HARI NANDAN MISTRY v. JAI NANDAN MISTRY & Ors.

defendant-tenant should be allowed. Counsel for the petitioner submits that while it is true that the opposite party in written statement had denied the relationship of landlord and tenant and the suit was proceeding on the basis of such averments made after settlement of issues, a belated application after two years of filing of the written statement came to be filed by the defendant, tenant for setting up a counter claim under Order VIII Rule 6A and the Court below unfortunately had allowed the same without taking into consideration that the suit in question was pure and simple eviction suit and that 2 too on the ground of personal necessity under Section 14 of the Bihar Building Control Act (hereinafter referred to as the “B.B.C. Act”). He has in this context, also referred to and relied on judgments of this Court in the case of Nirmal Prasad Yadav & Ors. Vs. Kapildeo Prasad, 1999(2)PLJR 712 and also in the case of Md. Idris vs. Om Prakash Fitkaribal & Anr. 2000(1) PLJR 280 to buttress his submission that in an eviction suit filed by the landlord a counter claim of the tenant on the issue of title, cannot be allowed as a matter of course. On the other hand, counsel for the opposite party with reference to the impugned order has submitted that such counter claim was rightly allowed as there was a clear case of parallel title being claimed by the tenant, opposite party, which was not only in the interest of justice but was also to avoid multiplicity of litigation. He has also relied on certain observation in paragraph No.11 of the judgment of this Court in the case of Md. Idris (supra). Having considered the rival contention on behalf of the parties, this Court in that view in the first part of the impugned order, the finding of the Court below to the effect that in view of the clear denial of relationship of landlord and tenant between the petitioner and the opposite party the question of title had to be gone into even for deciding the eviction suit filed by the petitioner cannot be faulted. 3 The opposite party in fact in his written statement had already taken all such plea with regard to denying the title of the petitioner-landlord and, therefore, an issue with regard to his title even by way of an incidental issue was required to be gone into and decided. Thus, the first part of the impugned order of the Court below is upheld. However, the second part of the impugned order allowing counter claim on behalf of the opposite party in view of the law laid down by this Court in the case of Nirmal Prasad Yadav, (supra) cannot be upheld. The reasons are quite obvious. The petitioner-plaintiff landlord has filed a suit for eviction and that by itself cannot be converted into a title suit at the behest of the opposite party defendant- tenant. Though the question of title may be gone into incidentally but defendant-opposite party cannot as a matter of right claim that an eviction suit filed under Section 14 of the B.B.C.Act should be converted into a regular title suit. This aspect of the matter was decided in the case of Nirmal Prasad Yadav (supra) wherein this Court had held as follows:- “The present suit is for eviction only on the ground of personal necessity. It was not filed on any other ground. The trial Court has to follow the practice and procedure of a Provincial Small Cause Court in terms of 4 Section 14(7) of the Act. Defendants in view of Section 14(8) have no right of appeal or Second Appeal as against a decree for eviction passed in the suit. It is well settled that in a suit under Section 14 of the Act, complicated question of title of the parties cannot be decided and the suit is decided in a summary manner under the provisions of Provincial Small Cause Courts Act. However, there may be a situation in which the defendant despite having title in the property may lose a suit for eviction filed under Section 14 of the Act, but decision in such suit is not to operate as res-judicata in a properly constituted suit between the parties declaration of title. In my opinion, the remedy to a party- defendant claiming his own title and denying the plaintiff’s title over the suit property in a suit for eviction under Section 14 is to file a regular suit for title. In such circumstance, counter claims under Order 8 Rule 6A of the code relating to title by defendant in his written statement in a suit under Section 14 of the Act cannot be entertained and decided therein”. 5 In that view of the matter the ground for allowing a counter claim in the eviction suit has to be confined to a very narrow compass. In the case of Md. Idris(supra) an observation to this effect in paragraph No. 11 which surprisingly was relied by the counsel for the opposite party, far from supporting him is actually in favour of the petitioner inasmuch as this Court in the case of Md. Idris (supra) having laid down the law in the light of the observations of a decision of Supreme Court, has merely observed that the provisions contained in Order 8 Rule 6A C.P.C. has been introduced to avoid multiplicity of the suit. Such observation does not mean much less lays down any law that the defendant, tenant should be allowed to seek declaration of his title in a suit filed by the plaintiff, landlord for eviction on the ground of personal necessity. In view of what has been laid down by this Court in the aforesaid two cases as also noticing the facts of this case, this Court is of the view that the second part of impugned order cannot be sustained and accordingly the same to the extent of allowing the counter claim of the opposite party is hereby set-aside. At this stage, counsel for the opposite party says that the opposite party would like to file his title suit claiming declaration of title to the suit property which is the subject matter of the present eviction suit. This Court will make no 6 observation on such plea of the opposite party as such right of the opposite party is well safeguarded in the following observations made by this Court in the case of Md. Idris (Supra) which reads as follows:- “In view of the fact that the plaintiff-petitioner has been opposing the maintainability of the counter claim and the same has been now set aside at his instance, this Court would, therefore, definitely give liberty petitioner to file his own title suit praying a declaration for his own title which of course would be decided on its own merit.” In view of the fact that the eviction suit has been filed in the year 2003 and has remained pending partly on the ground of pendency of this Civil Revision application from

27.9.2003 this Court would direct the Court below to conclude eviction suit within receipt/production of a copy of this order. With the aforesaid observation and direction this application is allowed. Bibhash (Mihir Kumar Jha, J.)