Patna High Court - Orders
Akhilesh Prasad Sharma vs Anil Kumar Sah & Ors on 1 September, 2009
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.428 of 2008
Akhilesh Prasad Sharma S/o Late Jagdish Sharma
resident of Mohalla Chhatauni Maharajganj P.O. Chhatauni
Dist. East Champaran
Defendant-Petitioner
Versus
1. Anil Kumar Sah
2. Sudhir Kumar Sah
3. Pramod Kumar Sah
All sons of Late Yamuna Prasad Sah resident of Mohalla
Bajajpatii Main Road, Motihari PO & PS Motihari
Dist. & Town East Champaran
Plaintiffs- Opposite Party Ist Set
4. Most. Janki Devi W/o Late Jagdish Sharma
5. Rajesh Sharma S/o Late Jagdish Sharma
Both resident of Mohalla Chhatauni Maharajganj P.O. Chhatauni
Dist. East Champaran
Defendants -Opposite parties 2nd set
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For the petitioner: Mr Manojeshwar Pd. Sinha, Advocate
Mr Ratan Kumar Sinha, Advocate
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06 01.09.2009I.A. No.1806 of 2008 has been filed on behalf of the petitioner for condoning the delay in filing of this civil revision. Considering the averments made by the learned counsel for the petitioner and the statement made in the interlocutory application, it is apparent that the petitioner has been able to show genuine reason which prevented him from filing the instant civil revision earlier. Accordingly, this interlocutory application is allowed and delay in filing this civil revision is condoned.
2. Heard learned counsel for the defendant-petitioner.
3. This civil revision has been filed by the defendant- petitioner challenging order dated 13.06.2007 by which learned Munsif Sadar, Motihari rejected his petition for hearing the Eviction Suit no. 6 of 2005 on the issue of maintainability.
4. The aforesaid suit was filed by the plaintiffs-opposite -2- party Ist set for eviction of the defendants including the petitioner on the ground of personal necessity of the plaintiffs with respect to the suit premises which is a house. The defendant-petitioner appeared in the suit and filed an application on 07.09.2005 for dismissing the suit after hearing the issue of maintainability and to direct the plaintiffs to file fresh suit under the general provision of law. This interlocutory application has been rejected by the learned court below vide its order dated 13.06.2007 which is under challenge in the instant civil revision.
5. Learned counsel for the petitioner vehemently challenges the impugned order of the learned court below on the ground that if an eviction suit is proceeding under the provision of section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act' for the sake of brevity) it has to follow the procedure prescribed under the Provincial Small Cause Courts Act, 1887, Section 23 of which provides that when the right of a plaintiff and the relief claimed by him in a court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title.
6. In the said context, learned counsel for the petitioner relies upon a decision of Ranchi Bench of this court in the case of Deepak Kumar Verma and others vs. Ram Swarup Singh reported in 1991(2) PLJR 541 in which it was held that in a suit for eviction on the ground of personally necessity in which the tenant challenges the -3- title of landlord over the suit premises procedure laid down under section 14 will be followed for deciding the proceeding and section 23 of Small Cause Courts Act bars a suit in which a question of title in relation to the immoveable property is involved and complicated question of title of the parties should not be decided in a proceeding under section 14 of the Act.
7. After considering the aforesaid facts and circumstances of the case, submissions of the leaned counsel for the petitioner and provisions of law as well as case law relied upon by him, it is quite apparent that the plaintiffs have not sought any relief of declaration of title in the plaint rather they have only claimed relationship of landlord and tenant between the parties and eviction of the defendants on the ground of their personal necessity. It is the defendant who is raising the question of title. In the said circumstance, the court cannot go into intense and complicated question of title of the parties rather it has merely to see the question of title incidentally where after the main question to be decided would be relationship of landlord and tenant between the parties.
8. Section 23 of the Provincial Small Cause Courts Act, 1887 clearly shows that when the right of a plaintiff and the relief claimed by him in a court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title. Here in the instant case, the -4- plaintiffs have not sought any relief regarding declaration of their right and title and hence there was no occasion for the court to refuse final decision in the eviction suit. In the said circumstance, the impugned order of the learned court below is not at all violative of either of provisions of section 14 of the BBC Act or section 24 of the Small Cause Courts Act and even of the case law decided by a Single Bench (Ranchi) of this Court mentioned above.
9. This Court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is dismissed.
10. However, it appears that the suit for eviction on the ground of personal necessity is pending since 2005, hence the learned court below is directed to expedite the disposal of the suit.
shahid (S.N.Hussain, J)