Sardar Gurmukh Singh and anr Vs Sumer Chand Jain and anr - Citation 521704 - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 1. whether the learned courts below have acted against the law in not allowing the appellants to engage a lawyer to argue the appeal since the previous conducting lawyer who had accepted the fees from the appellants, failed to argue the appeal and, whether, without notice to the appellants, the lower appellate court had acted against the law in deciding the appeal of the appellants under order xvii rule 13 of the code of civil procedure instead of dismissing the same for default under order xvii rule 13 of the code of civil procedure? 23/83 which was dismissed for default since the plaintiff/appellant had failed to deposit the requisite court-fee. the lower appellate court was thus persuaded to opine that the appeals can be disposed of on merits even if the appellants failed to appear on the date of hearing. 2. procedure if parties fail to appear on day fixed. -where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by order ix or make such other order as it thinks fit. (ii) the parties or anyone of them fail to appear on the date so fixed; (iv) a party which is present and does not do anything else, will be treated as not having failed to appear; and (v) a party represented in court by an agent or pleader, though engaged only for the purpose of making an application, will also be deemed not to have failed to appear. khalsa's case [supra] though, the label and description given by the lower appellate court to its action is not decisive, the order as a whole should be construed to find out if the court acted on the view whether right or wrong, that one party appeared, but the other party failed to appear. in the light of the above discussion, i do not find any illegality in the exercise of powers by the lower appellate court in deciding the appeals on merits even though, the appellants in four out of five appeals failed to argue their respective cases before the court. 33. on the last surviving issue as to whether the tenants/defendants in the individual eviction suits had defaulted in payment of rents, and therefore, were liable for eviction from the suit premises under their respective occupation, the trial court as well as the lower appellate court have decided this issue on the basis of the evidence relating to the facts involved in each of the cases.d.r.r. patnaik, j.1. the present appeal are directed against the common judgment dated 11.1.2005 passed by the 1st additional district judge, hazaribagh, dismissing five title appeals filed against the judgment dated 31.3.1989 and its corresponding decree dated 10.4.1989 passed by the sub-ordinate judge, hazaribagh commonly in five separate eviction suits which were tried analogously along with one inter-pleader suit.since questions of law involved in all these appeals are common, they are disposed of by this common judgment.2. litigation in these appeals has a chequered history. the respondents rupchand jain, sumerchand jain and dhirendra kumar jain filed individual eviction suits under the rent control act praying for eviction of their respective tenants from the suit premises, on the ground of default in payment of monthly rents. their claim was that the property constituting the suit premises in each suit was purchased by them by virtue of six separate registered sale deeds dated 28.5.1979 from the previous owners. defendants in each of the eviction suits were the original tenants under the erstwhile owners and used to pay rent to them. after purchase of the properties, the plaintiffs as also the vendors had informed the tenants about the transfer of the suit properties in favour of the plaintiffs. on such information, defendants/tenants, except the tenant sardar singh (defendant in title suit no 14 of 1996), began paying rents to the plaintiffs. however, later, they stopped paying rents to the plaintiffs who therefore claimed default as cause of action for filing the suits for eviction.3. defendants in each of these eviction suits denied relationship of landlord and tenants between them and the plaintiffs and made counter claim that the suit properties were khas mahal property and not the properties of the plaintiffs. raising such controversy, the defendants applied before the sub divisional officer-cum-house rent controller under section 19(2) of the bihar building (lease, rent and eviction) control act, 1982 on 30.6.1979 seeking an order to deposit the monthly rents in the government treasury. the sub-divisional officer vide his order dated 20.8.1979 directed the defendants/tenants to deposit their respective monthly rents in the treasury and in pursuance thereof, the defendants deposited the monthly rents in the treasury. the defendants contended that in such view of the matter, they cannot be said to have defaulted in payment of rents.equipped with the order of the sub-divisional officer, the defendants/tenants joined together and filed an inter-pleader suit bearing title suit no. 52 of 1983 impleading the state of bihar and the khas mahal authorities as defendants no. 1 to 3 as one set and the three plaintiffs/purchasers of the suit property, as defendants no. 4 to 6 second set. the plea taken by the plaintiff in the inter-pleader suit was that they being the tenants in respect of the suit premises pertaining to the individual eviction suits, seek declaration from the court as to which of the two sets of the defendants are the owners/landlord of the suit premises, entitled to receive rents from them.in the inter-pleader suit, one of the plaintiffs/tenants peer mohammad preferred a prayer for injunction to restrain the plaintiffs of title (eviction) suit no. 1 of 1983 from proceeding with the eviction suit filed against him. learned munsif, hazaribagh rejected the prayer for injunction by order dated 21.12.1983. against this order, the tenant peer mohammad preferred misc. appeal no. 6 of 1984 (r) before the patna high court, ranchi bench. the misc. appeal was dismissed in terms of the order dated 16.11.1984 but with a direction that the title suit no. 1 of 1983, which was originally filed in the court of munsif, be transferred to the court of sub-ordinate judge, hazaribagh and both the suits namely title (eviction) suit no. 1 of 1983 and inter-pleader suit being title suit no. 52 of 1983, be heard analogous. pursuant to the transfer of title (eviction) suit no. 1 of 1983 to the court of sub-ordinate judge, hazarbagh, it was registered and renumbered as title (eviction) suit no. 4 of 1988.taking a clue from the above transfer, the defendants/tenants in the other eviction suits preferred transfer petition before the district judge, hazaribagh for transfer of their respective eviction suits from the court of munsif to the court of sub-ordinate judge, hazaribagh for analogous trial of their suits along with the inter-pleader title suit no. 52 of 1983. pursuant to the order dated 4.9.1986 passed by the learned district judge, hazaribagh allowing the prayer for transfer, all the remaining title (eviction) suits were transferred to the court of sub-ordinate judge, hazaribagh for analogous trial with the inter-pleader suit being title suit no. 52 of 1983.4. thus, on being directed by the order of the district judge for analogous trial of all the suits, the learned sub-ordinate judge conducted joint trial of all the eviction suits along with the inter-pleader suit, by allowing the examination of the witnesses adduced by the plaintiffs and the defendants of each of the eviction suits in respect of their respective pleadings, both in the inter-pleader suit and in their eviction suits.5. before proceeding further, it would be relevant to record concisely a chart indicating the names of the parties, the suit premises, description of the eviction (title appeals) and of the present second appeals:________________________________________________________________________eviction suit no. suit period eviction secondand name of premises of (title) appealparties default appeal no. nos. andclaim and name name ofof parties parties________________________________________________________________________14/1986 shop no. from 8/1989 89/2005sumerchand 10 situate march sardar sardarjain v. sardar on portion 1983 gurmukh gurmukhsingh of plot no. singh singh v.n.b. previously 105 of (legal heir sumercheviction suit no. khata no. of late and jain11/85 was filed 124, sardarbefore id. munsif holding singh) v.on 9.8.1985. on no. 160, sumerchtransfer to the ward no. and jaincourt of xv of n.b. thissubordinate hazariba appeal wasjudge, the same gh argued bywas numbered municipal appellant'sas eviction suit ty. counselno. 14 of 1986. beforeappellatecourt.________________________________________________________________________3/1988 shop no. 8 from 1/1989 145/2005sumerchand situate on may munshi munshijain v. munshi portion of 1983 thakur v. thakur v.thakur plot no. 105 sumerch sumerchn.b. previously of khata and jain and jaineviction suit no. no. 124,12/87 was filed holding no.before id. munif 160, wardon 11.5.1987. on no. xv oftransfer to the hazaribaghcourt of subor- municipality,dinate judge, the same was numb-ered as evictionsuit no. 3/88.________________________________________________________________________2/1988 shop no. 4 from 6/1989 144/2005rupchand jain situates on janua ashok ashokv. kalyan dutt a portion of ry kumar kumaragrawal plot no. 105 1981 agrawal agrawaleviction suit no. of khata and others and others25/86 was filed no. 124, (legal v.before the ld. holding no. heirs of rupchandmunsif on 160, ward kalyan jain30.9.1986 on no. xv of dutttransfer to the hazaribagh agrawal)court of ld. sub- municipality. v.judge. the same rupchandwas numbered jainas eviction suitno. 2/88.________________________________________________________________________4/1988 shop no. from 5/1989rupchand jain 20 situate july peerv. peer on portion 1979 mohammmohammad of plot no. ad v.n.b. previously 105 of rupchandeviction suit no. khata no. jain,1/83 was filed 124, 140/2005before ld. munsif holding peeron 3.1.1983. on no. 160, mohammtransfer to the ward no. ad v. roopcourt of subor- xv of chanddinate judge the hazaribagh jainsame was num- municipality.bered as evictionsuit no. 4/88________________________________________________________________________5/1988 shop no. from- 4/1989 149/2005rupchand jain 19 situate janua sardar sardarv. sardar on portion ry surendra surendrasurendra singh of plot no. 1981 singh v. singh v.n.b. previously 105 of rupchand rupchandeviction suit no. khata no. jain jain67/83 was filed 124,before ld. munsif holdingon 5.7.1983. on no. 160,transfer to the ward no. court of subor- xv ofdinate judge, the hazaribasame was num- phbered as eviction municipalisuit no. 30/85 ty.and thereaftereviction suit no. 5/88.________________________________________________________________________6. at the trial, in all the eviction suits, the plaintiffs sumerchand jain and rupchand jain, who were defendants second set in the inter-pleader suit, were examined as dw 11 and dw 12 respectively and had deposed in support of their respective cases claiming that they were the landlords of the suit premises since after the date of purchase of the property and that the defendants/tenants had paid rents to them against which plaintiffs had issued rent receipts and that, subsequently the tenants had stopped payment of rents and thereby became defaulters for different specific periods, in respect of the suit premises in the different suits.the defendants/tenants who were plaintiffs in the inter-pleader suit, were examined as pws 12, 18, 19, 20 and 28 respectively. except the tenant sardar singh (pw 20). the remaining tenants had admitted in their respective depositions that they had paid the monthly rents to the plaintiffs and that, earlier they used to pay the rents to the vendor of the plaintiffs.they however qualified their statements that rent paid by them to the plaintiffs was by mistake and that, they had preferred an application before the rent controller and as per the order of the rent controller dated 20.8.1979, they were depositing their rent in the treasury. they had also claimed that they had applied before the khas mahal authorities for settlement of the suit property in their favour treating the same as a khas mahal lease hold land, but their application was rejected.7. on the basis of the rival pleadings the trial court framed the following issues.(i) are the title suit no. 52/83, eviction suit no. 2/85 (now numbered as eviction suit no. 4/88), 30/85 (now numbered as eviction suit no. 5/88), 14/86, 1/88, 2/88 and 3/88 maintainable in the present form?(ii) have the plaintiffs of t.s. 52/83, eviction suit nos. 2/85 (now numbered as eviction suit no. 4/88), 30/85 (now numbered as eviction suit no. 5/88), 14/86, 1/88 and 3/88 got valid cause of action to bring their respective suits?(iii) are the suits being t.s. 52/83, eviction suit 2/85 (now numbered as 4/88), 3/88 (now numbered as 5/88), 14/86, 1/88, 2/88 and 3/88 barred by law of limitation?(iv) is t.s. 52/83 hit under the provisions of specific relief act?(v) are the plaintiffs of t.s 52/83 entitled to the reliefs as claimed in the suit?(vi) has the suit property vested in the state (khas mahal) and is it (state khas mahal) owner thereof?(vii) are the defendant nos. 4 to 6 or defendant nos. 1 to 3 of t.s. no. 52/83 owner lands of the suit premises? and whether they are entitled to get rents-defendant nos. 1 to 3 or defendant nos. 4 to 6 from the plaintiffs of the t.s. no. 52/83?