JUDGMENT
Prabha Shankar Mishra, J.
1. This application was admitted to hearing on 22-7-1985 and ordered to be placed before an appropriate Bench for the said purpose on 12-8-1985
2. When this case, however, was placed for the hearing, a contention was raised that although the suit filed by the opposite party was tried in accordance with the special procedure prescribed Under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act), since it was decided on contest after the Court granted permission to the tenants-petitioner therefore, the application should be treated as a first appeal, yet another contention was raised based on the language used in Section 14 (2) of the Act, that a suit for the recovery of possession of any premises on the ground specified in Clause (c) or (d) of Sub-section (1) of Section 11 of the Act, be taken up for hearing in accordance with the procedure in Section 14 of the Act, summons must issue in the prescribed form in every such suit. The word ‘prescribed’ has been defined in Section 2 (g) of the Act to mean, ‘prescribed by rule’. Since no rule has been prescribed, nor a notice contemplated in Sub-section (2) of Section 14, but a notice of regular suit in accordance with the Code of Civil Procedure had been issued. In such a situation, the trial, on the facts of this case, was not in accordance with the special procedure prescribed in Section 14 of the Act but in accordance with the procedure for any other suit. Noticing in this order, dated 12-12-1985 the said two contentions and on the fact that on the latter contention, had referred a case to a Division Bench for decision, L.M. Sharma, J., ordered for placing this case before a Division Bench. The case has, accordingly, been listed before us for hearing.
3. Before I enter into the facts and the law in respect of the matter in issue before us, I may dispose of at least one contention that fell for consideration before me in a case and 1 referred the matter for hearing by a Division Bench. The said case has already been disposed by a Division Bench, of which 1 was a member and the question, therefore, as to the notice in the prescribed form, has been concluded by a Division Bench judgment of this Court.
4. In the case of Sardar Rajendra Singh v. Sardar Bahadur Singh 1984 B.L.T. 177. Haidar, J., had taken the view that Sub-section (2) of Section 14 of the Act which has said that the Court would issue summons in the prescribed form in every suit referred in Sub-section (1) thereof could be satisfied if on service of notice and appearance, the party concerned submitted to the jurisdiction and the special procedure for disposal of cases for eviction on the ground of bona fide requirement or in other words the ground specified in Clause (c) or (e) of Sub-section (1) of Section 11 of the Act. The said view has been affirmed by the Division Bench, which has observed that a provision like one in Sub-section (2) of Section 14 of the Act is not mandatory and if no form has been prescribed, still a notice served in a suit by a landlord for the recovery of possession of any premises on the ground specified in Clauses (c) or (e) of Sub-section (1) of Section 11 of the Act, which is tried in accordance with the special procedure, no error of jurisdiction is committed, The Division Bench has rather strongly observed that by not framing the rule and prescribing the form of summons, as provided in Sub-section (2) of Section 14 of the Act, the State Government has created this embarassing situation.
5. Since, however, a Division Bench of this Court, of which I was a member, has taken the view that a trial in accordance with the special procedure prescribed in Section 14 of the Act, if the condition precedent, that the ground for eviction was either one specified in Clauses (c) or (e) of Sub-section (1) of Section 11 of the Act, was satisfied, is not without jurisdiction and since we are in respectful agreement with the said view, I propose not to proceed any further with this contention.
6. For examination, however, other contentions raised by learned Counsel for the petitioner, it is necessary to set out certain facts.
7. The plaintiff-opposite party is landlord, who inducted the defendant-petitioner as a tenant in a premises governed by the Act. Solely on the ground of personal necessity falling in Clause (c) of Sub-section (1) of Section 11 of the Act, he filed the suit in the Court of the Special Subordinate Judge at Ranchi. Since the ground was one referred to in Section 14 (1) of the Act, after his appearance the tenant petitioner filed an affidavit stating the ground on which he proposed to contest the suit. The Court after hearing the parties granted leave for the said contest. The parties thereafter entered into evidence and following the procedure of a court of small cause including the recording of evidence the learned Special Subordinate Judge heard the parties and by his judgment, dated 19-6-1985 decreed the plaintiff’s suit and ordered for the tenant-petitioner’s eviction. The petitioner has hence moved this Court in revision.
