Ladu Gopal Kedia v. Bibi Jaibunissa — 1991 DIGILAW 149 (PAT)

JUDGMENT S. B. Sinha, J. The question as to whether in an eviction suit filed by a landlord on the ground of his personal necessity expiry of the period of lease and also on any other grounds as envisaged under section 11(1) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the issue relating to the personal necessity to the landlord expiry of the period of lease, can be decided as a preliminary issue upon following the procedure laid down under Section 14 thereof or not, is the question involved in this application. 2. The fact of the matter lies in a very narrow compass. The plaintiff opposite party filed Eviction Suit no. 5/89 against the petitioner inter alia on the ground that she requires the suit premises for starting a business by her eldest son who had been sitting idle as well as on the ground that the petitioner has defaulted in payment of rent from November, 1988 to January, 1989. 3. The petitioner appeared in the said suit and filed written statement denying and disputing the allegation made in the plaint. According to the petitioners, a sum of Rs. 5000/- was spent for renovation of the suit premises which was agrees to be refunded and/or adjusted towards future rent. The rate of monthly rent was also disputed by the defendant which, according to them, was Rs. 140/- and not Rs. 500/- as claimed by the opposite party. So far as the ground of personal necessity of the plaintiff is concerned, it was contended that the purported need is not bonafide and genuine as the plaintiff has inducted one Md. Manir as a monthly tenant in a premises having almost similar accommodation and which is situated on the northern side of the suit premises. In the said situation, the plaintiff filed an application praying therein that the suit be disposed of upon determination of the issue of personal necessity alone. 4. The defendant/petitioner filed a rejoinder to the said application stating therein that as in the said suit besides the ground of personal necessity the plaintiffs have also sought for a decree for eviction for realisation of arrears of rent as also on the ground that the petitioner is a defaulter, all the issues should be decided together. 4. The defendant/petitioner filed a rejoinder to the said application stating therein that as in the said suit besides the ground of personal necessity the plaintiffs have also sought for a decree for eviction for realisation of arrears of rent as also on the ground that the petitioner is a defaulter, all the issues should be decided together. The defendant further contended that as he has also questioned his signature on the counter-foil of the rent receipts, the same should also be considered. 5. By an order dated 17.5.1990, the learned court below directed that the issue of personal necessity would be decided at the first instance. It was further directed that as the defendant has denied his signature on the counter-foild of the rent receipts and in view of the fact that the plaintiff had also prayed for a decree for arrears of rent, the disputed signatures of the defendants would be sent to a handwriting expert for comparison. 6. The defendant deposited the costs of the hand-writing expert and filed another application stating that as the suit is not mature for hearing the court should decide all issues framed in the suit together. By reason of the impugned order dated 19.7.1990, the learned court below in view of a decision of this Court in Bireshwar Chakavorty vs. union of India and others, reported in 1989 B.B.C.J. 706 directed that the issue of personal necessiy shall be decided as a preliminary issue in terms of its earlier order dated 17.5.1990. 7. Before the learned court below, the defendant/petitioner relied upon Major S.S. Khanna Vs. Brig. F.J. Dillon reported in AIR 1964 SC 497 and in M/s. Basti Ram Roop Chand Vs. M/s. Radhey Shyam Gulab Chand (AIR 1973 Allahabad 499) which are authorities for the proposition that normally all the issues should be tried together. The learned court below, however did not distinguish the said decisions. 8. Section 11 of the said Act, prohibits eviction of a tenant except in execution of a decree passed by the court on one or more of the grounds mentioned therein. The learned court below, however did not distinguish the said decisions. 8. Section 11 of the said Act, prohibits eviction of a tenant except in execution of a decree passed by the court on one or more of the grounds mentioned therein. One of grounds as contained in clause (c) of section 11(1) of the said Act, for eviction of a tenant in terms of the said provision is : "Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benifit the building is held by the landlord." 9. From a perusal of the said provision it would be evident that a suit for eviction can be filed by a landlord on more than one grounds as specified therein. Section 14 of the Act, however, provides for a special procedure for disposal of cases for eviction on the ground of bonafide requirement or on the ground of expiry of the period of lease as specified in clause 'c' or clause 'e' of sub-section (1) of section 11. Section 14, therefore, carves out an exception from the general rule that in a suit for eviction filed by tae landlord against the tenant, the procedures laid down under the Code of Civil Procedure would be followed. 