(viii) are the plaintiff nos. 1, 3, 11, 17 (correct no. 18), (correct no. 16) and 12 (correct no. 13) of t.s. no. 52/83 are respectively the defendants of eviction suit nos. 2/83 (now numbered as eviction suit no. 4/88), 30/85 (now numbered as eviction suit nos. 5/88, 14/ 86, 1/88 and 3/88 defaulter in payment of monthly rent?(ix) are the defendant nos. 4 to 6 of t.s. 52/83 who are plaintiffs of eviction suit nos. 2/85 (now numbered as 4/88) 30/85 (now numbered as 5/88) 14/86, 1/88, 2/88 and 3/88 entitled to decree for eviction of the defendants of the said six eviction suits?(x) are the eviction suits nos. 2/85 (now numbered as eviction suit no. 4/88), 30/85 (now numbered as eviction suit no. 5/88), 14/86. 1/88, 2/88 and 3/88 maintainable under the provisions of bihar building (l.r.e) control act?(xi) is the eviction suit no. 14/86 barred by law of estoppel and res judicata?(xii) to what other relief or reliefs, if any, the plaintiffs of t.s 52/83 and eviction suit nos. 2/85 (now numbered as eviction suit 4/88), 30/85 (now numbered as eviction suit no. 5/88, 14/86, 1/88, 2/88 and 3/88 are entitled to?8. while answering the issue no. 7 in favour of the defendant second set (plaintiffs of the eviction suits), the trial court observed that admittedly, all the tenants used to pay rents to the vendor of the plaintiffs and since after the purchase of the suit properties, plaintiffs stepped into the shoes of the vendor and became the owners of the suit properties and subsequent to the purchase, after properties were mutated in the revenue records in the names of the purchasers after rejection of the objections raised by the tenants. the application of the tenants to the khas mahal authorities for grant of lease of the property in their favour, was rejected. furthermore, there was no evidence whatsoever to show that khas mahal authorities had ever claimed the suit properties or had ever demanded rent from the tenants who were in occupation of the same. the trial court had also answered the question pertaining to issue no. 8 as to whether the plaintiffs of the inter-pleader suit who are defendants in the respective eviction suits, had defaulted in the payment of monthly rents, by holding that the tenants of the eviction suits were defaulters in payment of the rents and had observed that the application filed by the tenants before the house rent controller was malajide and that the plaintiffs/purchasers were never made parties in the proceeding before the house rent controller and that the order of deposit of the rent as passed by the house rent controller, was obtained behind the back of the plaintiffs/purchasers. the trial court had also observed that no evidence was adduced by the tenants to show that the khas mahal authorities had ever demanded rent from any of the tenants and on the other hand, the tenants had admittedly paid rents to the vendor of the plaintiffs/purchasers and as such, deposit of the rent made by the tenants in the treasury was not bona fide and such deposits does not save the tenants from their liability of being defaulters.9. against the common judgment and decree passed by the subordinate judge, the tenants/defendants in the title eviction suits preferred five separate eviction (title) appeals vide title (eviction) appeals no. 4/83, 5/89, 6/89, 7/89. 8/89 in the court of district judge, hazaribagh. subsequently, all the eviction (title) appeals were transferred to the court of 9th additional sessions judge, hazaribagh and later, the title appeals were transferred to the 1st additional sessions judge, hazaribagh.10. it would be worth relevance to note that after the appeals were initially filed in the court of district judge, hazaribagh and were heard on 5/6 dates, tenants/appellants made a prayer for stay of further proceedings in the appeals, stating that they would obtain order from the high court. on transfer of the appeals to the court of 9th additional sessions judge, the appellants/tenants did not prefer to argue the appeals, though appeals were fixed for hearing on 21.6.2004. when the appeals were transferred to the court of 1st additional sessions judge, the appellants/tenants, instead of submitting their arguments, filed a transfer petition demanding transfer of the appeals from the court of 1st additional sessions judge to any other court. the transfer petition was however dismissed by the district judge by order dated 22.12.2004. after rejection of the transfer petition, the first appellate court fixed all the five appeal for hearing. however, except the counsel for the appellant in eviction (title) appeal no. 8 of 1989, counsel for the appellants in the remaining four appeals did not appear to argue the appeals. the lower appellate court under such circumstances proceeded to hear and decide all the appeals on merits on the ground that identical questions were involved in all the appeals and the issues to be decided in the contested eviction (title) appeal no. 8/89 covers all the issues which arise for decision in the other four eviction (title) appeals.11. while proceeding to dispose of the appeals on merits, the lower appellate court made a record of the pleadings of the parties in each of the eviction suits and in the inter-pleader suit. it also considered and recorded the issues framed by the trial court involving pleadings of the parties not only in the inter-pleader suit, but also in each of the eviction suits. it also meticulously scrutinized the evidences adduced by the plaintiffs/landlords and that of the defendants/tenants in respect of the pleadings of the parties in each of the eviction suits and in the inter-pleader suit. the lower appellate court thereafter proceeded to examine the findings of the trial court on the relevant issues namely:1. whether the trial court had framed issues regarding the relationship of landlord and tenant between the parties in respect of each of the eviction suits?2. whether the plaintiffs in the eviction suits were the owners of the suit premises in each of the suits and were entitled to realize rent from the defendants/tenants and, whether the tenants were liable to pay rents to the plaintiffs?3. whether dismissal of the title (eviction) suit no. 84 of 1980 filed by the plaintiff sumerchand jain against the defendant sardar singh, operated as res judicata debarring the same plaintiff from filing a fresh title eviction suit against the same defendant?4. whether the pendency of the letters patent appeal no. 508 of 2004 filed by the state of bihar against the plaintiffs and the defendants of the eviction suits would operate as a restraint on the trial court as also on the lower appellate court from deciding the suits and the corresponding appeals?5. whether the findings of the trial court on each of the issues suffer from any illegality or infirmity?12. on the issue as to whether the trial court had framed issue regarding relationship of landlord and tenant between the parties in each of the eviction suits and whether, if so, the finding of the trial court in favour of the plaintiffs/landlords and against the defendants/tenants was correct, the lower appellate court on going through the impugned judgment of the trial court has held that the issue nos. 7 and 8, as framed by the trial court, were adequately framed in order to cover the issue of relationship of landlord and tenant between the parties and that, since the finding on the issue as to whether the plaintiffs or the state of bihar was the owner of the suit properties, was decided and upheld even by a division bench of this court by holding that the plaintiff were the owners of the suit properties and they were entitled to claim and receive rents from the tenants and therefore, the finding of the trial court on the above issues was correct and conclusive.it was also observed by the lower appellate court that title (eviction) suit no. 84 of 1980 earlier filed by the plaintiff sumerchand jain against the defendant sardar singh was dismissed since the ground of default in payment of rent for the periods stated therein could not be proved, but the finding of the trial court in the said suit that the relationship of landlord and tenant between the plaintiffs and the tenants in respect of the suit premises were established and proved, remained conclusive and even though the plaintiffs after filing title appeal against the judgment and decree in the said suit, withdraw the same, finding of existence of relationship of landlord and tenant between the parties became final and conclusive in absence of any cross appeal preferred by the defendant against the trial court's finding.as regards the issue relating to default in payment of rent, the lower appellate court took note of the admission made by the defendants in the eviction suits that they did accept the plaintiffs as their landlords since after the date of purchase of the suit properties and the defendants, for some months, paid rent to the plaintiffs and, thereafter, abstained from making payments. the lower appellate court had also taken note of the fact that the plea of the defendants in the eviction suits that they have deposited rent in the treasury pursuant to an order of the sub-divisional officer and, therefore, they cannot be treated as defaulter, was rejected by the trial court. the lower appellate court upheld the finding of the trial court that deposit of rent by the tenants in the treasury could not protect them from being defaulters in payment of rent, as has been upheld by the high court in the first appeal preferred by the defendants and in absence of any order of any superior appellate authority, the finding of the high court remained conclusive and binding.13. thus, by the impugned common judgment, the lower appellate court dismissed all the appeals and confirmed the findings recorded by the trial court in respect of each of the issues framed.14. the appellants in all second appeals have assailed the impugned judgment of the lower appellate court and that of the trial court raising the following questions of law.1. whether the learned courts below have acted against the law in not allowing the appellants to engage a lawyer to argue the appeal since the previous conducting lawyer who had accepted the fees from the appellants, failed to argue the appeal and, whether, without notice to the appellants, the lower appellate court had acted against the law in deciding the appeal of the appellants under order xvii rule 13 of the code of civil procedure instead of dismissing the same for default under order xvii rule 13 of the code of civil procedure?2. whether the learned court below had illegally discarded the pleading and evidences - oral and documentary - particularly of pw 28 in title inter pleader suit no. 52/83 and, whether the principle of res judicata should have been applied on the question of payment of rent/default when pursuant to the order of the house rent controller in the rent control case no. 18/79, appellants had been depositing the monthly rents?3. whether the lower appellate court had committed gross illegality in not considering the pendency of l.p.a. no. 508/2004 and decided that the suit properties were not khas mahal properties, even without impleading the state as a necessary party?4. whether the doctrine of estoppel applies in the case when there is dispute concerning relationship of the parties?5. whether the learned courts below had erred in decreeing the suit under the provisions of bihar building (lease, rent and eviction) control act without framing and issue on relationship landlord and tenant between the parties.6. whether the findings of the courts below holding the appellants/tenants as defaulter can be sustained in law in absence of any finding on the issue as to whether there existed any bona fide dispute regarding the plaintiffs claim of ownership and his right to receive rent?7. whether the bona fide dispute regarding the plaintiffs right to receive rent came to an end only after adjudication on the issue in inter-pleader suit being title suit no. 52/83 and prior to such decision, deposit of rent in the government treasury by the defendants/tenants under the order of the house rent controller was valid?8. whether the courts below had erred in failing to apply the provisions of sections 19 and 31 of the bihar building (lease, rent and eviction) control act in proper perspective?15. shri v. shivnath, learned counsel for the appellants, opens his argument by raising the preliminary question of law as to whether the leaned trial court has not committed error by conducting joint trial of the eviction suits together with the inter-pleader suit by wrongly interpreting the term 'analogous trial', despite the fact that, cause of action and the evidences in the individual evictions suits were different? learned counsel argues that even though, there was an order passed in the misc. appeal no. 6 of 1984 (r) by the patna high court, ranchi bench for analogous trial of the eviction suit no. 1 of 1983 with the inter-pleader suit, but such order was confined only to the particular eviction suit namely title (eviction) suit no. 1 of 1983 filed by the defendant/appellant peer mohammad and not to the other eviction suits. according to the learned counsel, learned court below has erred therefore in conducting joint trial not only of title (eviction) suit no. 1 of 1983, but other title eviction suits also with title (inter-pleader) suit no. 52 of 