8. Mr Basudeo Prasad. learned Counsel for the petitioner, has submitted that Sub-section (8) of Section 14 of the Act, which says No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with the procedure specified in this Section provided that on an application being made within sixty days of the date of order of eviction, the High Court may, for the purpose of satisfying itself with an order under the Section is according to law, call for records of the case and pass such order in respect thereto as it thinks fit, is discriminatory per se and is violative of Article 14 of the Constitution of India. He has contended that while there is no bar to a landlord referring an appeal and/or a second appeal as well in the event of the order of the Court concerned going against him, a tenant, against whom an order for the recovery of possession is passed, is denied the right of appeal or a second appeal. He has referred to the object of the Act and submitted that the legislature his enacted the law with a view to protecting the tenants from the capricious actions of the landlords, to which Section 14 of the Act is an exception when the ground for eviction is one specified in Clauses (c) or (e) of Sub-section (I) of Section 11 of the Act and in that too a further qualification has been made and a hostile discrimination has, thus, been introduced by providing for the landlord a right of appeal or second appeal and denying the said right to tenant.
9. Mr. Prasad has also submitted that one can appreciate the scheme in Sub-section (4) of Section 14 of the Act when at the threshold the Court is to decide whether to give to the tenant leave to contest the suit or not. But once such leave is granted and the parties contest, any discrimination in their respective rights of appeal cannot have any rationale. Added to this, according to Mr. Prasad, is yet another infirmity, as Sub-section (1) of Section 14 of the Act has referred to the ground specified in Clauses (c) or (e) of Sub-section (1) of Section 11 of the Act, but a landlord can always frame a suit with grounds other than specified in Clauses (c) or (e) clubbed with the ground specified in Clauses (c) or (e) and a court in a regular suit may find the other grounds baseless or not proved and find a ground falling in Clause (c) or (e) proved for granting a decree for eviction. In a situation of that kind, although the decree for eviction may be on a ground specified in Clause (c) or (e) of Sub-section (I) of Section 11 of the Act, both the landlord and the tenant may enjoy the right of appeal and a second appeal, but in a suit on the ground specified in Clauses (c) or (e) of Sub-section (1) of Section 11 of the Act alone that right is preserved for a landlord and denied to a tenant.
10. There is evidently no provisions for separating a suit for eviction on the ground specified in Clauses (c) or (e) of Sub-section (1) of Section U of the Act from a suit on other grounds and it is open to a landlord to choose his grounds. In choosing his grounds, a landlord may seek eviction of a tenant on the ground of default falling in Clause (d) of Sub-section (1) of Section 11 of the Act with the ground of personal necessity falling in Clause (c) thereof or he may choose to institute a suit only on the ground specified in Clause (c). While in the former case the special procedure for disposal of cases provided in Section 14 of the Act shall not be attracted, in the latter case the trial shall be in terms of Section 14 of the Act alone.
11. A welfare legislation, which the Act is, may decide in its contents to extend protections in respect of matters that may be causes of exploitation and in the process may find that from the provisions generally a special provision may be taken out to protect the interest of another class who may for reasons of the welfare be required to yield to the law, but need protection to preserve their needs. Section 14 of the Act may in that sense have a justification and such object in it has been read by this Court in several judgments including by myself in Krishna Prasad and Ors. v. Mosmat Daho Devi and Anr. 1985 F.L.J.R. 302; A discrimination to protect a class of citizens may reasonably be warranted and if there is a rationale with justifiable object behind it, a provision like one in Section 14 of the Act may not be in the teeth of Article 14 of the Constitution of India, but a hostile discrimination is objectionable when no rationale is available to justify it.
12. The Act has chosen to classify the landlord and the tenant and has treated the former as the oppressor and the latter as the oppressed. To the oppressor too it has given protection in Section 14 of the Act by taking notice of the grounds specified in Clause (c) or (e) Sub-section (1) of Section It of the Act, which speak of the proposal necessities of the landlord and a tenant holding on a lease for a specified period on the explanation of the period of tenancy.
