SHEOLAL Vs. ANANTDEO MISHRA

JUDGEMENT

(1.) The landlord appellant who has sought eviction of the defendant -respondent from a building let out to him on rent has appealed. Although at the hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure the only question of law framed was whether the court of appeal below has committed error of law in reversing the finding of the trial court on the question of arrears of rent and personal necessity in so far as the default and eviction of the respondent is concerned, when the defence stood struck out for non -compliance with the order of depositing arrears of rent Under Section 11 -A of the Bihar Building (lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act) and the learned Counsel for the appellant has confined the hearing of the appeal to the question of default only he has broaden the issue by adding certain ancillary and consequential contentions. He has, accordingly canvassed before me that (1) on the defence of the defendant tenant having been struck out any plea qua eviction on his behalf is not entertainable; the court of appeal below has committed error of law in holding that the order Under Section 1 -A of the Act was illegal and without jurisdiction and so the tenant cannot be denied his defence qua eviction for the reason that he defaulted in depositing rent as directed by the trial court (2) the orders striking out the defence having striken the tenant, he in no case could resist eviction even by suggesting that he was not in arrears of rent and the requirement of Section 11 (1)(d) of the Act are not complied with (3) the court of appeal below lias reversed the finding of the trial court on the question of default without either considering the materials and evidence which were led before the trial court or without meeting the reasonings adopted by the trial court to hold that the tenant had defaulted in paying rent to the landlord (4) the tenant having admittedly defaulted in depositing rent during the pendency of the trial and thereafter during the pendency of the appeal in the court below and appeal in this Court, has evidently incurred the disability and become liable for eviction. Although, as I have already noticed, the question framed at the time of hearing of the appeal under Order 41, Rule 11 of the Code of Civil Procedure is not that elastic to admit into it all that is sought to be canvassed by the learned Counsel appearing for the appellant since he has sought permission to raise these questions which were not considered at that stage and prayed to invoke the Court's jurisdiction preserved by the proviso to Section 100(5) of the Code of Civil Procedure, I have heard the parties on all these aspects.

(2.) In Zafar Alam v. Md. Nizam and Ors. 1986 P.L.J.R. 333. a Division Bench of this Court has expressed that the court hearing appeal has to confine itself to substantial question so formulated at the time of admission and only in rare cases where substantial question of law is so patent on the face of record and grave injustice is likely to follow that resort to the proviso to Section 100 (5) should be taken. The amendment which has given the present shape to Section 100 including the proviso to Sub -section 5 thereof has come as a result of various considerations and recommendations including the report of the Law Commission (54th report at page 17 -87. The Law Commission was of the view that there should be stricter and better scrutiny and instead of appeal as a right on any substantial question of law, should be subject to special leave. The legislature, however, thought it better to preserve the Court's descretion to hear the appeal, but placed injunction to keep the hearing confined to the question formulated by it at the hearing of the appeal under Order 41, Rule 11. The proviso to Section 100 of Sub -section 5, has, however, been kept as the repository of judicial discretion for reasons to be recorded; the power although not unbridled, yet enough to impress all such questions which deserve consideration to subserve the ends of justice. The caution that the Division Bench has administered, since I am in agreement that caution should be exercised, is nothing beyond reminding that a hearing to the appellant at the stage of Rule 11 of Order 41 for all purposes is enough except the question on which the Court desires to hear the respondent; but formulation of a question of law at that stage cannot be allowed to deny a hearing on questions other than one framed if the court is satisfied that such denial shall cause injustice. Ritualistic adherence to the formulation which may have the effect of shifting the course of justice can never be desirable. Having understood the scope of law and having heard the learned Counsel for the appellant and the learned Counsel for the respondents, I am of the view that the parties should be heard on all the four questions that have been formulated by the learned Counsel for the appellant, lest the appellant may not feel that he has been denied a hearing which could give him relief. Since I propose to go into these questions and I have heard the learned Counsel for the appellant and the learned Counsel for the respondent in some detail, I do not propose to embark any further into the reasons that I record for hearing the parties on questions other than one formulated at the hearing of the appeal under Order 41, Rule 11 as in my considered view they appear to be interlinked and overlapping each other.

(3.) Having thus entered into the questions, before I predicate, I pro -pos to state the relevant facts. The plaintiff -appellant's case is that he and his family consisting of himself and his sons is the owner of Holding No. 36, ward No. IV in Muhalla Makhlotganj within Gaya Municipality. The defendant -respondent took a portion of the said holding on rent at the rate of Rs. 40 per month on 15 -9 -i 967 initially for six months. After the expiry of the said period of six months, however, the defendant continued to occupy the said premises as monthly tenant at the same rate of rent. The defendant was, however, irregular in paying rent and paid rent at his convenience after committing default and violating the mandate Under Section 11 (1)(d) of the Act. Until 31 -1 -1974 a sum of Rs. 1,626.50 paise had fallen due to the plaintiff from the defendant, A sum of Rs. 5,66.50 paise was due prior to November, 1971 and from November, 1971 to January, 1974 he paid no rent inspite of repeated demands. The defendant, however, has said that the house which was taken on rent for a period of six months continued in his tenancy as the same was renewed after its expiry. According to him at the inspection of tenancy he paid a sum of Rs. 240 as advance towards rent to the plaintiff. In November, 1974 when accounting was done, it was found that there was an excess payment of Rs. 625 from the defendant to the plaintiff. The defendant never defaulted and paid rent each month and more so in advance to the plaintiff.