Holding

Relief under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 is contingent on the existence of a landlord‑tenant relationship; therefore, the High Court erred in remanding the case for title determination and in applying Order VII Rule 7, and the eviction suit must be dismissed.

Summary

The plaintiffs filed a suit for eviction of the defendant under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, alleging default in rent, personal requirement and damage, and claimed title to the premises through three sale deeds. The defendant denied being a tenant of the plaintiffs, asserting an earlier tenancy and a purchase agreement with the previous owner. The trial court and the first appellate court held that no landlord‑tenant relationship existed and dismissed the suit. The Patna High Court, however, remanded the matter to the appellate court and held that an equitable decree of eviction could be granted under Order VII Rule 7 of the CPC based on the plaintiffs' title. The Supreme Court held that the High Court was wrong: the special Act requires a landlord‑tenant relationship for relief, the question of title is irrelevant, and Order VII Rule 7 does not apply to a rent‑control court. Consequently, the appeal of the defendant was allowed, the High Court order set aside and the eviction suit dismissed.

Issues considered

The High Court’s remand to determine title and grant of an equitable decree under Order VII Rule 7 of the CPC was proper in a suit governed by the Bihar Building (Lease, Rent and Eviction) Control Act, 1982.
Whether the relationship of landlord and tenant must exist for relief under the Act, making title enquiry irrelevant.
Whether Order VII Rule 7 of the CPC is attracted to proceedings before a Rent Controller exercising limited jurisdiction under the special Act.

Legislation cited

Code of Civil Procedure, 1908s. Order VII Rule 7

Subjects

evictionlandlord-tenant relationshiprent controlBihar Building ActOrder VII Rule 7equitable decreetitle of propertylimited jurisdictionCivil Procedure Code

Judgment

RAJENDRA TIWARY A
v.
BASUDEO PRASAD AND ANR.

-· NOVEMBER 9, 2001

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

Rent Control and Eviction:

Bihar Building (Lease Rent and Eviction) Control Act, 1982--Sections
2(f) & (h) and 1l(b), (c) & (d}-Eviction suit-Trial Court and First Appellate
Court found that relationship of Landlord and tenant did not exist between the c
parties-However, Trial Court held that landlord had title to the suit premises-
Suit dismissed-High Coun remanded the case to the First Appellate Court
for granting equitable decree under Order Vll Rule 7 of CPC after determin-
ing the title of the landlord-On appeal, held, remand not justified since "relief
under the Act is dependent on the existence of relationship of landlord and D
tenant and on satisfaction of grounds of eviction, and not on the title of the
parties.

Rent Controller-Jurisdiction-Scope of-Held, has limited jurisdiction
to try suits on the grounds specified in the Special Act and not of the ordinary
civil court-Hence can not pass decree of eviction on the ground other than
E
specified in that special Act.

Civil Procedure Code, 1908--0rder Vll Rule 7--Grant of equitable
Relief-Scope of-Held the provision permits grant of smaller relief and not
larger relief than the one claimed in the suit. F

Respondents-plaintiffs filed snit for eviction of appellant-defendant,
wherein both claim tide to the suit premises.

Trial Court dismissed the snit on the ground that there was no
relationship of landlord and tenant between the parties. However, it held G
that the plaintiff-landlord had title to the suit premises, and that he had
bona fide requirement for the same.

The First Appellate Court dismissed the appeal but did not go into
the question of tide of the parties. H
243
244 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A High Curt allowed the second appeal holding that equitable decree
of eviction could be passed under order VII Rule 7 of CPC against the
defendant-tenant, on the hasis of title of the plaintiff-landlord and re-
manded the case to the first appellate court in order to record finding on
the question of title of the parties. ·--
B In appeal to this court appellant contended that provisions of Order
VII Rule 7 CPC were not attracted to the suit as court was exercising
limited jurisdiction under Bihar Building (Lease, Rent and Eviction)
Control Act, 1982 : and that High Court conld not have remitted the case
to the First Appellate Court because in a suit for eviction under the Act,
c the question of title to the suit premises could not be decided as the same
Is to be done by Civil Court in its ordinary jurisdiction. Respondent·
plaintiff contended that once the plaintiffs established their title, an equi-
table decree could be passed, even if the defendant was held not to be the
tenant.
D Allowing the appeal, the Court