10. From a combined reading of Sections 11 and 14 of the Act, therefore, it becomes clear that the special procedure laid down under section 14 of the Act, can be taken recourse to only in a case where the ground for eviction is covered by clause 'c' or 'e' of sub-section (1) of section 11 of the Act. where, however, the landlord choses to join more than one ground of eviction which may include one of the grounds specified in clause 'c' or clause 'e' of sub-section (1) of section 11 of the Act, the general provisions laid down for deciding a suit shall be applicable. 11. In Lalan Kishore Sharan Vs. where, however, the landlord choses to join more than one ground of eviction which may include one of the grounds specified in clause 'c' or clause 'e' of sub-section (1) of section 11 of the Act, the general provisions laid down for deciding a suit shall be applicable. 11. In Lalan Kishore Sharan Vs. Tarachand Agarwal C.R. No. 1406/83, a Division Bench of this Court (reported in 1984 B.B.C.J. 396) held that in view of Order 2 Rule 6 of the Civil Procedure Code, a suit based on the ground of clauses 'c' and 'e' of section 11 (1) of the Act, should be tried upon following the special procedures laid down under section 14 of the Act, and a separate ordinary trial with respect to the other cause of action should follow. 12. It appears that one of the parties, namely. Tarachand Agarwal preferred an appeal before the Supreme Court of India being Civil Appeal No. 3563 of 1984 and by consent of the parties, the said appeal was and allowed and the judgment and order of the High Court dated 13.4.1984 was set aside and the suit was remitted to the court of Sub-ordinate Judge for trial afresh trial on all the issues involved in the suit (See 1985 PLJR 18 (SC). 13. The effect of the judgment of the Supreme Court in Tarachand Agarwal's case (supra) came up for consideration before a Division Bench of this Court in Atahar Hussain Vs. Kanhaiya Lal Gupta in C.R. 1419 of 1985 disposed of on 14.2.1986, wherein it win held that by reasion of the consent order passed before the Supreme Court, the principles decided in Lalan Kishore Sharan's case (supra) were net washed away and the same still holds good. 14. The Matter again Game up for consideration again before a learned Single Judge of this Court in Bireswar Chakravarty Vs. Union of India & others reported in 1989 B.B.C.J. 706 where in it was held that in view of the Division Bench decision in Atahar Hussain's case (supra), the principles laid down in Lalan Kishore Sharan's case (supra) still holds good. 15. It is true that a consent decree is merely an agreement between the parties with the seal of the court superseded to it. 15. It is true that a consent decree is merely an agreement between the parties with the seal of the court superseded to it. A consent order or decree, thus, not only does not operate as res judicata, but as thereby the issues joined at by the parties are not adjudicated upon, the same cannot be used as a precedent. But the question which arises for consideration is whether in view of the fact that 1he judgment of this Court in Lalan Kishore Sharan's case (supra) having been set aside by the Supreme Court, the ratio there of was available or not? 16. In the heirarchy of court, when a judgment is reversed by a higher court it ceases to have any effect at all. Dias in his Jurisprudence 5th Edition at page 144 states the law thus : "Reversal: A case may be reversed on appeal. The effect of reversal is normally that the first judgment ceased to have any effect at all. The situation is different if the case is affirmed or reversed by an appellate court on a different point from that on which the decision in the lower court was based. In one case, a Master of the Rolla said that in such a situation the previous decision will be 'of no effect at all.' This probably goes too far, and in another case, it was said that the first judgment remains binding. The truth seems to be that in such a situation a latter court has freedom to deal as it pleases with the earlier decision." (underlining is mine for emphasis) 17. Salmond in his Jurisprudence 12th Edition at page 180 states the law thus : "Various methods of determining the ratio have been advanced. The 'reversal' test of Professor wambaugh suggested that we should take the proposition of law put forward by the judge, reverse or negate it, and then see if its reversal would have altered the actual decision. If so, then the proposition is the ratio on part of it; if the reversal would have made no different it is not. In other words the ratio is a general rule without which the case would have been decided other wise. This test, however, will not help us. If so, then the proposition is the ratio on part of it; if the reversal would have made no different it is not. In other words the ratio is a general rule without which the case would have been decided other wise. This test, however, will not help us. In cases where no proposition of law is given and where all that is contained in the reports is a statement of the facts together with the order that was made. Nor is it very helpful where a Court gives several reasons for its decision. In such case, we could reverse each reason separately and the decision would remain unaltered, since it could still rest on the other grounds. Logically it might seems that the first reason therefore is the ratio and the rest mere obiter dicta. Quite often, infact, where a case is argued on several grounds the judge will decide it on one of these and merely indicate his views on the remaining points, so that here his first proposition of law alone will constitute the ratio. Sometimes, however, he will declare that he is deciding the case on more than one ground and here each proposition on which he bases the decision will quality as a ratio." 