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1999 DIGILAW 978 (PAT)

Sitaram Chourasia v. Mira Devi

1999-09-23

S.N.JHA

body1999
Judgment 1. This civil revision by the defendant arises from Title Suit No. 8/97 of the court of 5th Subordinate Judge, Deoghar. By the impugned order dated 8.4.99 the court below has struck off paragraphs 3, 4, 5, 12 and 15 of the written statement under Order 6 Rule 16 of the Civil Procedure Code (in short the Code). 2. The plaintiffs have filed the abovementioned suit for eviction on the ground of personal necessity. According to them, in the written statement the defendant admitted to have paid rent to the plaintiffs vendor Shanti Devi and also tendered rent to the plaintiffs and, thus, the relationship of landlord and tenant between the parties is admitted. The averments made in paragraphs 3, 4, 5, 12 and 15 of the written statement regarding the nature of the property, competence of the Mahanth to sell the property to Shanti Devi, nature of title of Shanti Devi and the plaintiffs are therefore unnecessary and frivolous. The plaintiffs filed application for deletion of those averments which has been allowed by the impugned order. 3. Shri Shashi Shekhar Dwivedi, learned counsel for the defendant- petitioner, submitted that the impugned order is beyond the scope of Order 6 Rule 16 of the Code. He contended that a defendant in an eviction suit is entitled to question the title of the plaintiff and also plead an alternative case. He also submitted that the application for deletion of the averments was not bona fide. He relied on decisions reported in AIR 1982 Supreme Court 1213 and 1981 BBCJ 185 (SC) : AIR 1981 Supreme Court 1113. 4. Shri Sidheshwari Prasad Singh, learned counsel for the plaintiffs-opposite party, submitted that the suit is being tried as per the procedure prescribed under section 14 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982. Since the defendant has obtained leave to contest under section 14(4) of the Act it is not open to him to challenge the relationship of landlord and tenant. He also submitted that a tenant who has paid rent cannot challenge the title of the landlord plaintiff. He relied on decisions reported in 1989 PLJR 587 and 1999(1) PLJR 379. He further submitted that regard being had to the nature of the suit, averments relating to the nature of the property as being trust property were wholly unnecessary. He also submitted that a tenant who has paid rent cannot challenge the title of the landlord plaintiff. He relied on decisions reported in 1989 PLJR 587 and 1999(1) PLJR 379. He further submitted that regard being had to the nature of the suit, averments relating to the nature of the property as being trust property were wholly unnecessary. He urged that by making unnecessary averments the petitioner wants to enlarge the scope of the suit and if such averments are allowed to remain as part of the pleading, tomorrow the petitioner may apply to add the Trust Board as party. 5. It is true that a tenant cannot challenge the title of the person to whom he has paid rent on the principle of estoppel between landlord and tenant. However, here is nothing in the Civil Procedure Code to prevent a party whether he is plaintiff or defendant to plead an alternative case to the extent of inconsistency; and to seek an alternative relief as a plaintiff and to set up an alternative defence, as a defendant. The pleading is not proof and the party whether plaintiff or defendent, is required to prove his case. And although, the party may take advantage of the lacuna in the case of the other side, he stands on the strength of his own case and not on the witness in the case of the other side. 6. Counsel for the parties, particularly opposite party, made submissions on merit of the case. However, in the present case the point for consideration is limited, namely, whether the court below committed error in deleting the impugned averments from the written statement. It may be stated here that the provisions of Rule 16 of Order 6 of the Code are, in a sense, opposite to the provisions of Order 6 Rule 17. While Rule 17 lays down that all amendments which are necessary for complete adjudication of the real question in controversy should be allowed to be incorporated in the pleading, Rule 16 provides for striking out of any part of the pleading which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the trial of the suit, or which is otherwise an abuse of the process of the Court. The choice of the pleading, rests with the party concerned. The choice of the pleading, rests with the party concerned. Resort to the provisions of Rule 16, which is in the nature of "forced" amendment, should be made only in exceptional cases. Thus the provisions of Order 6 Rule 16 should be given a strict interpretation and not a liberal one. 7. Adverting to the case in hand, if the law permits a party to plead an alternative case and the defendant thus may set up an alternative defence, it is not understandable as to how part of the pleading wherein the defendant has challenged the title of the plaintiff vendor can