{"id":188100,"date":"2001-11-09T00:00:00","date_gmt":"2001-11-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-tiwary-vs-basudeo-prasad-anr-on-9-november-2001"},"modified":"2015-10-08T16:21:05","modified_gmt":"2015-10-08T10:51:05","slug":"rajendra-tiwary-vs-basudeo-prasad-anr-on-9-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-tiwary-vs-basudeo-prasad-anr-on-9-november-2001","title":{"rendered":"Rajendra Tiwary vs Basudeo Prasad & Anr on 9 November, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rajendra Tiwary vs Basudeo Prasad & Anr on 9 November, 2001<\/div>\n
Bench: S.S.N.Quadri, S.N.Phukan<\/div>\n
           CASE NO.:\nAppeal (civil) 3406  of  1998\n\n\n\nPETITIONER:\nRAJENDRA TIWARY\n\n\tVs.\n\nRESPONDENT:\nBASUDEO PRASAD & ANR.\n\nDATE OF JUDGMENT:\t09\/11\/2001\n\nBENCH:\nS.S.N.Quadri, S.N.Phukan\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Syed Shah Mohammed Quadri,  J.\n<\/p>\n
This appeal, by special leave, is from the judgment and
\norder of the High Court of Judicature at Patna in Second Appeal
\nNo.304 of 1990 passed on September 09, 1997.\n<\/p>\n
The parties are referred to as they are arrayed in the trial
\ncourt. The respondents-plaintiffs filed Title Suit No.167 of
\n1982 (12 of 1985) for eviction of the appellant-defendant from
\nholding No.1600 (new) (old holding No.95) in Ward No.1
\nhaving an area of 7-1\/2 dhurs, Muhalla Waya Bazar, P.S. Siwan
\ntown P.S.No.231, Siwan, Bihar (for short, the suit premises)
\non three grounds — (1) default of the defendant in payment of
\nrent from August 14, 1981 under clause (d) of sub-section (1)
\nof Section 11; (2) reasonable personal requirement in good faith
\nfor the sons of the plaintiffs under clause (c) of sub-section (1)
\nof Section 11, and (3) damage to the suit premises under clause\n<\/p>\n
(b) of sub-section (1) of Section 11 of The Bihar Building
\n(Lease, Rent & Eviction) Control Act, 1982 (for short, the
\nAct). The plaintiffs averred that they purchased the suit
\npremises under three registered sale deeds of March 17, 1981,
\nApril 09, 1981 and April 14, 1981 from one Kedar Nath Sinha
\nand immediately thereafter let them out to the defendant on
\nmonthly rent of Rs.300\/-; the defendant did not pay the rent
\nfrom the date of the commencement of the tenancy.  The
\nplaintiffs have six sons;  three of them are major.  The plaintiffs
\nwanted to set up their children in business as they are
\nunemployed; they, therefore, require the suit premises in good
\nfaith.\tThe defendant contested the suit denying that he took the
\nsuit premises on rent from the plaintiffs.  He stated that he had
\ntaken the suit premises on rent from the said Kedar Nath Sinha
\nabout 33 years back.  He, however, alleged that he entered into
\nan agreement for purchase of the suit premises and a
\nMahadnama (agreement for sale) was executed by the said
\nKedar Nath Sinha in his favour on September 14, 1980 and
\nfrom that date he has been in possession as owner of the suit
\npremises.  The defendant also filed Title Suit No.232 of 1983 in
\nthe Court of Sub-Judge, Siwan praying the Court to grant
\nspecific performance of the said Mahadnama  dated September
\n14, 1980. The said suit is pending.  He denied that the ground
\nof personal requirement of the plaintiffs was either reasonable
\nor bonafide.\n<\/p>\n
On April 30, 1985 the trial court after appreciating the
\nevidence on record dismissed the suit for eviction holding that
\nthere was no relationship of landlord and tenant between the
\nplaintiffs and the defendant; it found that the plaintiffs had title
\nto the suit premises; however, finding was recorded on the
\nquestion of reasonable personal requirement in favour of the
\nplaintiffs.  Against the judgment of the trial court, the plaintiffs
\nfiled Title Appeal No.96 of 1985 in the court of 5th Addl.