1983, ignoring the fact that the valuation of title (inter pleader) suit no. 52 of 1983 was more than rs. 60,000/-.learned counsel for the respondents counters this argument by clarifying that the order of analogous trial of the remaining eviction suits along with the same inter-pleader suit was passed by the district judge and that too on the prayer of the individual defendants/tenants and therefore, there was no illegality committed by the trial court in conducting joint trial of the eviction suits with the inter-pleader suit.16. it is observed that after title (eviction) suit no. 1/83 was transferred to the court of subordinate judge for analogous trial with the inter-pleader being title suit no. 52/83, the defendants/tenants of the other eviction suits had voluntarily prayed before the district judge for transfer of their respective eviction suits also to the same court so that they may be tried analogously with the inter-pleader suit and on their prayer being allowed, eviction suits were accordingly transferred to the same court of the subordinate judge.it is also observed that the learned trial court had considered the fact that all the tenants had jointly arrayed themselves as plaintiffs in the inter-pleader suit and made the plaintiffs in the eviction suits jointly as defendants second set. the main issue in the eviction suits as also in the inter-pleader suit was, whether defendants/tenants in the eviction suits were liable to payment to the plaintiffs/landlords (second set of defendants in the inter-pleader suit). another ground taken in the eviction suits by the plaintiffs therein for the relief claimed, was the ground of default in payment of monthly rent, though the periods of default varied in each of the cases. the suit premises described in the individual eviction suits together, comprised the total area of land within plot no. 105 khata no. 124 holding no. 160 purchased by the plaintiffs/landlords from the previous owners. these issues which arose for consideration in title (eviction) suit no. 1/83 were common in all the remaining title (eviction) suits. under such circumstances, trial of all the eviction suits alongwith the title inter-pleader suit conducted jointly by the trial court, in the light of the orders of the high court and, the orders of the district judge, cannot be considered as improper. furthermore, none of the defendants/tenants in the title (eviction) suits had raised any objection before the trial court against the joint trial of all the cases. it is also observed that at the time of embarking upon conducting joint trial of the eviction suits analogously with the inter-pleader suit, the trial court had taken care to frame all the relevant issues which were raised by the defendants in the individual eviction suits and also the issues raised in the inter-pleader suit. the trial court had allowed the plaintiffs and the defendants of each of the eviction suits to adduce their respective evidences at the trial and plaintiffs and the defendants of each of the eviction suits had availed the opportunity by adducing their respective evidences. apparently, no prejudice has been caused to the present appellants/ defendants of the eviction suits. therefore, considering all the facts, i do not find any error or illegality committed by the trial court in conducting joint trial of all the eviction suits together with the inter-pleader suit and in passing a common judgment for all the suits.17. the next contention of the learned counsel for the appellants is that the trial court has committed serious error in failing to appreciate the fact that the eviction suit filed by the plaintiff sumer-chand jain against the defendant sardar gurmukh singh vide eviction suit no. 14/86, was barred by the principle of res judicata in as much as. earlier, the same plaintiff had filed a title (eviction) suit no. 84 of 1980 against the same defendant seeking his eviction on the ground of default. the suit was dismissed by the court of munsif on the basis of finding that the ground of default was not proved, although the relationship of landlord and the tenant was established. against the judgment of the munsif, the plaintiff filed a title appeal registered as title appeal no. 23/83 which was dismissed for default since the plaintiff/appellant had failed to deposit the requisite court-fee. the dismissal of the appeal resulted in the finality of the judgment/decree passed by the munsif and therefore, the same plaintiff could not have filed the second title (eviction) suit against the same defendant all over again on the ground of default.18. this agreement of the learned counsel for the appellants appears to be misconceived. the previous title (eviction) suit no. 84 of 1980 filed by the plaintiff/landlord sumerchand jain against the said defendant/tenant sardar gurmukh singh for eviction was on the ground of default in payment of rent for a particular period stated in the suit and due to lack of sufficient evidence in respect of ground of default for the period mentioned in the suit, the suit was dismissed. it is however significant to note that even though, the suit was dismissed, but with a finding that there exists relationship of landlord and tenant between the plaintiff and the defendant. the tenant sardar gurmukh singh (appellant in second appeal no. 89 of 2005) did not prefer any appeal against the finding recorded in the said suit regarding existence of relationship of landlord and tenant between him and the plaintiff of the suit. the second suit which eventually came to be disposed of by the impugned judgment of the learned subordinate judge, though filed for eviction of the tenant on the ground of default, but the period of default as claimed, was different. each months default would constitute a fresh cause of action for the plaintiff. therefore, even if the earlier title (eviction) suit filed by the same landlord against the same defendant was dismissed, the second eviction suit by the same landlord on the ground of default in respect of a different period, cannot be said to be barred by res judicata.19. the next question raised commonly by the appellants in all the instant appeals except title appeal no. 8 of 1989. is whether the case being of non-appearance of the appellants, the learned lower appellate court could have legally decided the appeals on merits?20. as noted above, altogether five separate eviction (title) appeals were filed by each of the defendants/tenants in the eviction suits. after filing the appeals, dates were fixed for hearing in the court of district judge where the appeals were initially filed and after 5/6 dates of hearing, appellants in each of these appeals wanted stay of the proceedings in the appeals declaring that they intended to obtain an order from the high court for transfer of the appeals to another court. though, no such order was obtained from the high court, but perhaps considering the vexatious attitude of the appellants, the district judge transferred the appeals to another court. in the transferee court also, as it appears, the appellants did not show any promptness or eagerness to pursue with the appeals. the appeals were transferred yet again to another court where dates were fixed for hearing. here again, appellants choose not to cooperate with the court. except the appellant's counsel in eviction (title) appeal no. 8/89 (corresponding to second appeal no. 149/05) the counsel for the appellants in the other four appeals abstained from arguing the appeals before the court. was it with intention to render the court helpless? could the lower appellate court not acted upon disposing of the appeals on merits with the co- operation of the counsel appearing for the appellants in one of the eviction (title) appeals namely, eviction (title) appeal no. 8/89?mr. shivnath, learned counsel for the appellants, would argue that before proceeding to decide the appeal on merits, it was incumbent upon the lower appellate court to frame issues to be determined in the individual appeals, but this was not done by the lower appellate court.learned counsel argues further that the lower appellate court could not have dismissed the appeals [other than the title (eviction) appeal no. 8/89], without hearing the appellants and the judgment delivered by the lower appellate court under order xvii rule 3 of the code of civil procedure, is beyond its jurisdiction and barred by law. learned counsel would explain that even if the provisions of order xvii rule 3 of the code of civil procedure is applied, it could be applied only in terms of order ix. rule 8 of the code of civil procedure and the appeal could not be dismissed on merits in absence of the appellants.21. refuting the arguments, counsel for the respondents would argue that under section 107 of the code of civil procedure, the lower appellate court had the right to determine the appeal on finality on merits. such power can be exercised even if the appellant is not present to argue the appeal. learned counsel refers in this context to the judgment of patna high court reported in 1991 bbcj 123.referring to yet another decision of the full bench of the allahabad high court reported in air 1976 all 290. learned counsel argues that the judgment passed by the lower appellate court has to be treated as judgment passed under order xli rule 17 of the code of civil procedure, under which the appellate court may either dismiss the appeal, or may decide the appeal on merits.22. before proceeding to resolve this controversy, it would be relevant to take note of the reasons expressed by the lower appellate court for proceeding to decide the appeals on merits even though, the counsel for the appellants did not appear for pressing arguments.the lower appellate had considered that the essential issues involved in all the eviction title appeals were mainly the same namely, whether the defendants/tenants in each of the eviction suits were liable to pay rent to the plaintiffs/landlords, and whether the defendants had defaulted in payment of rent? the lower appellate court observed that the case of the appellants in all the appeals on the issue of default in terms of their common defence, is squarely covered by the issue of default raised in eviction (title) appeal no. 8/89, in which counsel for the appellant did appear and pressed arguments and the materials available pn record in all the appeals were sufficient to dispose of the appeals on merits.the lower appellate court has also considered from the records that ever since after filing the appeals, dates for hearing used to be fixed, but the appellants were evasive and the hearing of the appeals were adjourned from time to time. the lower appellate court was thus persuaded to opine that the appeals can be disposed of on merits even if the appellants failed to appear on the date of hearing.was the approach of the lower appellate court faulty?23. the facts in the instant case are peculiar. as observed from the history of the case, the plaintiffs in the individual eviction suits are admittedly the purchasers of the suit properties. the suit premises in each of the eviction suits together comprise the total area of land purchased by the plaintiffs from the previous owner. in the written statement filed by the defendants/tenants in each of the eviction suits, it has been admitted by them that they used to pay the monthly rents to the vendor of the plaintiffs. it is also admitted by them (except the tenant/defendant namely sardar gurmukh singh) that after the suit premises were purchased by the plaintiffs, the tenants continued to pay the monthly rents for some months to the plaintiffs, though later, they had stopped making payment. defendants/tenants raised a counter plea that there was a bona fide dispute as to whether the plaintiffs had valid title to the suit properties or whether, the state of bihar was the owner of the properties as being khas mahal land. this dispute was raised by all the tenants commonly in the inter-pleader suit. they however contested the plaintiffs' ground of default in payment of rent on the ground that pursuant to an order of the rent controller, they used to deposit their monthly rents in the treasury till the final decision on the issue as to whom, whether the plaintiffs or the state of bihar, should they pay the monthly rents, is taken.thus, on the issue of existence of relationship of landlord and tenant between the parties in the eviction suits, there was admission of the defendants/tenants that they had regarded the plaintiffs to be their landlords and used to make payment of rents to them. the controversy raised by the tenants in the inter-pleader suit no. 52 of 1983 as to whom should they pay rent. was resolved by the impugned judgment of the trial court in the said title inter-pleader suit. against the judgment of the trial court in the inter-pleader suit no. 52 of 1983. the plaintiffs/tenants preferred first appeal no. 283 of 1989 (r) before the high court which was dismissed on 21.11.1989. against the order of dismissal of the learned single judge, the plaintiffs/tenants preferred l.p.a. no. 152 of 1998 (r) which was also dismissed by a division bench of the high court. the finding of the trial court in title inter-pleader suit no. 52 of 1983 that the defendants second set namely, the plaintiffs in the individual eviction suits were the owners/landlords of the suit lands and that they were entitled to claim and receive rents from the tenants, became thus final