Krishna Prasad v. Hari Narain Prasad — 1980 DIGILAW 212 (PAT)

Judgment S. AH Ahmad, J. 1. This second appeal by the defendant arises out of a suit filed by the plaintiff-respondents for realisation of arrears of rent and also for eviction of the appellant from the suit premises. 2. The suit was decreed ex parte and thereafter an appeal was preferred before the District Judge, Patna which was heard and dismissed by the the First Additional Subordinate Judge, Patna thereafter this second appeal. 3. In order to appreciate the points raised, it will be necessary to bear the following facts in mind. The plaintiffs respondents filed the suit for eviction of the appellant and for arrears of rent on the ground of personal necessity as also on the ground that the appellant was a defaulter within the meaning of the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The suit was filed in the Court of the Munsif, at Patna. The defendant appellant appeared and filed his written statement denying the allegation that he was a defaulter. The fact that the plaintiffs required the premises for their own occupation was also denied. The defendant-appellant on 8th february, 1974 filed certain documents in the court of the Munsif, Patna, which according to him, conclusively proved that the rent, as and when became due, was paid to the plaintiffs. Before the suit could be taken up for hearing by the learned Munsif, Patna City by an administrative order passed by the District Judge, Patna on 25th March, 1974. It appears that the record of the suit was sent after this order to the court of the Munsif, patna City, but by mistake the documents that were filed by the defendants remained in the court of the Munsif, Patna.13th December, 1976 was the date fixed in the suit before the Munsif, First Court, Patna City. On that date an application was filed by the appellant praying to call for the documents that were filed by him in the court of the Munsif at Patna in the suit when it was pending therefor disposal. The prayer was allowed and the documents were directed to be called for from the court of the Munsif Patna. On that date an application was filed by the appellant praying to call for the documents that were filed by him in the court of the Munsif at Patna in the suit when it was pending therefor disposal. The prayer was allowed and the documents were directed to be called for from the court of the Munsif Patna. On 15th February, 1977 the date fixed in the suit for hearing, the plaintiffs filed hazri and an application for time was filed by the appellant on the ground that the documents called for the order dated 13th December, 1976 had not been received. The learned Munsif, rejected the prayer for time and directed that the documents should be called for through special messenger. He also observed that the documents will be received in course of the hearing of the suit At about 12 noon, the case was called out for hearing. It may be mentioned here that till then the documents were not received. An oral prayer by junior counsel engaged by the appellant was made that the suit may be adjourned at least for two hours so that the Senior counsel, who had gone to the Civil Court, at Patna may come back. The prayer was refused and the case was taken up for hearing. The junior counsel thereafter left the proceeding and the case was taken up ex parte. Four witnesses were examined and discharged and thereafter judgment in the suit was delivered on 23rd February, 1977 decreeing the suit of the plaintiffs. 4. In appeal it appears it was urged that the notice under section 106 of the Transfer of Property Act was illegal and as such the suit was not maintainable. It was also urged that the plaintiffs on the evidence have not been able to prove their personal necessity and they also could not prove that the defendant was a defaulter. These two pleas were also negatived and the appeal was dismissed. 5. Mr. A. K. Lal learned counsel for the appellant did not urge that the findings recorded by the courts below were erroneous. He, however contended that the trial court committed an error in refusing to adjourn the case on 15th February, 1977. 6. These two pleas were also negatived and the appeal was dismissed. 5. Mr. A. K. Lal learned counsel for the appellant did not urge that the findings recorded by the courts below were erroneous. He, however contended that the trial court committed an error in refusing to adjourn the case on 15th February, 1977. 