\nDistrict Judge, Siwan.\tOn May 26, 1990 the appellate court
\naffirmed the judgment of the trial court and dismissed the
\nappeal.\t The plaintiffs then agitated their claim in Second
\nAppeal No.304 of 1990 before the High Court of Judicature at
\nPatna.\tOn September 09, 1997 the High Court allowed the
\nappeal taking the view that an equitable decree of eviction
\ncould be passed against the defendant on the basis of the title of
\nthe plaintiffs and remanded the case to the first appellate court
\non the ground that it did not record any finding on the question
\nof title of the parties.  That judgment of the High Court is
\nbrought under challenge in this appeal by the defendant.
\nMr.P.S.Misra, the learned senior counsel appearing for
\ndefendant, contended that provisions of Order VII Rule 7 of the
\nCode of Civil Procedure would not be attracted to the suit as the
\ncourt was exercising limited jurisdiction under the Act.  Mr.
\nMisra argued that in a suit for eviction under the Act the
\nquestion of title to the suit premises could not be decided and
\nthat had to be done by a civil court in its ordinary jurisdiction
\nand, therefore, the High Court erred in law in remanding the
\ncase to the first appellate court for deciding the question of title
\nof the plaintiffs and passing an equitable decree for eviction of
\nthe defendant.\n<\/p>\n
Ms.Asha Jain Madan, the learned counsel for the
\nplaintiffs, argued that admittedly the suit premises belonged to
\nthe said Kedar Nath Sinha and the plaintiffs purchased the same
\nunder three registered sale deeds from him; they had, therefore,
\nprima facie title and as admittedly the said Kedar Nath Sinha
\nhad let out the same to the defendant, an equitable decree for
\nhis eviction ought to have been passed by the courts below.
\nInasmuch as the trial court on the basis of the sale deeds and
\nstatement of the vendor of the plaintiffs recorded the finding
\nthat the plaintiffs were the owner but the first appellate court
\ndid not go into that question, the High Court was right in
\ndirecting the first appellate court to record a finding as to the
\ntitle to the suit premises.  Once the plaintiffs established their
\ntitle to the suit premises, argued Ms.Madan, even if the
\ndefendant was held not to be the tenant, an equitable decree
\ncould always be passed against the defendant for eviction of the
\nsuit premises.\n<\/p>\n
On the above contentions the question that arises for
\nconsideration is : whether on the facts and the circumstances of
\nthe case the High Court is right in law in holding that an
\nequitable decree for eviction of the defendant can be passed
\nunder Order VII Rule 7 of C.P.C. and remanding the case to the
\nfirst appellate court for recording its finding on the question of
\ntitle of the parties to the suit premises and for passing an
\nequitable decree of eviction against the defendant if the
\nplaintiffs were found to have title thereto.
\nIt is evident that while dealing with the suit of the
\nplaintiffs for eviction of the defendant from the suit premises
\nunder clauses (c) and (d) of sub-section (1) of Section 11 of the
\nAct, courts including the High Court were exercising
\njurisdiction under the Act which is a special enactment. The
\nsine qua non for granting the relief in the suit, under the Act, is
\nthat between the plaintiffs and the defendant the relationship of
\nlandlord and tenant should exist.  The scope of the enquiry
\nbefore the courts was limited to the question : as to whether the
\ngrounds for eviction of the defendant have been made out under
\nthe Act. The question of title of the parties to the suit premises
\nis not relevant having regard to the width of the definition of
\nthe terms landlord and tenant in clauses (f) and (h),
\nrespectively, of Section 2 of the Act.\n<\/p>\n
Inasmuch as both the trial court as well as the first
\nappellate court found that the relationship of landlord and
\ntenant did not exist between the plaintiffs and the defendant,
\nfurther enquiry into the title of the parties, having regard to the
\nnature of the suit and jurisdiction the court, was unwarranted.