be said to be unnecessary. It may be pointed out that one of the issues framed in the suit is whether there is relationship of landlord and tenant between the parties. It would not be out of place to mention here that the said issue has been framed on the basis of the issues proposed by the plaintiffs themselves. From the order of the court below dated 24.7.98 it appears that despite several opportunities the defendant did not suggest any issue. Having, thus, themselves proposed such an issue, I am unable to appreciate as to how the plaintiffs could seek deletion of the relevant averments. There is no doubt that if those are deleted from the written statement it would not be possible for the defendant to cross-examine the pfaintiffs witnesses nor lead any evidence of his own on the point of landlord-tenant relationship. In this connection it may be mentioned that the application for deletion of the paragraphs was filed after the plaintiffs had examined nine witnesses and when in course of cross-examination of the tenth witness certain questions were put to the witness, which were objected to. In the circumstances, I am rather inclined to think that the application may not be said to be bonafide as contended on behalf of the petitioner. 8. I do not find any substance in the submission of the counsel for the opposite party that in a suit for eviction which is tried according to the procedure laid down in section 14 of the Act, the issue of landlord and tenant relationship cannot be raised. 8. I do not find any substance in the submission of the counsel for the opposite party that in a suit for eviction which is tried according to the procedure laid down in section 14 of the Act, the issue of landlord and tenant relationship cannot be raised. In my opinion, in a suit for eviction whether on the ground of personal necessity or default or on any other ground, the plaintiffs title is to be seen incidentally while considering the question of landlord and tenant relationship Only in Cases where the tenant claims title in himself and it appears to the court that complicated questions of title arise for decision, that plaintiffs title is required to be decided in a full-fledged manner on payment of court fee etc. However, such an eventuality arises when the defendant claims an independent title in himself. 9. As far as the decisions cited are concerned, in the decision reported in 1989 PLJR 587 this Court reiterated the welt known proposition that the tenant cannot question the title of the landlord. I have already made observations in this regard. I may only add that the decision was rendered in second appeal i.e. after the trial, on the basis of evidence on record and findings of the courts below. As regards the other decision reported in 1999(1) PLJR 379 that also was a post- trial case, under section 14(5) of the BBC Act i.e. after the suit had been decided on the basis of the evidence on record. The facts of the case are not very clear to me. From paragraph 8 of the judgment it appears that leave to contest was not granted to the defendant. From paragraph 9, however, it appears that the court permitted the parties to contest the suit as the court was of the opinion that the question of relationship of landlord and tenant between the parties and personal necessity could not be decided without such opportunity to the defendant. A point seems to have been argued before the learned Judge of this court that as permission had been granted under section 14(5) of the Act to the defendant-tenant to contest the suit, it was open to him to challenge the order of eviction on all grounds available in law including the title of the plaintiff. This contention was not accepted by the court. This contention was not accepted by the court. In paragraph 10 of the judgment the court rather proceeded on the Dremise that the court below while deciding the issue of relationship of landlord and tenant had gone into the question of title incidentally after considering the evidence and had come to a finding that the plaintiff is the owner of the suit premises and the defendant used to pay rent to him. As indicated above, the decision was rendered after the trial had concluded on the basis of the evidence on record. In the present case the evidence is yet to see light of the day. Therefore, I do not think the decision can be of any help to the plaintiffs-opposite party. 10. In the facts of the case and for the reasons stated above, I do not think the case comes within the purview of Order 6-Rule 16 of the Civil Procedure Code and the court below therefore was not right in deleting the aforementioned paragraphs of the written statement. 11. The impugned order dated 8.4.99 is accordingly set aside, this revision is allowed. 12. Before I part with this order, I must clarify that the observations made hereinabove have been made for the purpose of this civil revision and should not cause any prejudice to either party. 13. The suit being of the year 1997, and on the ground of personal necessity, the court below will try to dispose of the suit within a time-frame giving it due priority.