and conclusive.interestingly, the state of bihar had also filed first appeal no. 293 of 1989 (r) assailing the judgment passed in title inter-pleader suit no. 52 of 1983. this appeal was dismissed by a single judge of the high court. against the order of dismissal, the state of bihar preferred l.p.a. no. 508 of 2004 but the same was dismissed. against the order of dismissal, the state of jharkhand preferred special leave petition before the hon'ble supreme court vide s.l.p. no. 6838 of 2006 which was also dismissed. it is thus seen that the controversy sought to be raised against the findings of the trial court and of the lower appellate court on these issues stood finally settled by the high court in the first appeal, confirmed in the letters patent appeals and ultimately by the apex court.24. next, as to the controversial issue as to whether deposit of monthly rents by the tenants in the treasury pursuant to an order passed by the rent controller under the provisions of section 19(2) of the bihar building (lease, rent and eviction) control act, 1982 could protect them from default, the same was resolved in the earlier suit vide title (eviction) suit no. 83 of 1980 preferred by the plaintiff namely sumerchand jain against one of the tenants birendra kumar sinha in which it was held by the trial court that since there being no bona fide dispute as to the relationship of landlord and tenant between the parties of the said suit, the provisions of section 19(2) of the bihar building (lease, rent and eviction) control act, 1982 did not apply. this finding was upheld not only in the first appeal against the judgment of the trial court but also in the second appeal no. 47 of 1987 (r) by the high court. the decision of the high court attained finality and was binding both on the trial court and the lower appellate court.25. it is thus seen that finding on the major issues involved between the parties both in the inter-pleader suit and in the title eviction suits namely, the issue relating to existence of relationship of landlord and tenant and the right of the plaintiffs/landlords to claim and realize rent from the tenants, became finally settled. likewise, the issue as to whether the plaintiffs were the owners of the suit properties and therefore, the landlords are entitled to claim and receive rents and not the state of bihar, has been decided conclusively up to the apex court in favour of the plaintiffs in each of the eviction suits.the only issue which remained to be decided in the eviction appeals is the issue relating to the ground of default in payment of rent as raised by the plaintiffs/landlords in each of the suits. it is to be noted that in all the eviction suits, the defence advanced by the plaintiffs against the ground of default was common namely, that since they used to deposit rents in the treasury pursuant to an order of the rent controller, they cannot be considered to be defaulters. admittedly, the tenants had earlier accepted the plaintiffs to be their landlords and had paid rents to them, but they had stopped making payments to the plaintiffs since they began depositing rents in the treasury. thus, the case of the appellants in each of the title appeals on the issue of default was squarely covered by issue of default raised by the contesting appellants in the eviction suit no. 88 of 1989.26. counsel for the appellants while referring to the provisions under order xvii rules 2 and 3. cpc and order xli rule 17, qpc, vehemently argues that the lower appellate court could not have dismissed the suit on merits without hearing the appellants, since such procedure is barred specifically under the aforesaid provisions of law.27. order xvii rules 2 and 3 of the code of civil procedure reads as follows:2. procedure if parties fail to appear on day fixed.-where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by order ix or make such other order as it thinks fit.(emphasis supplied)[explanation.-where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion proceed with the case as if such party were present].3. court may proceed notwithstanding either party fails to produce evidence, etc.-where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the court may, notwithstanding such default,-(a) if the parties are present, proceed to decide the suit forthwith; or(b) if the parties are, or any of them is, absent, proceed under rule 2]the introduction of the phrase 'make such other order as it thinks fit' is apparently to enable the suit to be decreed or to be adjourned. if there are no circumstance justifying decreeing of the suit or adjournment of it, then only the court must proceed under order ix of the code of civil procedure. the expression confers discretion on the court either to adjourn the suit or to proceed on merits if there are sufficient material to justify that course. where court contemplates an order other than one which can be passed under order ix, the court is empowered to pass any order if justice or circumstance of the case require.28. explaining the scope of the provisions of order xvii rules 2 and 3, cpc, full bench of allahabad high court in the case of m.s. khalsa v. chlranji lai and ors. reported in : air1976all290 . has observed as follows:5. an analysis of rule 2 will show that it would be attracted to cases:(i) which come up for hearing on a date which was fixed after adjournment of the suit on a previous day;(ii) the parties or anyone of them fail to appear on the date so fixed;(iii) where the evidence or substantial portion of evidence of any party has already been recorded on a previous day and such party if fails to appear on the day so fixed a court can use its discretion to proceed with the case and may dispose of it on the merits treating that such party was present;(iv) a party which is present and does not do anything else, will be treated as not having failed to appear; and(v) a party represented in court by an agent or pleader, though engaged only for the purpose of making an application, will also be deemed not to have failed to appear.rule 2 substantially concerns itself when a party or anyone of them falls to appear on the adjourned date. when both the parties or anyone of them is absent on the adjourned date, rule 2 squarely will apply and rule 3 will be excluded. it follows, therefore, that when any party to a suit, to whom time had been granted, fails to produce its evidence or to produce its witnesses or falls to perform any other act necessary to the further progress of the suit for which time had been allowed, is absent on the adjourned date, rule 3 will not apply.order xli rule 17 of the code of criminal procedure reads as follows:17. dismissal of appeal for appellant's default-(1) where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed.[explanation.-nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits.](2) hearing appeal ex parte.-where the appellant appears and the respondents does not appear, the appeal shall be heard ex parte.29. it would appear that while the position of order xli rule 17 of the code of civil procedure lays down that if the appellant does not appear when the appeal is called upon for hearing, the court may make an order that the appeal be dismissed. the explanation to the sub-rule lays down that nothing in the sub-rule shall be construed as empowering the court to dismiss the appeal on merits.30. a similar question came up for decision before a bench of the rajasthan high court in the case of dargah committee, ajmer v. smt. hamida banu and anr. . while considering the scope of rule 17 of order xli, cpc. the court recorded its interpretation of the provision in the following manner:the explanation given in rule 17 of order xli, cpc suggests that the explanation only limits the scope of rule 17 and does not altogether take away the powers of the court to decide the appeal on merits if other provisions of law permit it to do so. the explanation was necessary as it was dealing with the matters of dismissal of appeal for default. therefore, rule 17 has to be treated as only directory in nature and by way of explanation declares that court shall not decide the appeal on merits under rule 17. there is no absolute bar therefore for deciding the appeal on merits under the other provisions of law even if the appellant does not appear on the date of hearing of the appeal.the court proceeded further to discuss the powers of the appellate court under section 107, cpc and observed as follows:section 107, cpc vests substantial powers on the appellate court and lays down that subject to such conditions and limitations, as may be prescribed, the appellate court shall have power to determine the case finally. it is not only the power but it is the duty of the appellate court under section 107, cpc to decide the appeal on the entire facts and law. every court trying civil cases has inherent powers which is saved by section 151, cpc to take cognizance of the questions which are impediment in the disposal of the appeals and, in fact, such powers should be exercised in order to meet the ends of justice where there may be no direct statutory provision therefore. there is no direct, or even by implication, any prohibition against the disposal of the appeals on merits if the appellant is absent. it is true that section 107 is subject to the limitations and conditions referred to in the provisions in the civil procedure code, but to report, there is no such limitation prescribing a total prohibition in the matter of dismissal of the appeal on merits if the appellant is absent. rule 17 of order xli of the code of civil procedure only deals with a question that if a court does not dismiss the appeal in default, and wants to decide the appeal on merits, rule 17 will not come into play at all. it only declares that sub-rule (1) does not empower the court under rule 17, but it does not say that it prohibits the court from deciding the appeal on merits.31. following the above logical interpretations of order xvii. rule 2 and order xli rule 17 of the code of civil procedure, it can reasonably be stated that where the court finds that there is substantial evidence and materials already on record on the basis of which the suit or appeal can be decided on merits, provision of sub-rule (2) of order xvii, cpc enables the court ample powers to proceed with the dismissal of the suit/appeal on merits even in absence of the plaintiff/appellant.32. in the instant case, though the appellate court has noted that the appeals in respect of absolute appellants are being disposed of under the provisions of order xvii rule 3 of the code of civil procedure, but the facts indicate that dismissal of the appeals on merits was in exercise of the powers given in explanation to order xvii rule 2 of the code of civil procedure. as has been explained by the allahabad high court in m.s. khalsa's case [supra] though, the label and description given by the lower appellate court to its action is not decisive, the order as a whole should be construed to find out if the court acted on the view whether right or wrong, that one party appeared, but the other party failed to appear. if facts on the basis of which the court proceeded under order xvii, rule 3, cpc, are such that an order under rule 2 could be justified, the order can be treated as one under rule 2.32. considering the fact situation of the present case and the circumstances in which the appeals came to be disposed of on merits on the reasons assigned therefore by the lower appellate court, by applying the provisions of order xvii rule 2 of the code of civil procedure, the expression 'may' as appearing in order xli rule 17 would apply and has to be deemed as conferring discretion on the appellate court either to dismiss the appeal or to proceed to decide the same on merits. the materials available on record in each of the appeals,' were substantial and sufficient for decision of the appeals on merits. the issues involved in each of the appeals were common and assistance to the appellate court was available for deciding the issues from the arguments advanced by counsel for the appellants in one of the appeals at the time of hearing. in the light of the above discussion, i do not find any illegality in the exercise of powers by the lower appellate court in deciding the appeals on merits even though, the appellants in four out of five appeals failed to argue their respective cases before the court.33. on the last surviving issue as to whether the tenants/defendants in the individual eviction suits had defaulted in payment of rents, and therefore, were liable for eviction from the suit premises under their respective occupation, the trial court as well as the lower appellate court have decided this issue on the basis of the evidence relating to the facts involved in each of the cases. since both the trial court and lower appellate court have concurred on the findings on this issue and there being no substantial question of law involved on this issue other than those which are already been answered, concurrent findings of both the court's below that the tenants/defendants in each of the title (eviction) suits have defaulted in payment of the monthly rents and therefore, are liable for eviction from the suit premises under their respective occupation, cannot be interfered in the present appeals.for the reasons discussed above, 1 do not find any merit in any of these appeals. accordingly, these appeals are dismissed with cost(s) throughout.