18. K.P. Chakravarti in his Jurisprudence and Legal Theory at page 148 states the law thus;- "Reversal; The effect of reversal is normally that the first judgment is rendered nullity and void. Reversal occurs when the decision is reversed by the Appellate Court on appeal. If, however the case is reversed on a different point the ruling at the first instance remains an authority. The ruling given by the King's Bench in Young & Bristol Aeroplane (1944) KB 718 remains to be an authority despite the fact that the decision was affirmed by the Court of Appeal on a different point." 19. An appeal whether in terms of Article 136 of the Constitution or otherwise means removal of a cause from an inferior to a superior court for the purpose of deciding the soundness of the decision of the in, ferior court. An appeal is a continuation of an original proceeding and a stage in the suit itself." 20. An appeal whether in terms of Article 136 of the Constitution or otherwise means removal of a cause from an inferior to a superior court for the purpose of deciding the soundness of the decision of the in, ferior court. An appeal is a continuation of an original proceeding and a stage in the suit itself." 20. Article 142 of the Constitution of India reads as follow;- “142 (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament the Supreme Court Shill, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the invesigation or punishment of any contempt of itself.” The said provision, thus confers upon the Supreme Court to pass any order for doing complete justice in any cause or matter pending before it and such an order is enforceable throughout the territory of India. 21. In this view of the matter too, the decision of the Supreme Court could not have been ignored only because it was a consent order. So far as the said decision is concerned, it becomes binding on parties thereto. However, in such a situation, it would be for the later court to consider the matter afresh. 22. In Lalan Kishore Sharan's case (supra), the Supreme Court having set aside the judgment of this court on consent it did not declare any 'law' within the meaning of Article 141 of the Constitution of India, but the reasonings of the Division Bench in Lalan Kishors Sharan's case (supra) came to naught, as the same was reversed. 22. In Lalan Kishore Sharan's case (supra), the Supreme Court having set aside the judgment of this court on consent it did not declare any 'law' within the meaning of Article 141 of the Constitution of India, but the reasonings of the Division Bench in Lalan Kishors Sharan's case (supra) came to naught, as the same was reversed. Therefore, in my opinion, the reasoning of Lalan Kishore Sharan's case were not available to a court which was required to decide the matter afresh and while doing so certainly it was open to it to adopt the same line of reasonings or to arrive at a different conclusion but the decision could not have been followed in the sense that it had the value of a binding procedent. 23. However, in this case as the entire matter has been referred to a Full Bench, this Court may also consider the correctness of the decision of the Division Bench in Lalan Kishore Sharan's case (supra). In Lalan Kishore Sharan's case, it was hold that Order 2 Rule 2 of the Code of Civil Procedure will not be a bar in maintaining two suits for eviction by the same landlord against the same tenant in respect of the same tenanted premises, if two different grounds exist therefor. The learned Judges for this ratio followed the decisions of the Supreme Court in V. Dhanapal Chattiar Vs. Yasodai Ammal reported in AIR 1979 SC 1745 and Kewal Singh Vs. Lajbanti reported in AIR 1980 SC 161 . 24. Order 2 of the Code of Civil Procedure lays down the procedure relating to frame of a suit. Order 2 Rule 2 provides that a suit should include the whole claim. A cause of action within the meaning of Order 2 Rule 2 of the Code of Civil Procedure mean the cause of action for which the suit was brought meaning thereby the bundle of facts which would entitle the plaintiff to the right claimed to obtain a decree as against the defendant and/or the infringement of his right at the hands of the defendent. 