- (1.) THE petitioner, by way of filing the present writ petition under Article 227 of the Constitution of India, has prayed for quashing and setting aside the order dated 30.1.2013(Annexure -4) passed by the Principal District Judge, Dhanbad in Title Appeal No. 10/2013, whereby, the learned court held that appeal shall not lie against the judgment and decree of T.S. No. 30/2007 passed by learned Civil Judge (Jr. Division) No. 1, Dhanbad and accordingly, the appeal filed by the petitioner was ordered to be dismissed.
(2.) HEARD the learned counsel for the parties and perused the impugned judgment as well as materials placed on record. Learned counsel for the petitioner by referring Annexure - 1 of this petition submitted that the suit of eviction under Section 11(1)(c) read with Section 14 of the Jharkhand Building(Lease, Rent and Eviction) Control Act was filed before the learned court below. By referring paras 5 and 7 of the said plaint, learned counsel for the petitioner further submitted that the ground of sub -letting was raised/taken in the plaint. It is further submitted that the issue regarding subletting was also framed by the court below and therefore, the same was also discussed and dealt with and finding was also recorded in paras 24 and 26 of the judgment and order dated 3rd December, 2012 passed by the court below. However, the appellate court has not properly considered the submission made by the petitioner - defendant and thereby, rejected the appeal by observing that the said appeal is not maintainable. Learned counsel for the petitioner further submitted that the learned court below committed an error while observing that Section 14(8) of the Act envisages that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with the procedure specified in this Section. It is submitted that in the present case, the ground of subletting was taken for recovery of possession and the learned court below has recorded its findings in the judgment and based on this finding decree for recovery of possession was passed. Therefore, the appeal shall lie under Section 96 of the Code of Civil Procedure. Learned counsel for the petitioner has referred to and relied upon the judgment reported in 1990(2) PLJR 378 in support of his submission.
(3.) LEARNED counsel appearing for the respondent supported the order passed by the learned Principal District Judge, Dhanbad in Title appeal No. 10/2013 and submitted that the learned lower appellate court after careful consideration of the facts as well as law passed the order and, therefore, the said order is not required to be disturbed.;