Judgment:

D.R.R. Patnaik, J.

1. The present appeal are directed against the common judgment dated 11.1.2005 passed by the 1st Additional District Judge, Hazaribagh, dismissing five Title Appeals filed against the judgment dated 31.3.1989 and its corresponding decree dated 10.4.1989 passed by the Sub-Ordinate Judge, Hazaribagh commonly in five separate Eviction Suits which were tried analogously along with one inter-pleader suit.

Since questions of law involved in all these appeals are common, they are disposed of by this common judgment.

2. Litigation in these appeals has a chequered history. The respondents Rupchand Jain, Sumerchand Jain and Dhirendra Kumar Jain filed individual eviction suits under the Rent Control Act praying for eviction of their respective tenants from the suit premises, on the ground of default in payment of monthly rents. Their claim was that the property constituting the suit premises in each suit was purchased by them by virtue of six separate registered sale deeds dated 28.5.1979 from the previous owners. Defendants in each of the eviction suits were the original tenants under the erstwhile owners and used to pay rent to them. After purchase of the properties, the plaintiffs as also the vendors had informed the tenants about the transfer of the suit properties in favour of the plaintiffs. On such information, defendants/tenants, except the tenant Sardar Singh (defendant in Title Suit No 14 of 1996), began paying rents to the plaintiffs. However, later, they stopped paying rents to the plaintiffs who therefore claimed default as cause of action for filing the suits for eviction.

3. Defendants in each of these eviction suits denied relationship of landlord and tenants between them and the plaintiffs and made counter claim that the suit properties were Khas Mahal Property and not the properties of the plaintiffs. Raising such controversy, the defendants applied before the Sub Divisional Officer-cum-House Rent Controller under Section 19(2) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 on 30.6.1979 seeking an order to deposit the monthly rents in the Government Treasury. The Sub-Divisional Officer vide his order dated 20.8.1979 directed the defendants/tenants to deposit their respective monthly rents in the Treasury and in pursuance thereof, the defendants deposited the monthly rents in the Treasury. The defendants contended that in such view of the matter, they cannot be said to have defaulted in payment of rents.

Equipped with the order of the Sub-Divisional Officer, the defendants/tenants joined together and filed an inter-pleader suit bearing Title Suit No. 52 of 1983 impleading the State of Bihar and the Khas Mahal Authorities as defendants No. 1 to 3 as one set and the three plaintiffs/purchasers of the suit property, as defendants No. 4 to 6 second set. The plea taken by the plaintiff in the inter-pleader suit was that they being the tenants in respect of the suit premises pertaining to the individual eviction suits, seek declaration from the Court as to which of the two sets of the defendants are the owners/landlord of the suit premises, entitled to receive rents from them.

In the inter-pleader suit, one of the plaintiffs/tenants Peer Mohammad preferred a prayer for injunction to restrain the plaintiffs of Title (Eviction) Suit No. 1 of 1983 from proceeding with the eviction suit filed against him. Learned Munsif, Hazaribagh rejected the prayer for injunction by order dated 21.12.1983. Against this order, the tenant Peer Mohammad preferred Misc. Appeal No. 6 of 1984 (R) before the Patna High Court, Ranchi Bench. The Misc. Appeal was dismissed in terms of the order dated 16.11.1984 but with a direction that the Title Suit No. 1 of 1983, which was originally filed in the Court of Munsif, be transferred to the Court of Sub-Ordinate Judge, Hazaribagh and both the suits namely Title (Eviction) Suit No. 1 of 1983 and inter-pleader suit being Title Suit No. 52 of 1983, be heard analogous. Pursuant to the transfer of Title (Eviction) Suit No. 1 of 1983 to the Court of Sub-Ordinate Judge, Hazarbagh, it was registered and renumbered as Title (Eviction) Suit No. 4 of 1988.

Taking a clue from the above transfer, the defendants/tenants in the other eviction suits preferred transfer petition before the District Judge, Hazaribagh for transfer of their respective eviction suits from the Court of Munsif to the Court of Sub-Ordinate Judge, Hazaribagh for analogous trial of their suits along with the inter-pleader Title Suit No. 52 of 1983. Pursuant to the order dated 4.9.1986 passed by the learned District Judge, Hazaribagh allowing the prayer for transfer, all the remaining Title (Eviction) Suits were transferred to the Court of Sub-Ordinate Judge, Hazaribagh for analogous trial with the inter-pleader suit being Title Suit No. 52 of 1983.

4. Thus, on being directed by the order of the District Judge for analogous trial of all the suits, the learned Sub-Ordinate Judge conducted joint trial of all the eviction suits along with the inter-pleader suit, by allowing the examination of the witnesses adduced by the plaintiffs and the defendants of each of the eviction suits in respect of their respective pleadings, both in the inter-pleader suit and in their eviction suits.

5. Before proceeding further, it would be relevant to record concisely a chart indicating the names of the parties, the suit premises, description of the eviction (Title Appeals) and of the present second appeals:

________________________________________________________________________Eviction Suit No. Suit Period Eviction Secondand Name of Premises of (Title) Appealparties default Appeal No. Nos. andclaim and Name Name ofof Parties Parties________________________________________________________________________14/1986 Shop No. From 8/1989 89/2005Sumerchand 10 situate March Sardar SardarJain v. Sardar on portion 1983 Gurmukh GurmukhSingh of Plot No. Singh Singh v.N.B. Previously 105 of (legal heir SumerchEviction Suit No. Khata No. of Late and Jain11/85 was filed 124, Sardarbefore Id. Munsif Holding Singh) v.on 9.8.1985. On No. 160, Sumerchtransfer to the Ward No. and JainCourt of XV of N.B. ThisSubordinate Hazariba appeal wasJudge, the same gh argued bywas numbered Municipal appellant'sas Eviction Suit ty. counselNo. 14 of 1986. beforeappellateCourt.________________________________________________________________________3/1988 Shop No. 8 From 1/1989 145/2005Sumerchand situate on May Munshi MunshiJain v. Munshi portion of 1983 Thakur v. Thakur v.Thakur Plot No. 105 Sumerch SumerchN.B. Previously of Khata and Jain and JainEviction Suit No. No. 124,12/87 was filed Holding No.before Id. Munif 160, Wardon 11.5.1987. On No. XV oftransfer to the HazaribaghCourt of Subor- Municipality,dinate Judge, the same was numb-ered as EvictionSuit No. 3/88.________________________________________________________________________2/1988 Shop No. 4 From 6/1989 144/2005Rupchand Jain situates on Janua Ashok Ashokv. Kalyan Dutt a portion of ry Kumar KumarAgrawal Plot No. 105 1981 Agrawal AgrawalEviction Suit No. of Khata and others and others25/86 was filed No. 124, (legal v.before the Ld. Holding No. heirs of RupchandMunsif on 160, Ward Kalyan Jain30.9.1986 on No. XV of Dutttransfer to the Hazaribagh Agrawal)Court of Ld. Sub- Municipality. v.Judge. The same Rupchandwas numbered Jainas Eviction SuitNo. 2/88.________________________________________________________________________4/1988 Shop No. From 5/1989Rupchand Jain 20 situate July Peerv. Peer on portion 1979 MohammMohammad of Plot No. ad v.N.B. Previously 105 of RupchandEviction Suit No. Khata No. Jain,1/83 was filed 124, 140/2005before Ld. Munsif Holding Peeron 3.1.1983. On No. 160, Mohammtransfer to the Ward No. ad v. RoopCourt of Subor- XV of Chanddinate Judge the Hazaribagh Jainsame was num- Municipality.bered as EvictionSuit No. 4/88________________________________________________________________________5/1988 Shop No. From- 4/1989 149/2005Rupchand Jain 19 situate Janua Sardar Sardarv. Sardar on portion ry Surendra SurendraSurendra Singh of Plot No. 1981 Singh v. Singh v.N.B. Previously 105 of Rupchand RupchandEviction Suit No. Khata No. Jain Jain67/83 was filed 124,before Ld. Munsif Holdingon 5.7.1983. On No. 160,transfer to the Ward No. Court of Subor- XV ofdinate Judge, the Hazaribasame was num- phbered as Eviction MunicipaliSuit No. 30/85 ty.and thereafterEviction Suit No. 5/88.________________________________________________________________________

6. At the trial, In all the eviction suits, the plaintiffs Sumerchand Jain and Rupchand Jain, who were defendants second set in the inter-pleader suit, were examined as DW 11 and DW 12 respectively and had deposed in support of their respective cases claiming that they were the landlords of the suit premises since after the date of purchase of the property and that the defendants/tenants had paid rents to them against which plaintiffs had issued rent receipts and that, subsequently the tenants had stopped payment of rents and thereby became defaulters for different specific periods, in respect of the suit premises in the different suits.

The defendants/tenants who were plaintiffs in the inter-pleader suit, were examined as PWs 12, 18, 19, 20 and 28 respectively. Except the tenant Sardar Singh (PW 20). The remaining tenants had admitted in their respective depositions that they had paid the monthly rents to the plaintiffs and that, earlier they used to pay the rents to the vendor of the plaintiffs.

They however qualified their statements that rent paid by them to the plaintiffs was by mistake and that, they had preferred an application before the Rent Controller and as per the order of the Rent Controller dated 20.8.1979, they were depositing their rent in the Treasury. They had also claimed that they had applied before the Khas Mahal Authorities for settlement of the suit property in their favour treating the same as a Khas Mahal Lease hold Land, but their application was rejected.

7. On the basis of the rival pleadings the trial Court framed the following issues.

(i) Are the Title Suit No. 52/83, Eviction Suit No. 2/85 (Now numbered as Eviction Suit No. 4/88), 30/85 (Now numbered as Eviction Suit No. 5/88), 14/86, 1/88, 2/88 and 3/88 maintainable in the present form?

(ii) Have the plaintiffs of T.S. 52/83, Eviction Suit Nos. 2/85 (Now numbered as Eviction Suit No. 4/88), 30/85 (now numbered as Eviction Suit No. 5/88), 14/86, 1/88 and 3/88 got valid cause of action to bring their respective suits?

(iii) Are the suits being T.S. 52/83, Eviction Suit 2/85 (now numbered as 4/88), 3/88 (now numbered as 5/88), 14/86, 1/88, 2/88 and 3/88 barred by law of limitation?

(iv) Is T.S. 52/83 hit under the provisions of Specific Relief Act?

(v) Are the plaintiffs of T.S 52/83 entitled to the reliefs as claimed in the suit?

(vi) Has the suit property vested in the State (Khas Mahal) and is it (State Khas Mahal) owner thereof?

(vii) Are the defendant Nos. 4 to 6 or defendant Nos. 1 to 3 of T.S. No. 52/83 owner lands of the suit premises? And whether they are entitled to get rents-defendant Nos. 1 to 3 or defendant Nos. 4 to 6 from the plaintiffs of the T.S. No. 52/83?

(viii) Are the plaintiff Nos. 1, 3, 11, 17 (correct No. 18), (correct No. 16) and 12 (correct No. 13) of T.S. No. 52/83 are respectively the defendants of Eviction Suit Nos. 2/83 (now numbered as Eviction Suit No. 4/88), 30/85 (now numbered as Eviction Suit Nos. 5/88, 14/ 86, 1/88 and 3/88 defaulter in payment of monthly rent?

(ix) Are the defendant Nos. 4 to 6 of T.S. 52/83 who are plaintiffs of Eviction Suit Nos. 2/85 (now numbered as 4/88) 30/85 (now numbered as 5/88) 14/86, 1/88, 2/88 and 3/88 entitled to decree for eviction of the defendants of the said six eviction suits?

