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2002 DIGILAW 1127 (PAT)

Md. Nooruddin v. Rabindra Kumar Sinha

2002-10-22

NAGENDRA RAI

body2002
Judgment 1. The defendant is the petitioner against the order dated 24.7.2002 passed by Subordinate Judge II, Kishanganj in Eviction Suit No. 8 of 1998 excluding the counter claim under Order 8 Rule 6C of the Code of Civil Procedure (herein after referred to as the Code) on the application filed by the plaintiff/ opposite party. 2. The plaintiff/ opposite party filed said suit for eviction on the ground of personal necessity against the defendant/petitioner before the court of Munsif 1st Kishanganj. 3. Under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act) the suit for eviction on the ground of personal necessity is tried by following a special procedure under section 14 of the Act. The defendant/petitioner appeared and sought leave to contest the matter under Section 14(4) of the Act. After the leave was granted, he filed a written statement challenging the ground of eviction. He also stated in the written statement that he had advanced Rs. 75,000/- for the purpose of repairing and renovation of the building and therefore the said amount either should be refunded to him or should be adjusted towards the future rent. The petitioner also filed counter claim under Order VIII Rule 6A of the Code for Rs. 75,000/- and paid court fees which was admitted and the plaintiff/ opposite party filed written statement to the defendant/petitioners counter claim. 4. Admittedly, the counter claim was beyond the pecuniary jurisdiction of the court which should not have been entertained in terms of proviso to sub rule 1 of Rule 6A of Order VIII of the Code. However, the District Judge on the prayer of the petitioner recalled the case from the file of Munsif 1st Court, Kishanganj and transferred it to the Subordinate Judge. The plaintiff/ opposite party thereafter filed a petition under Order Vlll Rule 6C of the Code for exclusion of the counter claim on the ground that the said claim cannot be adjudicated upon in a suit for eviction on the ground of personal necessity and the learned Subordinate Judge by the impugned order has allowed the exclusion of the counter claim. Hence the present revision application. 5. The learned counsel appearing for the defendant/ petitioner submitted that the Court below has committed jurisdictional error in excluding the counter claim. Hence the present revision application. 5. The learned counsel appearing for the defendant/ petitioner submitted that the Court below has committed jurisdictional error in excluding the counter claim. Rule 6A of Order Vlll has been introduced by the amendment Act of 1976 with the sole object to shorten the litigation and the defendant can file a counter claim even with regard to independent cause of action in respect of any claim which would be a subject matter of independent suit. In that view of the matter, counter claim for Rs. 75,000/- which was advanced to the plaintiff though is not a part of the cause of action of the suit but the counter claim is maintainable with regard to the said claim also and the Court below has thus wrongly allowed the exclusion of the counter claim. 6. Learned counsel appearing for the plaintiff/ opposite party on the other hand submitted that admittedly the claim made by the defendant/ petitioner in the shape of counter claim is beyond the pecuniary jurisdiction of the original court, i.e. Munsif 1st Court, and accordingly, he should not have entertained the counter claim. He further submitted that the suit has been filed on the ground of personal necessity which has to be tried by following a practice and procedure of court of small causes whereas the counter claim has to be disposed of by following a procedure under the Code and as such the counter claim cannot be adjudicated upon in a suit for eviction tried under Section 14 of the Act. 7. The point for consideration in this case is as to whether the counter claim filed by defendant/petitioner was maintainable or not. 8. Admitted fact is that the suit has been filed by the plaintiff/opposite party for eviction on the ground of personal necessity which is tried under Section 14 of the Act by following a special procedure. Sub-Section (7) of Section 14 of the Act provides that notwithstanding anything contained in the Code of Civil Procedure, or any other law, the suit under Section 14 of the Act shall be tried by following the practice and procedure of a Court of Small Causes including the recording of evidence. Sub-Section (7) of Section 14 of the Act provides that notwithstanding anything contained in the Code of Civil Procedure, or any other law, the suit under Section 14 of the Act shall be tried by following the practice and procedure of a Court of Small Causes including the recording of