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PETITIONER: RAM PRASAD RAJAK

       Vs.

RESPONDENT: NAND KUMAR & BORS. & ANR.

DATE OF JUDGMENT:       18/08/1998

BENCH: A.S. ANAND, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SRINIVASAN, J.      The appellant  is landlord of a shop measuring 6; x 17- 1/2’ which  is occupied  by the  respondents as tenants. The appellant filed  Eviction Suit  No. 19/85  under the general law in  the Court  of District  Munsif, Giridih for evicting the respondents on two grounds:- (i) non-payment of rent and (ii) bonafide personal requirement.      The suit  was dismissed  and an appeal by the appellant also failed.  He filed  a second appeal, during the pendency of which he field the present Eviction Suit No. 35/89 on the file of the District Munsif, Giridih under Section 14 of the Bihar Buildings  (Leas, Rent  & Eviction ) Control Act, 1982 (for short, ’the Act’) on the ground of bonafide requirement for personal  occupation. That  suit was  dismissed  by  the Trial Court.  on appeal,  the appellant  succeeded and got a decree for  eviction against  the respondents.  Against  the said decree, the respondents filed a Civil Revision Petition under Section  14(B) of  the Act.  When  the  said  Revision Petition was  pending  the  appellant  withdrew  his  Second Appeal  filed   in  the   earlier  proceedings  and  got  it dismissed. Thereafter,  the High  Court allowed the Revision Petition filed by the respondents on two grounds, namely:- (i) the  second suit for eviction filed by the appellant was barred by the provisions of Order 2 Rule 2 C.P.C. and (ii) the appellant’s requirement for personal occupation was not bonafide. It is that judgment of the High court which is challenged in this appeal. 2.   A  preliminary   objection  has   been  raised  by  the respondents  at   the  hearing   of  the   appeal  that  the appellant’s appeal  before the  District Court  against  the dismissal  of   the  suit   by  the   Trial  Court  was  not maintainable and  consequently the  judgment rendered by the Appellate Court  in favour of the appellant was invalid. The contention of  the respondents  is that  by  virtue  of  the provisions contained  in Sections  13 and  14(8) of the Act, the only  remedy available  to  the  appellant  against  the dismissal of his suit for eviction was an application to the High Court  for revision of the order of the Trial Court. In

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answer to  the said  contention,  learned  counsel  for  the appellant submits  that the  question has been discussed and considered in detail by a Full Bench of the Patna High Court in Mohd.  Jainul Ansari  vs. Khalil  1990 (2) p L. J. R. 378 and that  it has  been decided  by the  full Bench that if a suit for  eviction ends in dismissal by the Trial Court, the remedy of  the landlord  is  to  challenge  the  same  under Section 96  C.P.C. as there is no provision in Section 14 or in the  Act prescribing  any remedy to the landlord. Learned counsel represented that the said judgment of the Full Bench has not  been challenged  in this  Court and  it  holds  the field. 3.   It is  the  contention  of  the  respondents  that  the judgment of  the full  Bench is erroneous as it runs counter to the  judgment of  this Court  in Vinod Kumar Chowdhry vs. SMT. NARAIN  Devi  Taneja  (1980)  2  SCC  120  in  which  a corresponding provision  in the Delhi Rent Control Act, 1958 was  considered.   According  to  learned  counsel  fro  the respondents the provisions in the Delhi Rent Control Act and the Bihar  Act are  pari materia  and the  judgment  of  the Supreme Court  would govern  the question.  We are unable to agree. 4.   The Full  Bench has  referred to Vinod Kumar’s case and distinguished the same on the footing that the provisions of the two  enactments are  not parimateria. The Full Bench has also considered  the provisions  of the  two enactments. The reasons given by the Full Bench are appropriate and we agree with the  same. We are also of the opinion that the decision of this Court in Vinod Kumar Chowdhry’s case will not apply. As we  are in  agreement with the view expressed by the Full Bench, it  is unnecessary for us to consider the question in detail Suffice  it to  hold that  the decision  of the  Full Bench is  correct in  law. Hence  the preliminary  objection raised by learned counsel for the respondents is over-ruled. 5.   Learned counsel  for the  respondents has stated before us that  he is not supporting the judgment of the High Court in so  far as  it holds  that the  present suit for eviction filed by  the appellant is barred by the provisions of Order 2 Rule 2 CPC. Even apart from his statement we find that the cause of  action for  the second  suit is entirely different from the  cause of  action for the earlier suit and there is no chance of Order 2 Rule 2 barring this suit. 6.   We have  noticed that  the respondents filed a Revision under Section  14(8) of  the Act against the judgment of the Appellant Court  granting a decree for eviction in favour of the appellant.  Obviously that revision was not maintainable as there  is no  provision in Section 14(8) of the Act for a revision against  an Appellate  Order. The  said sub-section refers only  to an  order passed  by  the  Trial  Court  for recovery of  possession in  favour of  the landlord.  If the Trial Court  dismisses the suit, only remedy of the landlord is to  file an  appeal under  Section 96  CPS. When  such an appeal is  disposed of  by the  Appellate Court, the further remedy of  the aggrieved party is only under Section 100 CPC and there  is no question of reverting back to Section 14(8) of the  Act. By  no stretch  of imagination,  the  appellate order or  decree can  be considered  to be  an order  of the trial Court for recovery of possession within the meaning of Section 14(8)  of the Act. Hence the revision petition filed by  the   respondents  before   the  High   Court  was   not maintainable. 7.   We   find    however,   the   objection   as   to   the maintainability of  the revision  petition was  not taken by the  appellant   in  the   High  Court.   The  revision  was entertained and  allowed by the High Court. In order to meet