(x) Are the Eviction Suits Nos. 2/85 (now numbered as Eviction Suit No. 4/88), 30/85 (now numbered as Eviction Suit No. 5/88), 14/86. 1/88, 2/88 and 3/88 maintainable under the provisions of Bihar Building (L.R.E) Control Act?

(xi) Is the Eviction Suit No. 14/86 barred by law of estoppel and res judicata?

(xii) To what other relief or reliefs, if any, the plaintiffs of T.S 52/83 and Eviction Suit Nos. 2/85 (now numbered as Eviction Suit 4/88), 30/85 (now numbered as Eviction Suit No. 5/88, 14/86, 1/88, 2/88 and 3/88 are entitled to?

8. While answering the issue No. 7 in favour of the defendant second set (plaintiffs of the eviction suits), the trial Court observed that admittedly, all the tenants used to pay rents to the vendor of the plaintiffs and since after the purchase of the suit properties, plaintiffs stepped into the shoes of the vendor and became the owners of the suit properties and subsequent to the purchase, after properties were mutated in the revenue records in the names of the purchasers after rejection of the objections raised by the tenants. The application of the tenants to the Khas Mahal Authorities for grant of lease of the property in their favour, was rejected. Furthermore, there was no evidence whatsoever to show that Khas Mahal Authorities had ever claimed the suit properties or had ever demanded rent from the tenants who were in occupation of the same. The trial Court had also answered the question pertaining to issue No. 8 as to whether the plaintiffs of the inter-pleader suit who are defendants In the respective eviction suits, had defaulted in the payment of monthly rents, by holding that the tenants of the eviction suits were defaulters in payment of the rents and had observed that the application filed by the tenants before the House Rent Controller was malajide and that the plaintiffs/purchasers were never made parties in the proceeding before the House Rent Controller and that the order of deposit of the rent as passed by the House Rent Controller, was obtained behind the back of the plaintiffs/purchasers. The trial Court had also observed that no evidence was adduced by the tenants to show that the Khas Mahal Authorities had ever demanded rent from any of the tenants and on the other hand, the tenants had admittedly paid rents to the vendor of the plaintiffs/purchasers and as such, deposit of the rent made by the tenants in the Treasury was not bona fide and such deposits does not save the tenants from their liability of being defaulters.

9. Against the common judgment and decree passed by the Subordinate Judge, the tenants/defendants in the Title Eviction Suits preferred five separate Eviction (Title) Appeals vide Title (Eviction) Appeals No. 4/83, 5/89, 6/89, 7/89. 8/89 in the Court of District Judge, Hazaribagh. Subsequently, all the Eviction (Title) Appeals were transferred to the Court of 9th Additional Sessions Judge, Hazaribagh and later, the Title Appeals were transferred to the 1st Additional Sessions Judge, Hazaribagh.

10. It would be worth relevance to note that after the appeals were initially filed in the Court of District Judge, Hazaribagh and were heard on 5/6 dates, tenants/appellants made a prayer for stay of further proceedings in the appeals, stating that they would obtain order from the High Court. On transfer of the appeals to the Court of 9th Additional Sessions Judge, the appellants/tenants did not prefer to argue the appeals, though appeals were fixed for hearing on 21.6.2004. When the appeals were transferred to the Court of 1st Additional Sessions Judge, the appellants/tenants, instead of submitting their arguments, filed a transfer petition demanding transfer of the appeals from the Court of 1st Additional Sessions Judge to any other Court. The transfer petition was however dismissed by the District Judge by order dated 22.12.2004. After rejection of the transfer petition, the first appellate Court fixed all the five appeal for hearing. However, except the counsel for the appellant in Eviction (Title) Appeal No. 8 of 1989, counsel for the appellants in the remaining four appeals did not appear to argue the appeals. The lower appellate Court under such circumstances proceeded to hear and decide all the appeals on merits on the ground that identical questions were involved in all the appeals and the issues to be decided in the contested Eviction (Title) Appeal No. 8/89 covers all the issues which arise for decision in the other four Eviction (Title) Appeals.

11. While proceeding to dispose of the appeals on merits, the lower appellate Court made a record of the pleadings of the parties in each of the eviction suits and in the inter-pleader suit. It also considered and recorded the issues framed by the trial Court involving pleadings of the parties not only in the inter-pleader suit, but also in each of the eviction suits. It also meticulously scrutinized the evidences adduced by the plaintiffs/landlords and that of the defendants/tenants in respect of the pleadings of the parties in each of the eviction suits and in the inter-pleader suit. The lower appellate Court thereafter proceeded to examine the findings of the trial Court on the relevant issues namely:

1. Whether the trial Court had framed issues regarding the relationship of landlord and tenant between the parties in respect of each of the eviction suits?

2. Whether the plaintiffs in the eviction suits were the owners of the suit premises in each of the suits and were entitled to realize rent from the defendants/tenants and, whether the tenants were liable to pay rents to the plaintiffs?

3. Whether dismissal of the Title (Eviction) Suit No. 84 of 1980 filed by the plaintiff Sumerchand Jain against the defendant Sardar Singh, operated as res judicata debarring the same plaintiff from filing a fresh title eviction suit against the same defendant?

4. Whether the pendency of the Letters Patent Appeal No. 508 of 2004 filed by the State of Bihar against the plaintiffs and the defendants of the eviction suits would operate as a restraint on the trial Court as also on the lower appellate Court from deciding the suits and the corresponding appeals?

5. Whether the findings of the trial Court on each of the issues suffer from any illegality or infirmity?

12. On the issue as to whether the trial Court had framed issue regarding relationship of landlord and tenant between the parties in each of the eviction suits and whether, if so, the finding of the trial Court in favour of the plaintiffs/landlords and against the defendants/tenants was correct, the lower appellate Court on going through the impugned judgment of the trial Court has held that the issue Nos. 7 and 8, as framed by the trial Court, were adequately framed in order to cover the issue of relationship of landlord and tenant between the parties and that, since the finding on the issue as to whether the plaintiffs or the State of Bihar was the owner of the suit properties, was decided and upheld even by a Division Bench of this Court by holding that the plaintiff were the owners of the suit properties and they were entitled to claim and receive rents from the tenants and therefore, the finding of the trial Court on the above issues was correct and conclusive.

It was also observed by the lower appellate Court that Title (Eviction) Suit No. 84 of 1980 earlier filed by the plaintiff Sumerchand Jain against the defendant Sardar Singh was dismissed since the ground of default in payment of rent for the periods stated therein could not be proved, but the finding of the trial Court in the said suit that the relationship of landlord and tenant between the plaintiffs and the tenants in respect of the suit premises were established and proved, remained conclusive and even though the plaintiffs after filing Title Appeal against the judgment and decree in the said suit, withdraw the same, finding of existence of relationship of landlord and tenant between the parties became final and conclusive in absence of any cross appeal preferred by the defendant against the trial Court's finding.

As regards the issue relating to default in payment of rent, the lower appellate Court took note of the admission made by the defendants in the eviction suits that they did accept the plaintiffs as their landlords since after the date of purchase of the suit properties and the defendants, for some months, paid rent to the plaintiffs and, thereafter, abstained from making payments. The lower appellate Court had also taken note of the fact that the plea of the defendants in the eviction suits that they have deposited rent in the Treasury pursuant to an order of the Sub-Divisional Officer and, therefore, they cannot be treated as defaulter, was rejected by the trial Court. The lower appellate Court upheld the finding of the trial Court that deposit of rent by the tenants in the Treasury could not protect them from being defaulters in payment of rent, as has been upheld by the High Court in the First Appeal preferred by the defendants and in absence of any order of any superior appellate authority, the finding of the High Court remained conclusive and binding.

13. Thus, by the impugned common judgment, the lower appellate Court dismissed all the appeals and confirmed the findings recorded by the trial Court in respect of each of the issues framed.

14. The appellants in all second appeals have assailed the impugned judgment of the lower appellate Court and that of the trial Court raising the following questions of law.

1. Whether the learned Courts below have acted against the law in not allowing the appellants to engage a lawyer to argue the appeal since the previous conducting lawyer who had accepted the fees from the appellants, failed to argue the appeal and, whether, without notice to the appellants, the lower appellate Court had acted against the law in deciding the appeal of the appellants under Order XVII Rule 13 of the Code of Civil Procedure instead of dismissing the same for default under Order XVII Rule 13 of the Code of Civil Procedure?

2. Whether the learned Court below had illegally discarded the pleading and evidences - oral and documentary - particularly of PW 28 in Title Inter Pleader Suit No. 52/83 and, whether the principle of res judicata should have been applied on the question of payment of rent/default when pursuant to the order of the House Rent Controller in the Rent Control Case No. 18/79, appellants had been depositing the monthly rents?

3. Whether the lower appellate Court had committed gross illegality in not considering the pendency of L.P.A. No. 508/2004 and decided that the suit properties were not Khas Mahal Properties, even without impleading the State as a necessary party?

4. Whether the doctrine of estoppel applies in the case when there is dispute concerning relationship of the parties?

5. Whether the learned Courts below had erred in decreeing the suit under the provisions of Bihar Building (Lease, Rent and Eviction) Control Act without framing and issue on relationship landlord and tenant between the parties.

6. Whether the findings of the Courts below holding the appellants/tenants as defaulter can be sustained in law in absence of any finding on the issue as to whether there existed any bona fide dispute regarding the plaintiffs claim of ownership and his right to receive rent?

7. Whether the bona fide dispute regarding the plaintiffs right to receive rent came to an end only after adjudication on the issue in inter-pleader suit being Title Suit No. 52/83 and prior to such decision, deposit of rent in the Government Treasury by the defendants/tenants under the order of the House Rent Controller was valid?

8. Whether the Courts below had erred in failing to apply the provisions of Sections 19 and 31 of the Bihar Building (Lease, Rent and Eviction) Control Act in proper perspective?

15. Shri V. Shivnath, learned Counsel for the appellants, opens his argument by raising the preliminary question of law as to whether the leaned trial Court has not committed error by conducting joint trial of the eviction suits together with the inter-pleader suit by wrongly interpreting the term 'analogous trial', despite the fact that, cause of action and the evidences in the individual evictions suits were different? Learned Counsel argues that even though, there was an order passed in the Misc. Appeal No. 6 of 1984 (R) by the Patna High Court, Ranchi Bench for analogous trial of the eviction suit No. 1 of 1983 with the inter-pleader suit, but such order was confined only to the particular eviction suit namely Title (Eviction) Suit No. 1 of 1983 filed by the defendant/appellant Peer Mohammad and not to the other eviction suits. According to the learned Counsel, learned Court below has erred therefore in conducting joint trial not only of Title (Eviction) Suit No. 1 of 1983, but other title eviction suits also with Title (Inter-pleader) Suit No. 52 of 1983, ignoring the fact that the valuation of Title (Inter Pleader) Suit No. 52 of 1983 was more than Rs. 60,000/-.

Learned Counsel for the respondents counters this argument by clarifying that the order of analogous trial of the remaining eviction suits along with the same inter-pleader suit was passed by the District Judge and that too on the prayer of the individual defendants/tenants and therefore, there was no illegality committed by the trial Court in conducting joint trial of the eviction suits with the inter-pleader suit.