evidence. Sub-section (8) of Section 14 of the Act bars first appeal and second appeal against the order passed under Section 14 and the revision is limited to the question of law according to proviso to Sub-Section (8) of Section (14) of the Act. 9. Thus, the procedure which is ordinarily applied for disposal of the money suit or the suit of other nature is not applicable in case of disposal of the suit covered under Section 14 of the Act. 10. It is well settled that after the amendment of the Code of Civil Procedure by amendment Act, 1976, under Order Vlll Rule 6A, the defendant can raise a counter claim with regard to independent cause of action and it is not necessary that the claim should be related to the cause of action on the basis of which the suit has been filed by the plaintiff. This provision has been added with the sole object to shorten the litigation and the defendant, though he may have different cause of action against the plaintiff, may agitate the matter in the suit itself without filing a separate suit. The counter claim is not confined only to the money suit as that was the provision prior to amendment. In this connection reference may be made to the judgment of the Apex Court in the cases of Gurbachan Singh V/s. Bhag Singh and others, reported in AIR 1996 Supreme Court 1087 and Jag Mohan Chawla & another V/s. Dera Radha Swami Satsang & Ors. reported in AIR 1996 Supreme Court 2222. 11. However, the question for consideration in this case is as to whether in a suit tried by following a special procedure under Section 14 of the Act, the counter claim which is to be tried by ordinary civil court is maintainable or not. 12. The provision as stated above clearly shows that special procedure has to be followed particularly in a suit on the ground of personal necessity as provided under Section 11(1)(c) and on expiry of the lease as provided under Section 11(1)(e) of the Act. 12. The provision as stated above clearly shows that special procedure has to be followed particularly in a suit on the ground of personal necessity as provided under Section 11(1)(c) and on expiry of the lease as provided under Section 11(1)(e) of the Act. The practice and procedure of a Court of Small Causes are to be followed in disposing of the suit which is different from the ordinary procedure applicable in the case of disposal of a suit under the provisions of the Code. The counter claim which has to be tried by the Civil Court cannot be tried by the Court while dealing with the suit for eviction on the aforesaid two grounds. In that view of the matter the defendant cannot file a suit with regard to matter covered by counter claim in the court exercising the power under Section 14 of the Act. Accordingly, the counter claim made by him cannot be entertained by a court dealing with a suit for eviction covered under section 14 of the Act. 13. The two iearned Single Judges of this Court in the case of Nirmal Prasad Yadav and Ors. V/s. Kapildeo Prasad, reported in 1999 (2) PLJR 712 and in the case of Md. Idris V/s. Om Prakash Fitkaribal & anr. reported in 2000 (1) PLJR 280 have held that in a suit for eviction on the ground of personal necessity, the counter claim cannot be entertained as that would change the nature of the suit and result in mis-rejoinder under the provisions of the Code. I am in full agreement with the view taken by the learned Single Judges. 14. The learned counsel appearing for the petitioner has relied upon a judgment of the learned Single Judge of this Court in the case of Gaya Prasad V/s. Smt. Jamwanti Devi, reported in AIR 1998 Patna 53 wherein dissentiant view has been taken and it has been held that in a suit for eviction, the counter claim of title is maintainable. From perusal of the judgment it is clear that the suit was filed for eviction but the grounds on which the eviction was sought for have not been stated anywhere in the judgment. From perusal of the judgment it is clear that the suit was filed for eviction but the grounds on which the eviction was sought for have not been stated anywhere in the judgment. That was not a case where the eviction was tried by following a special procedure, on the other hand, it appears to have been filed in the civil court for eviction on other grounds mentioned under Section 11 of the Act. Thus the said case has no application in the present case. 15. Thus, the counter claim of Rs. 75,000/- in a suit for eviction which is tried by following a special procedure of the Small Causes Court is not maintainable. This apart, the counter claim itself was beyond the pecuniary jurisdiction of the Court where the suit was filed for eviction by the plaintiff/ opposite party. In other words, the Court below has committed jurisdictional error in allowing the counter claim which is in breach of the provisio to sub-rule (1) of Rule 6A of Order VIII of the Code.