25. Order 2 Rule 3 of the Code of Civil Procedure authorises a plaintiff to unite several causes of action against a single defendant, subject, however, to the limitation that if all the causes of action cannot be conveniently tried together, order may be made directing separate trials of the same. 25. Order 2 Rule 3 of the Code of Civil Procedure authorises a plaintiff to unite several causes of action against a single defendant, subject, however, to the limitation that if all the causes of action cannot be conveniently tried together, order may be made directing separate trials of the same. The Code permits a joinder of two causes of action in one suit in order to avoid multiplicity of proceeding. In Padam Singh Jain Vs. M/s Chandra Brothars reported in 1990 (1) PLJR 797, this Court has held that when two or more plaintiffs are jointly interested in two or more causes of action against the same defendants, they canjoin all the causes of action in the same suit. 26. In view of the Lalan Kishore Sharan's decision itself the choice is of the plaintiff to file a suit for eviction on the grounds as envisaged in clause 'c' or 'e' of section 11 of the said Act, together with any other ground or to file two separate suits. Order 2 Rule 6 reads as follows :- "6. Power of Court to order separate trials : where it appears to the court that the joinder of causes of action in one suit may embarass or delay the trial or is otherwise inconvenient the Court may order separate trials or make such other order as may be expedient in the interests of justice." Embarassment, delay or inconvenience are, thus, the sine qua non for exercising the jurisdiction by the court in terms or order 2 Rule 6 of the Code of Civil procedure. 27. Exercise of power to order separate trials would depend upon the facts and circumstances of each case and the privilege is that of the court and the parties to the lis cannot claim the same as of right. If the trial court passes such an order, the same ill a given situation may fall for consideration by the appellate court also when a decree is passed in the suit. Order 2 Rule 6 of the Civil Procedure Code, therefore, cannot be taken recourse to where the procedures are different and whereby a party to a lis would be deprived of a right of appeal. 28. Order 2 Rule 6 of the Civil Procedure Code, therefore, cannot be taken recourse to where the procedures are different and whereby a party to a lis would be deprived of a right of appeal. 28. The provions of Order 2 Rule 6 if read along with the other provisions of Order 2 and particularly Rule 3 there of, there would be no manner of doubt that the object of the Code of Civil Procedure is to avoid multiplicity of proceedings as far as possible, since, in a given case, recourse to the provisions of Rule 6 of Order 2 is to be taken as of necessity. 29. In terms of order 20 Rule 5 of the Civil Procedure Code, the court is enjoined with a, duty to state its finding or decision with the reasons therefor upon each separate issue unless the finding upon anyone or more of the issues is sufficient for the decision of the suit. Order 20 Rule 5, therefore, postulates that the court should not only try all the issues together but also render its decision on all such issues, except in a case where decision on one or more of the issues would be sufficient for the decision of the suit meaning thereby the entire suit. 30. Order 14 Rule 2 of the Code of Civil procedure also provides that the court should pronounce judgment on all issues. Sub-rule (2) of Rule 2 of Order 14 of the Civil Procedure Code, however, makes an exception only in a case where issues of both of law and of fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of in an issue of law only when the same relates to :- "(a) the jurisdiction of the court; or (b) a bar to the suit created by any law for the time being in force. and for that purpose may, if it thinks fit, postpone settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.’ Rule 2 of Order 14 of the Code of Civil Procedure thus also provides that normally the issues involved in a wit should be deeded together unless by reason of a decision one or more of the issues, the entire suit can be disposed of subject to the limitations contained in sub-rule (2) of Rule 2 of Order 4 of the Code of Civil procedure. Sub-rule (1) of Rule 2 of Order 14 of the Code of Civil procedure is a pointer to the fact that the court shall pronouce judgments on all issues although in its opinion the ces may be disposed of on a preliminary issue. Such an amendment had been brought in by reason of Civil Procedure (Amendment Act, 1976 in view of the tact chat in appelable cases, the court as far as possible shall decide on al issues inasmuch as, a pieoemeal trial might lead to protracted litigation and repeated appears arising out of the same suit. 31. Order 41 Rule 23 of the Code of Civil Procedure also provide that the court may remand a suit to the trial curt for a decision on all the issues in the event it is found that the decision of the court disposing of a suit on a preliminary issue was erroneous. 32. From the provisions aforementioned, it is, therefore, clear that law leans in favour of decision of a suit on all the suit on all the issue together subject to the exception contained in some of the provisions of the code is mentioned hereinbefore. Such exception as envisaged under Rule 2 of Order 6 or sub-Rule 2 of Rule 2 of order 14; or Rule 5 of order 20 of the Code of Civil Procedure must be strictly construed so as to give effect to the scope and object of the Code as amended by Code of Civil Procedure (Amendment ) At, 1976. 