HELD : 1. High Court erred in remanding the case to the first
appellate court for determination of the title of the parties to the suit
premises and for granting the decree under Order VII Rule 7 CPC. [251 ·A]
E Firm Sriniwas Ram Kumar v. Mahabir Prasad & Ors., AIR (1951) S.C.
177 and Bhagwati Prasad v. Oiendramaul, AIR (1966) S.C. 735, distin-
guished.

2. Inasmuch as both the trial court as well as the first appellate court
F found that the relationship of "landlord and tenant" did not exist between
the plaintiffs and the defendant, further enquiry into the title of the par-
ties, having regard to the nature of the suit and jurisdiction of the court,
was unwarranted. In such a case the provisions of Order VII Rule 7 of
CPC are not attracted. [248-C; 251-A]
,.,
u 3. The sine qua non for granting the relief in the suit, under the Bihar
Building (Lease, Rent and Eviction) Control Act, 1982 is that between the
plaintiffs and the defendant the relationship of 'landlord and tenant' should
exist. The scope of the enquiry before the courts was limited to the question
as to whether the grounds for eviction of the defendant have been made
H out under the Act. The question of title of the parties to the suit premises is
RAJENDRA TIWARY v. BASUDEO PRASAD [QUADRI, J.] 245
not relevant having regard to the width of the definition of the terms A
''landlord" and "tenant'' In clauses (f) and (h), respectively, of Section 2 of
the Act. [247-H; 248·A·B)

4. A Court of Rent Controller having limited jurisdiction to try suits
on grounds specified in the special Act obviously does not have jurisdiction
of the ordinary civil court and therefore cannot pass a decree for eviction of B
the defendant on a ground other than the one specified in the Act. If,
however, the alternative relief is permissible within the am hit of the Act, the
position would be different. Inquiry into the title of the plaintiff is beyond
the scope of the Court exercising jurisdiction under the Act.[250-F ·GI
c
5. Where the relief prayed for in the suit is a larger relief and if no
case is made out for granting the same but the facts, as established, justify
granting of a smaller relief, Order VII Rule 7 permits granting of such a
relief to the parties. However, under the said provisions a relief larger
than the one claimed by the plaintiff in the snit cannot be granted. [250-D]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3406 of 1998.

From the Judgment and Order dated 9.9.97 of the Patna High Court in
S.A. No. 304 of 1990.
E
Akhilesh Kumar Pandey and Ashok Pandey for the Appellant.

Ms. Asha Jain Madan, Mukesh Jain and Sushi! Kr. Pathak for the
Respondents.

The Judgment of the Court was delivered by F

SYED SHAH MOHAMMED QUADRI, J. This appeal, by special
leave, is from the judgment and order of the High Court of Judicature at Patna
in Second Appeal No.304 of 1990 passed on September 09, 1997.