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the ends of justice we treat the said revision petition as a second appeal  under Section 100 CPC and proceed to consider whether the  judgment of  the High  Court is  sustainable or not. Once  the proceeding  in the High Court is treated as a second  appeal  under  Section  100  CPC,  the  restrictions prescribed in  the said  Section would  come into  play. The High Court  could and ought to have dealt with the matter as a second appeal and found out whether a substantial question of  law   arose  for   consideration.  Unless  there  was  a substantial  question   of  law,   the  High  Court  had  no jurisdiction to entertain the second appeal and consider the merits. It  has been held by this Court in Panchugopal Barua & Ors. vs. Umesh Chandra Goswami & Ors. J.T. 1997 (2) SC 554 and Kshitish  chandra Purkait  vs. Santosh  Kumar Purkait  & Ors. J.T.  1997 (5)  SC 202  that existence of a substantial question of  law  is  sine  qua  non  for  the  exercise  of jurisdiction under  Section 100  CPC. In  both the aforesaid cases, one  of us  (Dr. Anand,  J.) was a party to the Bench and in the former, he spoke for the Bench. 8.   That apart,  on merits, the only other question relates to the  bona fide requirement of the appellant that does not give rise to any substantial question of law. It is entirely a matter to b decided on an appreciation of the evidence. On a perusal  of the  judgment of  the High Court it is evident that it  had interfered with a finding of fact arrived at by the Second  Additional District  Judge, Giridih in the first appeal on  an appreciation  of the  evidence. The High Court made an  attempt to  re-appreciate the  evidence and come to the conclusion  that the  appellant failed to prove his bona fide requirement.  In fact  after a scanty discussion of the evidence, the  High Court  observed, "in  this view  of  the matter I  find and  hold that the plaintiff miserably failed on factual  aspect also  to prove  his bona fide necessity." The  High   Court  has  acted  beyond  its  jurisdiction  in appreciating the evidence on record. 9.   We have  also been  taken through  the judgment  of the Second Additional  District  Judge  rendered  in  the  first appeal against the judgment of the Trial Court. We find that the appellate  Court has  discussed the  evidence threadbare and considered  the matter  in the  proper perspective.  The appellate court  has considered  all the materials on record and nothing has been omitted to be referred. Learned counsel for the  respondents has  contended that the Appellate Court omitted to  consider an admission made by the plaintiff that his need could be satisfied if the adjacent shop occupied by another tenant  Harish Chandra Bagga was delivered to him. W do not find any such admission on record. On the other hand, the categoric  case of the appellant is that his requirement can be fulfilled only by vacating both the premises occupied by the  tenants including  the respondents.  In  so  far  as Harish Chandra  Bagga is  concerned  it  is  stated  by  the appellant that  he had earlier undertaken to vacate the shop in his  occupation and  ultimately handed over possession of the said  shop  to  the  appellant  on  20.9.97  during  the pendency of  this appeal.  On a perusal of the record we are of the  opinion that  the finding  of fact  rendered by  the Second Additional  District Judge  in the  first  appeal  is conclusive and the High Court has exceeded it s jurisdiction in interfering with the said findings. 10.  Consequently the  Civil  Appeal  is  allowed  /and  the judgement and  order of  the High  Court of  Patna in  Civil Revision No.  416 of 1995 (R) is set aside. The judgment and decree for eviction passed by the Second Additional District Judge,  Giridih  in  Eviction  Appeal  No.  6  of  1990  are restored. There will be no order as to costs.

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11.  Learned counsel for the respondents prayed for grant of one year  time to  vacate the  premises. Learned counsel for the  appellant  has  agreed  to  the  same  after  obtaining instructions. In  the  circumstances,  the  respondents  are granted time  to vacated  the suit premises till 14.8.199 on condition that the respondents file the usual undertaking in this Court  within a  period of  eight weeks  from this date failing which,  the benefit  of grant  of time  will not  be available to them.