33. It is now well settled that special procedure laid down under Section 14 of the Act, should be taken recourse to only if a suit is filed on a ground mentioned in clause 'c' or 'e' of section 11(1) of the Act. 33. It is now well settled that special procedure laid down under Section 14 of the Act, should be taken recourse to only if a suit is filed on a ground mentioned in clause 'c' or 'e' of section 11(1) of the Act. Reading the provisions of Section 14 of the Act, as a whole, it is evident that special procedure laid down therein have to be taken recourse to only if the conditions precedent therefor exist. 34 Sub-section (2) of Section 14 provides that the court would issue summons in prescribed form in every suit referred to in Subsection (1) without delay. In terms of sub-section (3) of Section 14, the court shall, in addition to, and simultaneously with, the issue of summons for service on the tenant or tenants also direct the summons to be served by registered post with acknowledgement due addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides. If the circumstances so require, the Court may also direct the publication of she summons in the official gazette or in newspapers having circulations in the locality in which the tenant is last known to have resided or carried on business or personally worked for gain. Clause (2) of Sub-section (3) of section 14 provides that when an acknowledgement purporting to be signed by the tenant or his agent is received back with an endorsement purporting to have been by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article, the court may declare that there has been a valid service of summons. Sub-section (4) of Section 14 provides that the tenant has to obtain leave from the court to contest the prayer for eviction by filing an affidavit stating the grounds therefor. Sub-section (5) of Section 14 provides as follows:- “The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in clauses (c) and (e) of Sub-section (1) of section 11.” 35. Sub-section (5) of Section 14 provides as follows:- “The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in clauses (c) and (e) of Sub-section (1) of section 11.” 35. The provisions contained in section 14 of the Act, as referred to hereinbefore, in unmistakable terms point out that the special procedures laid down therein shall be taken recourse to from the time the suit is instituted. It is however true that the said provisions are directory in nature but the same are required to be substantially complied with. The rules of procedure are meant to be observed. Once a suit is instituted on a ground other than specified in clause 'c' or 'e' of sub-section (1) of Section 11 of the Act, ordinary procedure laid down in the Code of Civil procedure would have to be followed. Once the ordinary procedures for determining the suit for eviction are directed to be followed by the court, it must be held that by nece8sary implication the court refused to follow the special procedures as laid down under section 14 of the Act. 36. Apart from the said procedure laid down in Section 14 of the Act, the same also takes away the right of a tenant to contest the claim of a plaintiff in the event the court does not give to the tenant leave to contest the suit. Such an application for leave to contest the suit has to be filed in terms of the procedures laid down therein and in default of the appearance in pursuance of the summons by the tenant, the statements made by landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order of eviction on the ground aforesaid. As noticed hereinbefore, the court can grant leave to the tenant to contest a suit only if the affidavit filed by the tenant discloses such facts as would disentile the landlord from obtaining an order of eviction. The provisions contained in Section 14 of the said Act, are more stringent and, thus, the same can be taken recourse to only if the conditions precedent therefor are fulfilled and not otherwise. 37. The provisions contained in Section 14 of the said Act, are more stringent and, thus, the same can be taken recourse to only if the conditions precedent therefor are fulfilled and not otherwise. 37. The right of a tenant to prefer an appeal from a decree is a valuable right. Such a right will have to be determined at the time of institution of the suit depending upon the circumstances as to whether in a suit for eviction, the special procedure laid down under section 14 of the Act, had been taken recourse to or not. A right of appeal vested in a defendant by reason of following the ordinary procedure in a suit for eviction; meaning thereby by not following the special procedure laid down under Section 14 of the Act, cannot be taken away nor can be permitted to be taken away by taking recourse to Rule 6 of Order 2 of the Code of Civil procedure or other wise. 38. Order 2 Rule 6 of the Civil Procedure Code, thus, will have no application in a case where thereby the right of appeal is taken away or the procedures for trial of the issues will be different. It is well known that what cannot be done directly cannot be permitted to be done indirectly. On the other hand, as noticed in Lalan Kishore Sharan's case, the option is with the landlord to file one suit or two suits. Once he files a suit for eviction inter alia on the ground other than mentioned in clauses 'c' or 'e of section 11 of the Act, he does so at his own peril. He at a subsequent stage of the suit cannot then turn around and say that special procedures laid down under Section 14 of the Act, should be taken recoure to by confining his case to a ground envisaged under clause 'c' or clause 'e' of section 11(1) of the Act. 39. The same in my opinion is impermissible in law. Once a suit is instituted, the ordinary procedures of the Code of Civil Procedure are to be followed; summons should be sent to the defendant for settlement of the issues and the defendant in such a situation would have a right to file written statement. 