\nAs the High Court remanded the case to the first
\nappellate court to decide the question of title of the parties and
\ngrant a decree under Order VII Rule 7, it will be necessary to
\nquote the said provision here:\n<\/p>\n
 R.7.  Relief to be specifically stated.\n<\/p>\n
Every plaint shall state specifically the relief
\nwhich the plaintiff claims either simply or in the
\nalternative and it shall not be necessary to ask for
\ngeneral or other relief which may always be given
\nas the Court may think just to the same extent as if
\nit had been asked for.\tAnd the same rule shall
\napply to any relief claimed by the defendant in his
\nwritten statement.\n<\/p>\n
A plain reading of Order VII Rule 7 makes it clear that it
\nis primarily concerned with drafting of relief in a plaint.  It is in
\nthree parts — the first part directs that the relief claimed by the
\nplaintiff simply or in the alternative shall be stated specifically.
\nIt incorporates in the second part the well settled principle that
\nit shall not be necessary to ask for general or other relief which
\nmay always be given as the Court may think just on the facts of
\nthe case to the same extent as if it has been asked for.  The third
\npart says that in regard to any relief claimed by the defendant in
\nhis written statement, the same rule shall apply.
\nIn Firm Sriniwas Bam Kumar  vs.\t Mahabir Prasad &
\nOrs. [A.I.R. 1951 S.C. 177] it is laid down by this Court :
\nOrdinarily, the Court cannot grant relief to the
\nplaintiff on a case for which there was no
\nfoundation in the pleadings & which the other side
\nwas not called upon or had an opportunity to meet.
\nBut when the alternative case, which the plaintiff
\ncould have made, was not only admitted by the
\ndefendant in his written statement but was
\nexpressly put forward as an answer to the claim
\nwhich the plaintiff made in the suit, there would be
\nnothing improper in giving the plaintiff a decree
\nupon the case which the defendant himself makes.
\nA demand of the plaintiff based on the defendants
\nown plea cannot possibly be regarded with surprise
\nby the latter & no question of adducing evidence
\non these facts would arise when they were
\nexpressly admitted by the defendant in his
\npleadings.  In such circumstances, when no
\ninjustice can possibly result to the defendant, it
\nmay not be proper to drive the plaintiff to a
\nseparate suit.\n<\/p>\n
In that case the plaintiff filed the suit for specific
\nperformance of the contract for sale.  He alleged that he paid
\npart of the consideration under the contract to the defendant.
\nThe defendant denied the execution of the contract.  However,
\nhe pleaded that he took money from the plaintiff as a loan.  The
\nplaintiff failed to prove the contract for sale though the plaintiff
\ndid not claim alternative relief for recovery of the amount paid
\nunder the contract.  The Court passed a decree for recovery of
\nthe amount alleged to have been taken by the defendant as a
\nloan under Order VII Rule 7.\n<\/p>\n
In Bhagwati Prasad  Vs.\t Chandramaul [A.I.R. 1966 S.C.
\n735] the plaintiff laid the suit for ejectment of the defendant on
\nthe ground that he let out the building to the defendant on rent
\nin different portions on completion of construction of each
\nportion.  The defendant pleaded that he constructed the house
\non the land which belong to the plaintiff.  The agreement
\nbetween them was that he would remain in possession of the
\nhouse until the amount spent by him in construction the house
\nwould be repaid by the plaintiff.  The agreement of tenancy
\npleaded by the plaintiff and the case set up by the defendant
\nwere disbelieved by the trial court; nonetheless the trial court
\nheld that there existed the relationship of landlord and tenant,
\nfixed a reasonable rent and decreed the suit for ejectment of the
\ndefendant and also for recovery of the rent at the rate fixed by
\nit.  The High Court set aside the decree of the trial court with
\nregard to the agreement of tenancy but confirmed the decree for
\nejectment of the defendant.  On appeal to this Court on a
\ncertificate granted by the High Court, Gajendragadkar, C.J.