16. It is observed that after Title (Eviction) Suit No. 1/83 was transferred to the Court of Subordinate Judge for analogous trial with the inter-pleader being Title Suit No. 52/83, the defendants/tenants of the other eviction suits had voluntarily prayed before the District Judge for transfer of their respective eviction suits also to the same Court so that they may be tried analogously with the inter-pleader suit and on their prayer being allowed, eviction suits were accordingly transferred to the same Court of the Subordinate Judge.

It is also observed that the learned trial Court had considered the fact that all the tenants had jointly arrayed themselves as plaintiffs in the inter-pleader suit and made the plaintiffs in the eviction suits jointly as defendants second set. The main issue in the eviction suits as also in the inter-pleader suit was, whether defendants/tenants in the eviction suits were liable to payment to the plaintiffs/landlords (second set of defendants in the inter-pleader suit). Another ground taken in the eviction suits by the plaintiffs therein for the relief claimed, was the ground of default in payment of monthly rent, though the periods of default varied in each of the cases. The suit premises described in the individual eviction suits together, comprised the total area of land within plot No. 105 Khata No. 124 Holding No. 160 purchased by the plaintiffs/landlords from the previous owners. These Issues which arose for consideration in Title (Eviction) Suit No. 1/83 were common in all the remaining Title (Eviction) Suits. Under such circumstances, trial of all the eviction suits alongwith the Title Inter-Pleader Suit conducted jointly by the trial Court, in the light of the orders of the High Court and, the orders of the District Judge, cannot be considered as improper. Furthermore, none of the defendants/tenants in the Title (Eviction) Suits had raised any objection before the trial Court against the joint trial of all the cases. It is also observed that at the time of embarking upon conducting Joint trial of the eviction suits analogously with the inter-pleader suit, the trial Court had taken care to frame all the relevant issues which were raised by the defendants in the individual eviction suits and also the issues raised in the inter-pleader suit. The trial Court had allowed the plaintiffs and the defendants of each of the eviction suits to adduce their respective evidences at the trial and plaintiffs and the defendants of each of the eviction suits had availed the opportunity by adducing their respective evidences. Apparently, no prejudice has been caused to the present appellants/ defendants of the eviction suits. Therefore, considering all the facts, I do not find any error or illegality committed by the trial Court in conducting joint trial of all the eviction suits together with the inter-pleader suit and In passing a common Judgment for all the suits.

17. The next contention of the learned Counsel for the appellants is that the trial Court has committed serious error in failing to appreciate the fact that the eviction suit filed by the plaintiff Sumer-chand Jain against the defendant Sardar Gurmukh Singh vide Eviction Suit No. 14/86, was barred by the principle of res Judicata in as much as. earlier, the same plaintiff had filed a Title (Eviction) Suit No. 84 of 1980 against the same defendant seeking his eviction on the ground of default. The suit was dismissed by the Court of Munsif on the basis of finding that the ground of default was not proved, although the relationship of landlord and the tenant was established. Against the judgment of the Munsif, the plaintiff filed a Title Appeal registered as Title Appeal No. 23/83 which was dismissed for default since the plaintiff/appellant had failed to deposit the requisite court-fee. The dismissal of the appeal resulted in the finality of the judgment/decree passed by the Munsif and therefore, the same plaintiff could not have filed the second Title (Eviction) Suit against the same defendant all over again on the ground of default.

18. This agreement of the learned Counsel for the appellants appears to be misconceived. The previous Title (Eviction) Suit No. 84 of 1980 filed by the plaintiff/landlord Sumerchand Jain against the said defendant/tenant Sardar Gurmukh Singh for eviction was on the ground of default in payment of rent for a particular period stated in the suit and due to lack of sufficient evidence in respect of ground of default for the period mentioned in the suit, the suit was dismissed. It is however significant to note that even though, the suit was dismissed, but with a finding that there exists relationship of landlord and tenant between the plaintiff and the defendant. The tenant Sardar Gurmukh Singh (appellant in Second Appeal No. 89 of 2005) did not prefer any appeal against the finding recorded in the said suit regarding existence of relationship of landlord and tenant between him and the plaintiff of the suit. The second suit which eventually came to be disposed of by the impugned judgment of the learned Subordinate Judge, though filed for eviction of the tenant on the ground of default, but the period of default as claimed, was different. Each months default would constitute a fresh cause of action for the plaintiff. Therefore, even if the earlier Title (Eviction) Suit filed by the same landlord against the same defendant was dismissed, the second eviction suit by the same landlord on the ground of default in respect of a different period, cannot be said to be barred by res Judicata.

19. The next question raised commonly by the appellants in all the instant appeals except Title Appeal No. 8 of 1989. is whether the case being of non-appearance of the appellants, the learned lower appellate Court could have legally decided the appeals on merits?

20. As noted above, altogether five separate Eviction (Title) Appeals were filed by each of the defendants/tenants in the eviction suits. After filing the appeals, dates were fixed for hearing in the Court of District Judge where the appeals were initially filed and after 5/6 dates of hearing, appellants in each of these appeals wanted stay of the proceedings in the appeals declaring that they intended to obtain an order from the High Court for transfer of the appeals to another Court. Though, no such order was obtained from the High Court, but perhaps considering the vexatious attitude of the appellants, the District Judge transferred the appeals to another Court. In the transferee Court also, as it appears, the appellants did not show any promptness or eagerness to pursue with the appeals. The appeals were transferred yet again to another Court where dates were fixed for hearing. Here again, appellants choose not to cooperate with the Court. Except the appellant's counsel in Eviction (Title) Appeal No. 8/89 (corresponding to Second Appeal No. 149/05) the counsel for the appellants in the other four appeals abstained from arguing the appeals before the Court. Was it with intention to render the Court helpless? Could the lower appellate Court not acted upon disposing of the appeals on merits with the co- operation of the counsel appearing for the appellants in one of the Eviction (Title) Appeals namely, Eviction (Title) Appeal No. 8/89?

Mr. Shivnath, learned Counsel for the appellants, would argue that before proceeding to decide the appeal on merits, It was incumbent upon the lower appellate Court to frame Issues to be determined In the individual appeals, but this was not done by the lower appellate Court.

Learned Counsel argues further that the lower appellate Court could not have dismissed the appeals [other than the Title (Eviction) Appeal No. 8/89], without hearing the appellants and the judgment delivered by the lower appellate Court under Order XVII Rule 3 of the Code of Civil Procedure, is beyond its jurisdiction and barred by law. Learned Counsel would explain that even if the provisions of Order XVII Rule 3 of the Code of Civil Procedure is applied, it could be applied only in terms of Order IX. Rule 8 of the Code of Civil Procedure and the appeal could not be dismissed on merits in absence of the appellants.

21. Refuting the arguments, counsel for the respondents would argue that under Section 107 of the Code of Civil Procedure, the lower appellate Court had the right to determine the appeal on finality on merits. Such power can be exercised even if the appellant is not present to argue the appeal. Learned Counsel refers in this context to the judgment of Patna High Court reported in 1991 BBCJ 123.

Referring to yet another decision of the Full Bench of the Allahabad High Court reported in AIR 1976 All 290. learned Counsel argues that the judgment passed by the lower appellate Court has to be treated as Judgment passed under Order XLI Rule 17 of the Code of Civil Procedure, under which the appellate Court may either dismiss the appeal, or may decide the appeal on merits.

22. Before proceeding to resolve this controversy, it would be relevant to take note of the reasons expressed by the lower appellate Court for proceeding to decide the appeals on merits even though, the counsel for the appellants did not appear for pressing arguments.

The lower appellate had considered that the essential issues involved in all the eviction title appeals were mainly the same namely, whether the defendants/tenants in each of the eviction suits were liable to pay rent to the plaintiffs/landlords, and whether the defendants had defaulted in payment of rent? The lower appellate Court observed that the case of the appellants in all the appeals on the issue of default in terms of their common defence, is squarely covered by the issue of default raised in Eviction (Title) Appeal No. 8/89, in which counsel for the appellant did appear and pressed arguments and the materials available pn record in all the appeals were sufficient to dispose of the appeals on merits.

The lower appellate Court has also considered from the records that ever since after filing the appeals, dates for hearing used to be fixed, but the appellants were evasive and the hearing of the appeals were adjourned from time to time. The lower appellate Court was thus persuaded to opine that the appeals can be disposed of on merits even if the appellants failed to appear on the date of hearing.

Was the approach of the lower appellate Court faulty?

23. The facts in the instant case are peculiar. As observed from the history of the case, the plaintiffs in the individual eviction suits are admittedly the purchasers of the suit properties. The suit premises in each of the eviction suits together comprise the total area of land purchased by the plaintiffs from the previous owner. In the written statement filed by the defendants/tenants in each of the eviction suits, it has been admitted by them that they used to pay the monthly rents to the vendor of the plaintiffs. It is also admitted by them (except the tenant/defendant namely Sardar Gurmukh Singh) that after the suit premises were purchased by the plaintiffs, the tenants continued to pay the monthly rents for some months to the plaintiffs, though later, they had stopped making payment. Defendants/tenants raised a counter plea that there was a bona fide dispute as to whether the plaintiffs had valid title to the suit properties or whether, the State of Bihar was the owner of the properties as being Khas Mahal land. This dispute was raised by all the tenants commonly in the inter-pleader suit. They however contested the plaintiffs' ground of default in payment of rent on the ground that pursuant to an order of the Rent Controller, they used to deposit their monthly rents in the Treasury till the final decision on the issue as to whom, whether the plaintiffs or the State of Bihar, should they pay the monthly rents, is taken.

Thus, on the issue of existence of relationship of landlord and tenant between the parties in the eviction suits, there was admission of the defendants/tenants that they had regarded the plaintiffs to be their landlords and used to make payment of rents to them. The controversy raised by the tenants in the inter-pleader suit No. 52 of 1983 as to whom should they pay rent. was resolved by the impugned judgment of the trial Court in the said title inter-pleader suit. Against the judgment of the trial Court in the inter-pleader suit No. 52 of 1983. the plaintiffs/tenants preferred First Appeal No. 283 of 1989 (R) before the High Court which was dismissed on 21.11.1989. Against the order of dismissal of the learned Single Judge, the plaintiffs/tenants preferred L.P.A. No. 152 of 1998 (R) which was also dismissed by a Division Bench of the High Court. The finding of the trial Court in Title Inter-pleader Suit No. 52 of 1983 that the defendants second set namely, the plaintiffs in the individual eviction suits were the owners/landlords of the suit lands and that they were entitled to claim and receive rents from the tenants, became thus final and conclusive.