39. The same in my opinion is impermissible in law. Once a suit is instituted, the ordinary procedures of the Code of Civil Procedure are to be followed; summons should be sent to the defendant for settlement of the issues and the defendant in such a situation would have a right to file written statement. Once such a procedure is followed and summons are issued and the defendants upon appearing in the suit files a written statement whereafter issues are settled. the question of taking recourse to special procedures laid down under Section 14 of the said Act, would not arise only because at a later stage the plaintiff wishes that the suit may be decided on a preliminary issue of his personal necessity. 40. Section 14 of the Act, has been enacted for the benefit of the landlord only in respect of grounds as mentioned in clause 'c' and ‘e’ of sub-section (1) of Section 11 of the Act. He is entitled to avail this benefit only in the event he confines the claim to the permissible grounds. However, if he adds grounds other than those specified, he forgoes the privilege of the summary proceeding. 41. The reasonings adopted in Lalan Kishore Sharan's case, therefore, are not correct in law and thus the court cannot direct either as a matter of course or by exercising its jurisdiction to separate trial in terms of order 2 Rule 6 of the code of Civil Procedure. Procedure laid down under Order 2 Rule 6 of the Code of Civil Procedure should be taken recourse to in exceptional cases and only when the court thinks that the conditions precedent therefor exist. 42. In a suit for eviction, the defendant may raise a question which if decided in his favour, the entire suit may have to be dismissed, e.g., denial of relationship of landlord and tenant; absence of the plaintiff's tine in the suit property, maintainability of the suit etc. In a suit of eviction, therefore, if all the issues are taken up for' hearing together, the court may conveniently dispose of all the issues including the issues which go to the root of the matter. In a suit of eviction, therefore, if all the issues are taken up for' hearing together, the court may conveniently dispose of all the issues including the issues which go to the root of the matter. On the other hand if the issue of personal necessity is taken up as a preliminary issue, it will have to decide other issues together with it e.g. the issue with regard to the denial of relationship of landlord and tenant which would be a common issue both in respect of the ground for eviction on the ground of personal necessity and/or any other ground specified in sub-section (1) of Section 11 of the Act, e.g. the ground of default or sub-letting. In such a situation, it will, therefore, be convenient to hear all the issues together when the suit for eviction is based upon the ground of personal necessity as also on the ground of default. In my view, piecemeal decisions in such a suit will, in fact, be inconvenient. The views taken by me finds support from a decision of S.J. Hyder, J in Riazul Haque Vs. Maimun Khatoon and another reported in 1985 P.L.J.R. 490. I respectfully agree with, the said view. 43. In this view of matter, in my opinion, it has to be held that Lalan Kishore Sharan's case was wrongly decided and thus must be overruled. For the same reasons, the decision of this Court in Atahar Hussain (supra) and in Biseswar Chakrabarty must also be overruled. 44. Mr. N.K. Prasad, however, submitted that in view of the Court's earlier decision dated 17.5.1990, the impugned order cannot be decided as the said order shall operate as res judicata. It is true that the principles of res judicata is attracted also at two stages of the same proceeding but it is 'also well known that when an order is a nullity, the principles of res judicata cannot be invoked. A pure question of law touching the jurisdiction of the court does not operate as res judicata. See Isabella Johnson Vs. M.A. Susai reported in 1991 (1) SCC page 494. 45. A pure question of law touching the jurisdiction of the court does not operate as res judicata. See Isabella Johnson Vs. M.A. Susai reported in 1991 (1) SCC page 494. 45. In view of my findings aforementioned it must be held that the learned court below had no jurisdiction to direct separation of trial for the purpose of deciding question of personal necessity of the plaintiff as a preliminary issue and, thus, the said order dated 17.5.1990 being a nullity, the principles of res judicata will have no application in this else. 46. In the result, this application is allowed, the impugned order dated 19.7.1990 passed in Eviction suit no. 5/89 is set aside and the learned court below is directed to decide all the issues involved in the suit together. However, in the facts and circumstances of the case, there will be no order as to costs. 