Tiwary Vs. Basudeo Prasad & Anr  Insc 609 (9 November 2001)
S.N.Phukan Syed Shah Mohammed Quadri, J.
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,
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 –
of the defendant in payment of rent from August 14, 1981 under clause (d) of sub-section (1)
of Section 11;
personal requirement in good faith for the sons of the plaintiffs under clause
(c) of sub-section (1) of Section 11, and
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
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.
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 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.
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.
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.
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.
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.
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.
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:
Relief to be specifically stated.
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.
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.
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.
Firm Sriniwas Bam Kumar vs. Mahabir Prasad & Ors. [A.I.R. 1951 S.C. 177] it
is laid down by this Court :
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.
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.
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.
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.
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.
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.
for a four-Judge Bench observed :
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.
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.
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.
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
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.
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