Interestingly, the State of Bihar had also filed First Appeal No. 293 of 1989 (R) assailing the judgment passed in title inter-pleader suit No. 52 of 1983. This appeal was dismissed by a Single Judge of the High Court. Against the order of dismissal, the State of Bihar preferred L.P.A. No. 508 of 2004 but the same was dismissed. Against the order of dismissal, the State of Jharkhand preferred Special Leave Petition before the Hon'ble Supreme Court vide S.L.P. No. 6838 of 2006 which was also dismissed. It is thus seen that the controversy sought to be raised against the findings of the trial Court and of the lower appellate Court on these issues stood finally settled by the High Court in the First Appeal, confirmed in the Letters Patent Appeals and ultimately by the Apex Court.

24. Next, as to the controversial issue as to whether deposit of monthly rents by the tenants in the Treasury pursuant to an order passed by the Rent Controller under the provisions of Section 19(2) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 could protect them from default, the same was resolved in the earlier suit vide Title (Eviction) Suit No. 83 of 1980 preferred by the plaintiff namely Sumerchand Jain against one of the tenants Birendra Kumar Sinha in which it was held by the trial Court that since there being no bona fide dispute as to the relationship of landlord and tenant between the parties of the said suit, the provisions of Section 19(2) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 did not apply. This finding was upheld not only in the First Appeal against the judgment of the trial Court but also in the second appeal No. 47 of 1987 (R) by the High Court. The decision of the High Court attained finality and was binding both on the trial Court and the lower appellate Court.

25. It is thus seen that finding on the major issues involved between the parties both in the inter-pleader suit and in the title eviction suits namely, the issue relating to existence of relationship of landlord and tenant and the right of the plaintiffs/landlords to claim and realize rent from the tenants, became finally settled. Likewise, the issue as to whether the plaintiffs were the owners of the suit properties and therefore, the landlords are entitled to claim and receive rents and not the State of Bihar, has been decided conclusively up to the Apex Court in favour of the plaintiffs in each of the Eviction Suits.

The only issue which remained to be decided in the eviction appeals is the issue relating to the ground of default in payment of rent as raised by the plaintiffs/landlords in each of the suits. It is to be noted that in all the eviction suits, the defence advanced by the plaintiffs against the ground of default was common namely, that since they used to deposit rents in the Treasury pursuant to an order of the Rent Controller, they cannot be considered to be defaulters. Admittedly, the tenants had earlier accepted the plaintiffs to be their landlords and had paid rents to them, but they had stopped making payments to the plaintiffs since they began depositing rents in the Treasury. Thus, the case of the appellants in each of the title appeals on the issue of default was squarely covered by issue of default raised by the contesting appellants in the eviction suit No. 88 of 1989.

26. Counsel for the appellants while referring to the provisions under Order XVII Rules 2 and 3. CPC and Order XLI Rule 17, QPC, vehemently argues that the lower appellate Court could not have dismissed the suit on merits without hearing the appellants, since such procedure is barred specifically under the aforesaid provisions of law.

27. Order XVII Rules 2 and 3 of the Code of Civil Procedure reads as follows:

2. Procedure if parties fail to appear on day fixed.-Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit.

(emphasis supplied)

[Explanation.-Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present].

3. Court may proceed notwithstanding either party fails to produce evidence, etc.-Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the Court may, notwithstanding such default,-

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under Rule 2]

The introduction of the phrase 'make such other order as it thinks fit' is apparently to enable the suit to be decreed or to be adjourned. If there are no circumstance justifying decreeing of the suit or adjournment of It, then only the Court must proceed under Order IX of the Code of Civil Procedure. The expression confers discretion on the Court either to adjourn the suit or to proceed on merits if there are sufficient material to Justify that course. Where Court contemplates an order other than one which can be passed under Order IX, the Court is empowered to pass any order if justice or circumstance of the case require.

28. Explaining the scope of the provisions of Order XVII Rules 2 and 3, CPC, Full Bench of Allahabad High Court in the case of M.S. Khalsa v. Chlranji Lai and Ors. reported in : AIR1976All290 . has observed as follows:

5. An analysis of Rule 2 will show that it would be attracted to cases:

(i) Which come up for hearing on a date which was fixed after adjournment of the suit on a previous day;

(ii) The parties or anyone of them fail to appear on the date so fixed;

(iii) Where the evidence or substantial portion of evidence of any party has already been recorded on a previous day and such party if fails to appear on the day so fixed a Court can use Its discretion to proceed with the case and may dispose of it on the merits treating that such party was present;

(iv) A party which is present and does not do anything else, will be treated as not having failed to appear; and

(v) A party represented In Court by an agent or pleader, though engaged only for the purpose of making an application, will also be deemed not to have failed to appear.

Rule 2 substantially concerns Itself when a party or anyone of them falls to appear on the adjourned date. When both the parties or anyone of them is absent on the adjourned date, Rule 2 squarely will apply and Rule 3 will be excluded. It follows, therefore, that when any party to a suit, to whom time had been granted, fails to produce its evidence or to produce its witnesses or falls to perform any other act necessary to the further progress of the suit for which time had been allowed, is absent on the adjourned date, Rule 3 will not apply.

Order XLI Rule 17 of the Code of Criminal Procedure reads as follows:

17. Dismissal of appeal for appellant's default-(1) Where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

[Explanation.-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]

(2) Hearing appeal ex parte.-Where the appellant appears and the respondents does not appear, the appeal shall be heard ex parte.

29. It would appear that while the position of Order XLI Rule 17 of the Code of Civil Procedure lays down that if the appellant does not appear when the appeal is called upon for hearing, the Court may make an order that the appeal be dismissed. The explanation to the sub-rule lays down that nothing in the sub-rule shall be construed as empowering the Court to dismiss the appeal on merits.

30. A similar question came up for decision before a Bench of the Rajasthan High Court in the case of Dargah Committee, Ajmer v. Smt. Hamida Banu and Anr. . While considering the scope of Rule 17 of Order XLI, CPC. the Court recorded its interpretation of the provision in the following manner:

The explanation given in Rule 17 of Order XLI, CPC suggests that the explanation only limits the scope of Rule 17 and does not altogether take away the powers of the Court to decide the appeal on merits if other provisions of law permit it to do so. The explanation was necessary as it was dealing with the matters of dismissal of appeal for default. Therefore, Rule 17 has to be treated as only directory in nature and by way of explanation declares that Court shall not decide the appeal on merits under Rule 17. There is no absolute bar therefore for deciding the appeal on merits under the other provisions of law even if the appellant does not appear on the date of hearing of the appeal.

The Court proceeded further to discuss the powers of the appellate Court Under Section 107, CPC and observed as follows:

Section 107, CPC vests substantial powers on the appellate Court and lays down that subject to such conditions and limitations, as may be prescribed, the appellate Court shall have power to determine the case finally. It is not only the power but it is the duty of the appellate Court Under Section 107, CPC to decide the appeal on the entire facts and law. Every Court trying civil cases has inherent powers which is saved by Section 151, CPC to take cognizance of the questions which are impediment in the disposal of the appeals and, in fact, such powers should be exercised in order to meet the ends of Justice where there may be no direct statutory provision therefore. There is no direct, or even by implication, any prohibition against the disposal of the appeals on merits if the appellant is absent. It is true that Section 107 is subject to the limitations and conditions referred to in the provisions in the Civil Procedure Code, but to report, there is no such limitation prescribing a total prohibition in the matter of dismissal of the appeal on merits if the appellant is absent. Rule 17 of Order XLI of the Code of Civil Procedure only deals with a question that if a Court does not dismiss the appeal in default, and wants to decide the appeal on merits, Rule 17 will not come into play at all. It only declares that Sub-rule (1) does not empower the Court under Rule 17, but it does not say that it prohibits the Court from deciding the appeal on merits.

31. Following the above logical interpretations of Order XVII. Rule 2 and Order XLI Rule 17 of the Code of Civil Procedure, it can reasonably be stated that where the Court finds that there is substantial evidence and materials already on record on the basis of which the suit or appeal can be decided on merits, provision of Sub-rule (2) of Order XVII, CPC enables the Court ample powers to proceed with the dismissal of the suit/appeal on merits even in absence of the plaintiff/appellant.

32. In the instant case, though the appellate Court has noted that the appeals in respect of absolute appellants are being disposed of under the provisions of Order XVII Rule 3 of the Code of Civil Procedure, but the facts indicate that dismissal of the appeals on merits was in exercise of the powers given in explanation to Order XVII Rule 2 of the Code of Civil Procedure. As has been explained by the Allahabad High Court in M.S. Khalsa's case [supra] though, the label and description given by the lower appellate Court to its action is not decisive, the order as a whole should be construed to find out if the Court acted on the view whether right or wrong, that one party appeared, but the other party failed to appear. If facts on the basis of which the Court proceeded under Order XVII, Rule 3, CPC, are such that an order under Rule 2 could be justified, the order can be treated as one under Rule 2.

32. Considering the fact situation of the present case and the circumstances in which the appeals came to be disposed of on merits on the reasons assigned therefore by the lower appellate Court, by applying the provisions of Order XVII Rule 2 of the Code of Civil Procedure, the expression 'may' as appearing in Order XLI Rule 17 would apply and has to be deemed as conferring discretion on the appellate Court either to dismiss the appeal or to proceed to decide the same on merits. The materials available on record in each of the appeals,' were substantial and sufficient for decision of the appeals on merits. The issues involved in each of the appeals were common and assistance to the appellate Court was available for deciding the issues from the arguments advanced by counsel for the appellants in one of the appeals at the time of hearing. In the light of the above discussion, I do not find any illegality in the exercise of powers by the lower appellate Court in deciding the appeals on merits even though, the appellants in four out of five appeals failed to argue their respective cases before the Court.

33. On the last surviving issue as to whether the tenants/defendants in the individual eviction suits had defaulted in payment of rents, and therefore, were liable for eviction from the suit premises under their respective occupation, the trial Court as well as the lower appellate Court have decided this issue on the basis of the evidence relating to the facts involved in each of the cases. Since both the trial Court and lower appellate Court have concurred on the findings on this issue and there being no substantial question of law involved on this issue other than those which are already been answered, concurrent findings of both the Court's below that the tenants/defendants in each of the Title (Eviction) Suits have defaulted in payment of the monthly rents and therefore, are liable for eviction from the suit premises under their respective occupation, cannot be interfered in the present appeals.

For the reasons discussed above, 1 do not find any merit in any of these appeals. Accordingly, these appeals are dismissed with cost(s) throughout.

Subject	Tenancy
Court	Jharkhand High Court
Decided On	Jul-25-2008
Judge	D.G.R. Patnaik, J.
Reported in	[2008(4)JCR206(Jhr)]
Appellant	Sardar Gurmukh Singh and anr.;peer Mohammad And; Sardar Surendra Singh @ Surnedra Singh;radheshyam a
Respondent	Sumer Chand JaIn and anr.;rup Chand Jain;rup Chand JaIn and ors.;sumer Chand Jain
Disposition	Appeal dismissed
Cases Referred	Ajmer v. Smt. Hamida Banu and Anr.

Sardar Gurmukh Singh and anr. Vs. Sumer Chand JaIn and anr. - Court Judgment