MANI LAL CHOUDHARY Vs. KHETRA KINKAR SAMANTA

JUDGEMENT

(1.) THE petitioner is the plaintiff in an eviction suit. He is aggrieved by the order of the trial Court rejecting his application under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. THE ground upon which this relief has been refused to the petitioner is that there is dispute between the parties with regard to the existence of relationship of landlord and tenant and that question will have to be decided in the suit itself. According to the learned Additional Subordinate Judge, the question of relationship of landlord and tenant should be left to be decided finally at the trial of the suit, otherwise it would amount to prejudicing the suit itself.

(2.) THE ground given by the learned Additional Subordinate Judge for declining to deal with the application under Section 11-A on merits is not well-founded at all. THEre are numerous decisions of this Court wherein it has been laid down that a decision on the question of the existence or otherwise of the relationship of landlord and tenant in a proceeding under Section 11-A is a tentative decision for the limited purpose of disposing of the application under Section 11-A. It is not a final decision in the suit itself, and that notwithstanding a tentative decision in a proceeding under Section 11-A, it is incumbent upon the trial Court to conic to a final decision on the same question in the suit itself. I may refer in this connection to the observations of Untwalia, J., in Civil Revn. No. 710 of 1961 (Pat), (Azizul Rah-man v. Abdul Aziz) given on the 28-11-1961, where his Lordship said that in a summary proceeding under Section 11-A, it is necessary to record a positive finding, although that finding may be a finding only for the purposes of Section 11-A, of the Act. I referred to this decision of Untwalia, J., in Parbati Kueri v. Sugan Chand Jain, (AIR 1967 Pat 415), where I took the view that for the purpose of passing an order under Section 11-A, it is incumbent upon the Court to make a summary investigation as to whether there is relationship of landlord and tenant between the parties or not. even though the same question arises for decision in the suit itself. THE view that I there expressed was approved by Tarkeshwar Nath, J., in Mahabir Ram v. Shiva Shankar Prasad, 1968 BUR 447 = (AIR 1968 Pat 415 (FB)), where speaking for the Full Bench his Lordship made the following observation:

(3.) SINCE the trial Court has not recorded any finding as to whether the relationship between the parties is one of landlord and tenant or of mortgagor and mort- gagee, it is not desirable that I should express any opinion on this question. I would, however, like the Court below to keep in view the observation which I made in Parbati Kueri's case, AIR 1967 Pat 415 with respect to the requisites of a mortgage by conditional sale as contained in the proviso to clause (c) of Section 58 of the Transfer of Property Act. To the same effect is the decision of their Lordships of the Supreme Court in Bapuswami v. N. Pattey Gounder, AIR 1966 SC 902. It is in the light of these decisions that the trial Court will have to decide the controversy with respect to the true relationship between the parties to this suit.