The parties are referred to as they are arrayed in the trial court. The G
respondents-plaintiffs filed Title Suit No.167 of 1982 (12 of 1985) for evic-
tion of the appellant-defendant from holding No.1600 (new) (old holding
No.95) in Ward No.I having an area of 7-1/2 dhurs, Muhalla Waya Bazar,
P.S. Siwan town P.S.No.231, Siwan, Bihar (for short, 'the suit premises') on
H
246 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A three grounds - (I) default of the defendant in payment of rent from August
14, 1981 under clause (d) of sub-section (1) of Section 11; (2) reasonable
personal requirement in good faith for the sons of the plaintiffs under clause
(c) of sub-section (1) of Section 11, and (3) damage to the suit premises under
clause (b) of sub-section (I) of Section 11 of The Bihar Building (Lease, Rent
B & Eviction) Control Act, 1982 (for short, 'the Act'). The plaintiffs averred that
they purchased the suit premises under three registered sale deeds of March 17,
1981, April 09, 1981 and April 14, 1981 from one Kedar Nath Sinha and
immediately thereafter let them out to the defendant on monthly rent of Rs.300;
the defendant did not pay the rent from the date of the commencement of the
tenancy. The plaintiffs have six sons; three of them are major. The plaintiffs
c wanted to set up their children in business as they are unemployed; they,
therefore, require the suit premises in good faith. The defendant contested the
suit denying that he took the suit premises on rent from the plaintiffs. He statecl
that he had taken the suit premises on rent from the said Kedar Nath Sinha
about 33 years back. He, however, alleged that he entered into an agreement
D for purchase of the suit premis~s and a Mahadnama (agreement for sale) was
executed by the said Kedar Nath Sinha in his favour on September 14, 1980
and from that date he has been in possession as owner of the suit premises. The
defendant also filed Title Suit No.232 of 1983 in the Court of Sub-Judge, Si wan
praying the Court to grant specific performance of the said Mahadnama dated
E September 14, 1980. The said suit is pending. He denied that the ground of
personal requirement of the plaintiffs was either reasonable or bonafide.

On April 30, 1985 the trial court after appreciating the evidence on
record dismissed the suit for eviction holding that there was no relationship
of "landlord and tenant" between the plaintiffs and the defendant; it found that
F the plaintiffs had title to the suit premises; however, finding was recorded on
the question of reasonable personal requirement in favour of the plaintiffs.
Against the judgment of the trial court, the plaintiffs filed Title Appeal No.96
of 1985 in the court of 5th Addi. District Judge, Siwan. On May 26, 1990 the
appellate court affirmed the judgment of the trial court and dismissed the
G appeal. The plaintiffs then agitated their claim in Second Appeal No.304 of
1990 before the High Court of Judicature at Patna. On September09, 1997 the
High Court allowed the appeal taking the view that an equitable decree of
eviction could be passed against the defendant on the basis of the title of the
plaintiffs and remanded the case to the first appellate court on the ground that
H it did not record any finding on the question of title of the parties. That
RAJENDRA TIWARY v. BASUDEO PRASAD [QUADRI, J.] 247
judgment of the High Court is brought under challenge in this appeal by the A
defendant.

Mr. P.S. Misra, the learned senior counsel appearing for defendant,
contended that provisions of Order VII Rule 7 of the Code of Civil Procedure
would not be attracted to the suit as the court was exercising limited juris-
diction under the Act. Mr. Misra argued that in a suit for eviction under the B
Act the question of title to the suit premises could not be decided and that
had to be done by a civil court in its ordinary jurisdiction and, therefore, the
High Court erred in law in remanding the case to the first appellate court for
deciding the question of title of the plaintiffs and passing an equitable decree
for eviction of the defendant. c
Ms.Asha Jain Madan, the learned counsel for the plaintiffs, argued that
admittedly the suit premises belonged to the said Kedar Nath Sinha and the
plaintiffs purchased the same under three registered sale deeds from him; they
had, therefore, prima facie title and as admittedly the said Kedar Nath Sinha
had let out the same to the defendant, an equitable decree for his eviction D
ought to have been passed by the courts below. Inasmuch as the trial court
on the basis of the sale deeds and statement of the vendor of the plaintiffs
recorded the finding that the plaintiffs were the owner but the first appellate
court did not go into that question, the High Court was right in directing the
first appellate court to record a finding as to the title to the suit premises. Once
E
the plaintiffs established their title to the suit premises, argued
Ms. Madan, even if the defendant was held not to be the tenant, an equitable
decree could always be passed against the defendant for eviction of the suit
premises.

