or other relief which
may always be given as the Court may think just on the facts of
the case to the same extent as if it has been asked for. The third
part says that in regard to any relief claimed by the defendant in
his written statement, the same rule shall apply.
In Firm Sriniwas Bam Kumar vs. Mahabir Prasad &
Ors. [A.I.R. 1951 S.C. 177] it is laid down by this Court :
Ordinarily, the Court cannot grant relief to the
plaintiff on a case for which there was no
foundation in the pleadings & which the other side
was not called upon or had an opportunity to meet.
But when the alternative case, which the plaintiff
could have made, was not only admitted by the
defendant in his written statement but was
expressly put forward as an answer to the claim
which the plaintiff made in the suit, there would be
nothing improper in giving the plaintiff a decree
upon the case which the defendant himself makes.
A demand of the plaintiff based on the defendants
own plea cannot possibly be regarded with surprise
by the latter & no question of adducing evidence
on these facts would arise when they were
expressly admitted by the defendant in his
pleadings. In such circumstances, when no
injustice can possibly result to the defendant, it
may not be proper to drive the plaintiff to a
separate suit.
In that case the plaintiff filed the suit for specific
performance of the contract for sale. He alleged that he paid
part of the consideration under the contract to the defendant.
The defendant denied the execution of the contract. However,
he pleaded that he took money from the plaintiff as a loan. The
plaintiff failed to prove the contract for sale though the plaintiff
did not claim alternative relief for recovery of the amount paid
under the contract. The Court passed a decree for recovery of
the amount alleged to have been taken by the defendant as a
loan under Order VII Rule 7.
In Bhagwati Prasad Vs. Chandramaul [A.I.R. 1966 S.C.
735] the plaintiff laid the suit for ejectment of the defendant on
the ground that he let out the building to the defendant on rent
in different portions on completion of construction of each
portion. The defendant pleaded that he constructed the house
on the land which belong to the plaintiff. The agreement
between them was that he would remain in possession of the
house until the amount spent by him in construction the house
would be repaid by the plaintiff. The agreement of tenancy
pleaded by the plaintiff and the case set up by the defendant
were disbelieved by the trial court; nonetheless the trial court
held that there existed the relationship of landlord and tenant,
fixed a reasonable rent and decreed the suit for ejectment of the
defendant and also for recovery of the rent at the rate fixed by
it. The High Court set aside the decree of the trial court with
regard to the agreement of tenancy but confirmed the decree for
ejectment of the defendant. On appeal to this Court on a
certificate granted by the High Court, Gajendragadkar, C.J.
speaking for a four-Judge Bench observed :
The general rule no doubt is that the relief should
be founded on pleadings made by the parties. But
where the substantial matters relating to the title of
both parties to the suit are touched, though
indirectly or even obscurely, in the issues, and
evidence has been led about them, then the
argument that a particular matter was not expressly
taken in the pleadings would be purely formal and
technical and cannot succeed in every case. What
the Court has to consider in dealing with such an
objection is did the parties know that the matter in
question was involved in the trial, and did they
lead evidence about it? If it appears that the
parties did not know that the matter was in issue at
the trial and one of them has had no opportunity to
lead evidence in respect of it, that undoubtedly
would be a different matter. To allow one party to
rely upon a matter in respect of which the other
party did not lead evidence and has had no
opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to
one party, the Court cannot do injustice to
another.
Where the relief prayed for in the suit is a larger relief
and if no case is made out for granting the same but the facts, as
established, justify granting of a smaller relief, Order VII Rule
7 permits granting of such a relief to the parties. However,
under the said provisions a relief larger than the one claimed by
the plaintiff in the suit cannot be granted.
These are cases where the courts which tried the suits
were ordinary civil court having jurisdiction to grant alternative
relief and pass decree under Order VII Rule 7. A court of Rent
Controller having limited jurisdiction to try suits on grounds
specified in the special Act obviously does not have jurisdiction
of the ordinary civil court and therefore cannot pass a decree for
eviction of the defendant on a ground other than the one
specified in the Act. If, however, the alternative relief is
permissible within the ambit of the Act, the position would be
different.
In this case the reason for denial of the relief to the
plaintiffs by the trial court and the appellate court is that the
very foundation of the suit, namely, the plaintiffs are the
landlords and the defendant is the tenant, has been concurrently
found to be not established. In any event inquiry into title of
the plaintiffs is beyond the scope of the court exercising
jurisdiction under the Act. That being the position the
impugned order of the High Court remanding the case to the
first appellate court for recording finding on the question of title
of the parties, is unwarranted and unsustainable. Further, as
pointed out above, in such a case the provisions of Order VII
Rule 7 are not attracted. For these reasons the aforementioned
cases are of no assistance to the defendant. In this view of the
matter we cannot but hold that the High Court erred in
remanding the case to the first appellate court for determination
of the title of the parties to the suit premises and for granting
the decree under Order VII Rule 7.
However, we make it clear that this judgment does not
preclude the plaintiffs from filing a suit for declaration of title
and for recovery of the possession of the suit premises against
the defendant. If such a suit is filed within three months from
today we direct that the same shall be tried along with suit filed
by the defendant, Title Suit No.232/1983, in the court of Sub-
Judge, Siwan (Exbt.11) for specific performance of the contract
against the said Kedar Nath Sinha and the plaintiffs.
In the result the judgment of the High Court under
challenge is set aside. The suit of the plaintiffs (respondents) is
dismissed. The appeal of the defendant (appellant) is allowed
accordingly but in the circumstances of the case without costs.