47. I have perused the judgment prepared by S.B. Sinha, J. Brother Sinha has noticed that the judgment and order of the Division Bench of this Court in Lallan Kishore Sharan Vs. Tara Chand Agrawal 1984 BBCJ 396 : were set aside by the Supreme Court in Tara Chand Agrawal Vs. Lallan Kishare saran : 1985 PLJR 18 (S.C.) : by consent of parties. 48. The effect of reversal of a judgment in appeal is that the first judgment ceases to have any effect. This is so axiomatic that it does not require any elucidation. Inspite of this legal position, a Division Bench of this Court in Athar Hussain Vs. Kanhaiya Lal Gupta : Civil Revision No. 419 of 1985 disposed of on 14th February, 1986 : held as follows :- "So, the true effect of the order passed by the Supreme Court was that the operative part of the order passed in the case of Lallan Kishore saran (Supra) was set aside and not the principle decided in that case. Therefore, the legal principle decided by this Court in the said case will hold good, even though the operative part of the order has been set aside by the Supreme Court on the basis of the consent of the parties ". (Emphasis added) 49. Therefore, the legal principle decided by this Court in the said case will hold good, even though the operative part of the order has been set aside by the Supreme Court on the basis of the consent of the parties ". (Emphasis added) 49. It appears that it was not brought to the notice of the learned Judges of that Bench hearing the Civil revision application that the Supreme Court not only set aside the operative part of the judgment in Lallan Kishore saran, but also the judgment. In other words, the judgment and order of Lallan Kishore saran decided by this Court were set aside by the Supreme Court in Tara Chand Agarwal (Supra). Judgment has been defined in section 2(9) of the Code of Civil procedure (the Code) to mean the statement given by the Judge on the grounds of a decree or order. The judgment also, therefore, was not available while the Bench was hearing civil revision filed by Athar Hussain (Supra). 50. We have already noticed that judgment and order in Lallan Kishore Saran were set aside by the Supreme Court with consent of the parties. The order of the Supreme Court, therefore, is not a precedent. In view of that fact, the Bench in Athar Hussain (Supra) could have given its reason for adopting the reasonings of Lallan Kishore Saran. It could have also given -its own reasoning for coming to the same conclusion as in Lallan Kishore Saran. The Division Bench followed neither of the aforesaid two courses. A learned Single Judge followed Athar Hussain (Supra) in Bireshwar Chakravarty and another Vs. Union of India and others : 1989 BBCJ 706 . Both Bireshwar Chakravarty (Supra) and Athar Hussain (Supra) were not correctly decided. Those are overruled. 51. Learned counsel appearing on behalf of the opposite party submitted that notwithstanding the fact that the judgment in Lallan Kishore Saran (Supra) was not available, the order of the court below by which it has held that the issue of personal necessity can be decided first is correct in law. He adopted the reasoning of Lallan Kishore Saran (Supra). 52. Procedure to be followed when a suit is filed has been laid down in the Code. Broadly, it provides that when a suit is filed, summons for settlement of issues must be served on the defendant. He adopted the reasoning of Lallan Kishore Saran (Supra). 52. Procedure to be followed when a suit is filed has been laid down in the Code. Broadly, it provides that when a suit is filed, summons for settlement of issues must be served on the defendant. The defendant has, as a matter of course, right to file written statement. Issues are to be settled. All issues are to be tried together and exception to this has been provided under Order XIV Rule 2 of the Code. The decree passed in a suit is appealable. This procedure shall have to be followed by Court in a suit filed by the plaintiff against a tenant, if decree for eviction is prayed on any of the grounds mentioned in Section 11(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (the Act) except grounds mentioned in Section 11(1)(c) i.e. the ground of personal necessity and or (e) : a tenant holding over on the expiry of a fixed period of lease. However, if a suit is filed for eviction on the ground covered by section 11(1)(c) and/or (e), special procedure has been laid down in section 14 of the Act. Broadly, it provides that a tenant shall not be entitled to contest the suit without obtaining leave of the Court. If the defendant default in appearing in pursuance of summons or does not obtain leave to contest the suit, the statement made by the landlord in the suit shall be deemed to be admitted by the tenant and an order for eviction shall follow. If the leave to contest a suit is granted to the defendant, he must file written statement within fifteen days from the date of the order. Section 14(7) provides that notwithstanding anything contained in the Code or any other Law, while hearing a suit, under this section, the Court shall follow the practice and procedure of the Court of Small Causes including recording of evidence i.e. Chapter IV of Provincial Small Causes Courts Act. 1887. There is no appeal against the order of eviction and revision to the High Court is provided. 