On the above contentions the question that arises for consideration is: F
whether on the facts and the circumstances of the case the High Court is right
in law in holding that an equitable decree for eviction of the defendant can
be passed under Order VII Rule 7 of C.P.C. and remanding the case to the
first appellate court for recording its finding on the question of title of the
parties to the suit premises and for passing an equitable decree of eviction
G
against the defendant if the plaintiffs were found to have title thereto.

It is evident that while dealing with the suit of the plaintiffs for eviction
of the defendant from the suit premises under clauses (c) and (d) of sub-section
(I) of Section 11 of the Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The sine qua non for H
248 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A granting the relief in the suit, under the Act, is that between the plaintiffs and
the defendant the relationship of 'landlord and tenant' should exist. The scope
of the enquiry before the courts was limited to the question: as to whether the
grounds for eviction of the defendant have been made out under the Act. The
question of title of the parties to the suit premises is not relevant having regard
to the width of the definition of the terms "landlord" and "tenant" in clauses
B
(f) and (h), respectively, of Section 2 of the Act.

Inasmuch as both the trial court as well as the first appellate court found
that the relationship of 'landlord and tenant' did not exist between the plaintiffs
'and the defendant, further enquiry into the title of the parties, having regard
c to the nature of the suit and jurisdiction of the court, was unwarranted.

As the High Court remanded the case to the first appellate court to decide.
the question of title of the parties and grant a decree under Order VII Rule 7,
it will be necessary to quote the said provision here:

D "R. 7. Relief to be specifically stated.

Every plai~t shall state specifically the relief which the plaintiff
claims either simply or in the alternative and it shall not be necessary
to ask for general or other relief which may always be given as the
Court may think just to the same extent as if it had been asked for. And
E
the same rule shall apply to any relief claimed by the defendant in his
written statement."

A plain reading of Order VII Rule 7 makes it clear that it is primarily
concerned with drafting of relief in a plaint. It is in three parts - the first part
F directs that the relief claimed by the plaintiff simply or in the alternative shall
be stated specifically. It incorporates in the second part the well settled prin-
ciple that it shall not be necessary to ask for general or other relief which may
always be given as the Court may think just on the facts of the case to the same
extent as if it has been asked for. The third part says that in regard to any relief
claimed by the defendant in his written statement, the same rule shall apply.
G
In Firm Sriniwas Ram Kumar v. Mahabir Prasad & Ors., AIR (1951)
S.C. 177 it is laid down by this Court :

"Ordinarily, the Court cannot grant relief to the plaintiff on a case for
H which there was no foundation in the pleadings & whi.ch the other side
RAJENDRA TIWARY v. BASUDEO PRASAD [QUADRI, J.] 249
was not called upon or had an opportunity to meet. But when the A
alternative case, which the plaintiff could have made, was not only
admitted by the defendant in his written statement but was expressly
put forward as an answer to the claim which the plaintiff made in the
suit, there would be nothing improper in giving the plaintiff a decree
upon the case which the defendant himself makes. A demand of the B
plaintiff based on the defendant's own plea cannot possibly be re-
garded with surprise by the latter & no question of adducing evidence
on these facts would arise when they were expressly admitted by the
defendant in his pleadings. In such circumstances, when no injustice
can possibly result to the defendant, it may not be proper to drive the C
plaintiff to a separate suit."