\nspeaking for a four-Judge Bench observed :\n<\/p>\n
The general rule no doubt is that the relief should
\nbe founded on pleadings made by the parties.  But
\nwhere the substantial matters relating to the title of
\nboth parties to the suit are touched, though
\nindirectly or even obscurely, in the issues, and
\nevidence has been led about them, then the
\nargument that a particular matter was not expressly
\ntaken in the pleadings would be purely formal and
\ntechnical and cannot succeed in every case.  What
\nthe Court has to consider in dealing with such an
\nobjection is did the parties know that the matter in
\nquestion was involved in the trial, and did they
\nlead evidence about it?\t If it appears that the
\nparties did not know that the matter was in issue at
\nthe trial and one of them has had no opportunity to
\nlead evidence in respect of it, that undoubtedly
\nwould be a different matter.  To allow one party to
\nrely upon a matter in respect of which the other
\nparty did not lead evidence and has had no
\nopportunity to lead evidence, would introduce
\nconsiderations of prejudice, and in doing justice to
\none party, the Court cannot do injustice to
\nanother.\n<\/p>\n
Where the relief prayed for in the suit is a larger relief
\nand if no case is made out for granting the same but the facts, as
\nestablished, justify granting of a smaller relief, Order VII Rule
\n7 permits granting of such a relief to the parties.  However,
\nunder the said provisions a relief larger than the one claimed by
\nthe plaintiff in the suit cannot be granted.\n<\/p>\n
These are cases where the courts which tried the suits
\nwere ordinary civil court having jurisdiction to grant alternative
\nrelief and pass decree under Order VII Rule 7.\tA court of Rent
\nController having limited jurisdiction to try suits on grounds
\nspecified in the special Act obviously does not have jurisdiction
\nof the ordinary civil court and therefore cannot pass a decree for
\neviction of the defendant on a ground other than the one
\nspecified in the Act. If, however, the alternative relief is
\npermissible within the ambit of the Act, the position would be
\ndifferent.\n<\/p>\n
In this case the reason for denial of the relief to the
\nplaintiffs by the trial court and the appellate court is that the
\nvery foundation of the suit, namely, the plaintiffs are the
\nlandlords and the defendant is the tenant, has been concurrently
\nfound to be not established.  In any event inquiry into title of
\nthe plaintiffs is beyond the scope of the court exercising
\njurisdiction under the Act.  That being the position the
\nimpugned order of the High Court remanding the case to the
\nfirst appellate court for recording finding on the question of title
\nof the parties, is unwarranted and unsustainable.  Further, as
\npointed out above, in such a case the provisions of Order VII
\nRule 7 are not attracted.  For these reasons the aforementioned
\ncases are of no assistance to the defendant.  In this view of the
\nmatter we cannot but hold that the High Court erred in
\nremanding the case to the first appellate court for determination
\nof the title of the parties to the suit premises and for granting
\nthe decree under Order VII Rule 7.\n<\/p>\n
However, we make it clear that this judgment does not
\npreclude the plaintiffs from filing a suit for declaration of title
\nand for recovery of the possession of the suit premises against
\nthe defendant.\tIf such a suit is filed within three months from
\ntoday we direct that the same shall be tried along with suit filed
\nby the defendant, Title Suit No.232\/1983, in the court of Sub-
\nJudge, Siwan (Exbt.11) for specific performance of the contract
\nagainst the said Kedar Nath Sinha and the plaintiffs.
\nIn the result the judgment of the High Court under
\nchallenge is set aside.\t The suit of the plaintiffs (respondents) is
\ndismissed.  The appeal of the defendant (appellant) is allowed
\naccordingly but in the circumstances of the case without costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rajendra Tiwary vs Basudeo Prasad & Anr on 9 November, 2001 Bench: S.S.N.Quadri, S.N.Phukan CASE NO.: Appeal (civil) 3406 of 1998 PETITIONER: RAJENDRA TIWARY Vs. RESPONDENT: BASUDEO PRASAD & ANR. DATE OF JUDGMENT: 09\/11\/2001 BENCH: S.S.N.Quadri, S.N.Phukan JUDGMENT: Syed Shah Mohammed Quadri, J. This appeal, by special leave, is from the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-188100","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRajendra Tiwary vs Basudeo Prasad & Anr on 9 November, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rajendra-tiwary-vs-basudeo-prasad-anr-on-9-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra Tiwary vs Basudeo Prasad & Anr on 9 November, 2001 - 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