13. There appears to the sufficient justification for taking out from the general scheme of the law suits which are filed by a landlord for eviction of a tenant on the ground specified in Clause (c) and (e) of Sub-section (1) of Section 11 of the Act, as a landlord requiring his house reasonably and in good faith for his own occupation or for the occupation of any person for whose benefit the building is held by him may not wait the tedious and protracted trial, a first appeal and a second appeal. Similarly in the case of a tenant holding on a lease for a specified period on the expiration of the tenancy, is obliged to deliver possession to the landlord and if he does not do so, he commits wrong, and is a tenant is the wrong-doer, the law may extend protection to the landlord, who may in such circumstances be the oppressed. Provisions similar to Section 14 of the Act, in the Acts of other States have been upheld and in my judgment referred to above, a few of them decided by the Supreme Court, have been relied upon. Had, however, the matter been at that only, it would have been easy to reject the contention of Mr. Prasad. Protection of the special procedure extended until the trial is held in accordance with the special procedure, may have every justification, but once permission is granted to the tenant to contest and the trial Court, denial of the right of appeal to a tenant and preserving the same in favour of the landlord is a mini classification further Introduced, as if a landlord can voice his grievance against a decision taken in accordance with the special procedure, but the tenants voice must be stiffed and snothe at that. It is in that sense, according to Mr. Prasad, that after classifying the suits falling in Clause (c) and (e) of Sub-section (1) of Section 11 of the Act for the special treatment, a further classification in respect of the right of appeal is hostile and without any reasonable basis.
14. I have made above observations to take notice of the connection of Mr. Prasad, and to indicate that in an appropriate case, the Court may be required finally to settle whether to read in Sub-section (8) of Section 14 of the Act, no right of appeal to the landlord as well, and since the procedure in small cause is adopted in the special trial, both the landlord and the tenant may not have the right of appeal at all and like the tenant the landlord too can move this Court by making an application within sixty days of the date of the order, or to read in Sub-section (1) of Section 14 of the Act itself, that in the case of a suit instituted by a landlord for eviction after the adjudication by the trial Court going against him, he shall have neither a right of appeal nor any right of second appeal, but the tenant may have a right of revision in tern of the proviso to Sub-section (8) of Section 14 of the Act, unless either of the two are resorted to, one may find it difficult to uphold the constitutional validity of Sub-section (8) of Section 14 of the Act.
15. For disposing of the publication, however, we have noticed that while following the procedure specified in Section 14 of the Act, the learned Special Subordinate Judge has failed to take notice of the provision in Clause (c) of Sub-section 11 (1) of Section of the Act. Before a landlord’s claim for eviction on the ground of personal necessity is entertained by a Court, it is necessary for the landlord to show that the building concerned is required, reasonably and in good faith, for his own occupation or for occupation of any person for whose benefit the building is held by the landlord and also as provided therein that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenants to continue occupation of the rest. That the building is reasonably and in good faith required can be determined only by taking notice of the facts pleaded by the parties and even after It is found by the Court that the building is reasonably and in good faith required by the landlord, it has a duty to determine whether the reasonable requirement of such occupation will be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest or not. The legislature has chosen to qualify the word, ‘satisfied’ by the expression substantially, with a view to keep the interest the tenant protected by providing occupation to him of the building in part, and granting to the landlord occupation to meet his requirements. It may be that the landlord may feel dissatisfied with the part eviction, yet the Court may have to pronounce on such fact that may placed before it, that their requirements will be satisfied by a part eviction only. Although there is some mention in the judgment of the learned special subordinate Judge of the requirement of the landlord and that the requirement will not be satisfied unless the tenant is evicted from the entire building I have no hesitation in holding that the test that the building is reasonably and in good faith required by the landlord and that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building, has not been legally applied by the learned Special Subordinate Judge. I refrain, however, from entering into the facts and recording my own findings on the evidence record, as by doing so, I may cause prejudice to one or the other party. The proper course, in my view, in such a situation is to set aside the judgment of the learned Special Subordinate Judge and remit the case for a re-hearing in accordance with law on the evidence already recorded and decide as indicated above, whether the building is reasonably and in good faith required by the landlord or not and as to whether the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part of the building or not.
16. Since in any view the judgment of the Special Subordinate Judge at Ranchi is not in accordance with law and he has committed error of jurisdiction in granting eviction without adjudication as above, this application has to be allowed.
17. In the result, this application is allowed the judgment and decree of the learned Special Subordinate Judge is set aside. The case is remitted to the Court of the learned Special Subordinate Judge for a re-hearing in accordance with law.
18. On the facts of this case no notice need be given to either party, as learned Counsel appearing for them accept the notice of remand and under -take to appear in the Court of the learned Special Subordinate Judge within a fortnight from today. On their appearance in his Court, the learned Special Subordinate Judge shall fix a date for hearing and dispose of the matter within one month from today. There shall be no orders as to costs.
Madan Mohan Prasad, J.
19. I agree.