In that case the plaintiff filed the suit for specific performance of the
contract for sale. He alleged that he paid part of the consideration under the
contract to the defendant. The defendant denied the execution of the contract.
However, he pleaded that he took money from the plaintiff as a loan. The
D
plaintiff failed to prove the contract for sale though the plaintiff did not claim
alternative relief for recovery of the amount paid under the contract. The Court
passed a decree for recovery of the amount alleged to have been taken by the
defendant as a loan under Order VII Rule 7.
E
In Bhagwati Prasad v. Chandramaul, AIR (1966) SC 735 the plaintiff
laid the suit for ejectment of the defendant on the ground that he let out the
building to the defendant on rent in different portions on completion of con-
struction of each portion. The defendant pleaded that he constructed the house
on the land which belong to the plaintiff. The agreement between them was that F
he would remain in possession of the house until the amount spent by him in
construction of the house would be repaid by the plaintiff. The agreement of
tenancy pleaded by the plaintiff and the case set up by the defendant were
disbelieved by the trial court; nonetheless the trial court held that there existed
the relationship of landlord and tenant, fixed a· reasonable rent and decreed the G
suit for ejectrnent of the defendant and also for recovery of the rent at the rate
fixed by it. The High Court set aside the decree of the trial court with regard
to the agreement of tenancy but confirmed the decree for ejectrnent of the
defendant. On appeal to this Court on a certificate granted by the High Court,
Gajendragadkar, C.J. speaking for a four-Judge Bench observed : H
250 SUPREME COURT REPORTS (2001] SUPP. 5 S.C.R.
A "The general rule no doubt is that the relief should be founded on
pleadings made by the parties. But where the substantial matters
relating to the title of both parties to the suit are touched, though ·
indirectly or even obscurely, in the issues, and evidence has been led
about them, then the argument that a particular matter was not
expressly taken in the pleadings would be purely formal and technical
B
and cannot succeed in every case. What the Court has to consider in
dealing with such an objection is did the parties know that the matter
in question was involved in the trial, and did they lead evidence about
it? !fit appears that the parties did not know that the matter was in issue
at the trial and one of them has had no opportunity to lead evidence
c in respect of it, that undoubtedly would be a different matter. To allow
one party to rely upon a matter in respect of which the other party did
not lead evidence and has had no opportunity to lead evidence, would
introduce considerations of prejudice, and in doing justice to one party,
the Court cannot do injustice to another."
D Where the relief prayed for in the suit is a larger relief and if no case
is made out for granting the same but the facts, as established, justify granting
of a smaller relief, Order VII Rule 7 permits granting of such a relief to the
parties. However, under the said provisions a relief larger than the one claimed
by the plaintiff in the suit cannot be granted.
E
These are cases where the courts which tried the suits were ordinary
civil court having jurisdiction to grant alternative relief and pass decree under
Order VII Rule 7. A court of Rent Controller having limited jurisdiction to try
suits on grounds specified in the special Act obviously does not have jurisdic-
tion of the ordinary civil court and therefore cannot pass a decree for eviction
F of the defendant on a ground other than the one specified in the Act.If,
however, the alternative relief is permissible within the ambit of the Act, the
position would be different.

In this case the reason for denial of the relief to the plaintiffs by the
trial court and the appellate court is that the very foundation of the suit,
G namely, the plaintiffs are the landlords and the defendant is the tenant, has
been concurrently found to be not established, In any event inquiry into title
of the plaintiffs is beyond the scope of the court exercising jurisdiction under
the Act. That being the position the impugned order of the High Court remand-
ing the case to the first appellate court for recording finding on the question
H of title of the parties, is unwarranted and unsustainable. Further, as pointed out
RAJENDRA TIWARY v. BASUDEO PRASAD [QUADRI, J.] 251
above, in such a case the provisions of Order VII Rule 7 are not attracted. For A
these reasons the aforementioned cases are of no assistance to the defendant.
In this view of the matter we cannot but hold that the High Court erred in
remanding the case to the first appellate court for determination of the title
of the parties to the suit premises and for granting the decree under Order VII
Rule 7.
B
However, we make it clear that this judgment does not preclude the
plaintiffs from filing a suit for declaration of title and for recovery of the
possession of the suit premises against the defendant. If such a suit is filed
within three months from today we direct that the same shall be tried along
with suit filed by the defendant, Title Suit No.232/1983, in the court of Sub- c
Judge, Siwan (Exbt.il) for specific performance of the contract against the
said Kedar Nath Sinha and the plaintiffs.

In the result the judgment of the High Court under challenge is set
aside. The suit of the plaintiffs (respondents) is dismissed. The appeal of the
defendant (appellant) is allowed accordingly but in the circumstances of the D
case without costs.

K.K.T. Appeal allowed.

-