53. So Court hearing the suit filed for eviction of a tenant on the ground of personal necessity or on the ground that the period of lease has expired, the practice and procedure of a Court of Small Causes shall have to be followed. 53. So Court hearing the suit filed for eviction of a tenant on the ground of personal necessity or on the ground that the period of lease has expired, the practice and procedure of a Court of Small Causes shall have to be followed. Therefore, one procedure which shall not be followed is the provision of Order XIV, the settlement of issues and determination of suit on issues of law or on issues agreed upon. If Order XIV does not apply to a suit for which the procedure prescribed in the Provincial Small Causes Courts Act, is to be followed, there is no question of framing any issues in a suit where the procedure prescribed under section 14 of the Act, is to be followed. 54. Let us envisage the situation when a suit is filed on the ground of default of payment of rent by the tenant i.e. Section 11(1)(d) of the Act, and as also on the ground of personal necessity and/or expiry of the period of lease i.e. Section 11(1)(c) and (e) when two different procedures ale to be followed as held in the reasoning of Lallan Kishore Saran. For deciding the suit on the first ground, the Court shall have to follow the procedure laid down in the Code and for deciding the other two grounds, the Court shall have to follow the special procedure laid down in section 14 of the Act. Such different procedures shall have to be followed by the Court after the plaint is registered as suit, as was in Lallan Kishore Saran. On the question of default, the defendant has, as a matter of course, right to file written statement and contest it, whereas on the question of personal necessity and expiry of lease, the defendant shall have to obtain leave to file written statement and if he does not do so and does not appear in response to a summon, order of eviction shall follow. I have already noticed the difference in the procedure in a suit for eviction filed on, the ground of default and on the ground of personal necessity. 55. In Lallan Kishore Saran (Supra) it was held that recourse may be had to Order II Rule 6. I have already noticed that a suit to which Section 14 of the Act, is applicable, the practise and procedure of Small Causes Court shall apply. 55. In Lallan Kishore Saran (Supra) it was held that recourse may be had to Order II Rule 6. I have already noticed that a suit to which Section 14 of the Act, is applicable, the practise and procedure of Small Causes Court shall apply. Order II Rule 6 does not contemplate a suit where two distinct procedures are to be followed after the plaint is registered. It shall apply to a suit where the procedure laid down in the Code is to be followed. 56. To my mind, when a right has accrued to the plaintiff to the a suit for eviction of his tenant on the ground of personal necessity and/or the expiry of specific lease together with one or other of the grounds mentioned in section 11(1) and if the plaintiff includes all these grounds in the plaint, the procedure prescribed in the Code shall have to be followed. When a suit is filed for which the procedure prescribed in the Code is to be followed, party has a right to file appeal against a decree under section 96 of the Code. If two procedures are to be followed, one as provided under the Code and the other as provided under section 14 of the Act, if the defendant fails in the suit, he shall file an appeal against part of the judgment and decree relating to issue of default and revision under section 14(8) of the Act, against the order of eviction on the point of personal necessity. I am, therefore, of the definite opinion that if the plaintiff wants that special procedure under section 14 of the Act, should be followed, he must pray for eviction on the ground stated in section 11(1)(c) and (e) of the Act. If he prays for eviction also on other grounds in that suit, the Court shall have to follow the procedure laid down in the Code and whether an issue should be tried as a preliminary issue has to be decided keeping in view Order XIV Rule 2 of the Code. For the reasons aforesaid, the court below could not have held that it will try the issue of personal necessity as a preliminary issue. The reasoning of Lallan Kishore Saran (Supra) cannot be sustained. 57. It is not necessary to notice Article 142 of the Constitution. For the reasons aforesaid, the court below could not have held that it will try the issue of personal necessity as a preliminary issue. The reasoning of Lallan Kishore Saran (Supra) cannot be sustained. 57. It is not necessary to notice Article 142 of the Constitution. I am not expressing opinion with regard to some formulations made by Brother Sinha. No opinion need, therefore, be expressed in this case regarding correctness or otherwise of formulations made in Lallan Kishore Saran (Supra) other than that with which we are concerned in this case. Various Orders of the Code has been noticed by Sinha, J. In view of the fact that for hearing of suit to which Section 14 is attracted, the practice and procedure of Small Causes Court are to be followed, it is not necessary to notice those and other Orders of the Code. 58. I agree with the order proposed by Sinha, J. Ravi Nandan Sahay, J. I also agree and have nothing to add. Revision allowed and case remanded.