6. The substantial question of law as framed by this Court at the time of admission is whether the decree passed by the court below suffers from an error of procedure in the trial of the suit. 7. In support of the question formulated at the time of admission mr. Lal urged that the defendant-appellant had filed the documents on 8th february, 1974 and when the suit was transferred to the Munif s Court at patna City from the Court of the Munsif, Patna civil courts, it was the duty of the trial court to see that all the papers including the documents in question connected with the case were received by it. He also submitted that it was not for him (the defendant) to chase the documents from the court of the munsif at Patna to the Court of the Munsif, Patna City, 8. Learned counsel for the respondents, on the other hand urged that the defendant was negligent inasmuch as he did not pursue the matter and did not see that all the documents filed by him in the Court of the Munsif, Patna, were received by the transferee court. I do not agree with him. The defendant after filing the documents on 8th February, 1974 had no control over its movement. The documents formed part of the record. When the case was transferred from the Court of the Munsif, Patna to the Court of the Munsif patna City, it was the duel responsibility of the transferor court and of the transferee court to see that all the papers were sent from the Patna Civil court to the Court of the Patna City civil court. The parties had no control over the same. However, when the appellant filed an application on 13th December, 1976 praying to call for the documents from the Court of the munsif, Patna, the learned trial court promptly passed an order to call for the documents, but thereafter his office seems to have missed it and no action in that regard was taken. However, when the appellant filed an application on 13th December, 1976 praying to call for the documents from the Court of the munsif, Patna, the learned trial court promptly passed an order to call for the documents, but thereafter his office seems to have missed it and no action in that regard was taken. Again on 15th February, 1977 (the date fixed in the suit) when the documents had not been received from the transferor court, the appellant filed another application to call for the documents and to adjourn the hearing till the documents were received. The learned Munsif disallowed the prayer for time and called for the documents through special messenger directing that the documents should be received in course of the hearing. This, in my opinion, was not a correct procedure because the suit in such circumstances was not ready for hearing. It cannot be disputed that the documents formed part of the record. The learned Munsif, therefore, should have allowed the prayer for time and taken steps to see that the documents were received by it at an early date. 9. Mr. Gupta learned counsel for the respondents raised several objections to this appeal. His first contention was that the suit should have been prosecuted by the junior counsel at the time of its hearing when the prayer to adjourn the case for two hours was rejected on account of the absence of the senior counsel. I am not impressed with this argument. Firstly, the documents, in fact, did not come and are even to this day lying the Civil Court at Patna. Secondly, as I have indicated earlier, the refusal to adjourn the suit was unreasonable. The plaintiffs respondents cannot take advantage of any subsequent event. Learned counsel next urged that the fact that the point regarding unreasonable refusal to adjourn the suit was not taken in appeal and as such this court in second appeal should not entertain this point. It is true that ordinarily this court does not for the first time entertain a new argument, but the point raised in this appeal is a point relating to the error of procedure affecting the jurisdiction of the trial court. In that view of the matter, I am inclined to hold that this point though not raised earlier can be raised for the first time in second appeal. In that view of the matter, I am inclined to hold that this point though not raised earlier can be raised for the first time in second appeal. In this connection, I may refer to the decision in the case of mahanth Daya Ram Das and others V/s. The State of Bihar and others, (1975 Bihar Bar Council Journal 667) where Sarwar Ali, J. , after considering the cases of Rose V/s. Hukbles, (1970 (1) WIR 1061 and R. V/s. Thames Magistrates Courts, (1970 (2) All ER 1219)has held that an unreasonable refusal violates the principles of natural justice. The question as to whether the refusal to adjourn the case was reasonable or unreasonable is not very difficult to answer. There was an allegation of default. The defendant denied these allegations and to support his case that there was no default, he filed certain documents, which, I am told, are in the nature of money order receipts and rent receipts. Without those documents it would have been extremely difficult if not impossible for the defendant to substantiate his case that he was not a defaulter. As I have said above, it was within the domain of the appellant to get the documents from the Court at Patna to the Court at Patna City. Steps in this regard had to be taken by the court itself. Therefore, the trial court should have adjourned the case and should have taken effective steps to see that the documents were received. The refusal to do so, therefore, in my opinion, amounted to unreasonable refusal to adjourn which, as held by Sarwar AH, j. , amounted to violation of the principles of natural justice. 10. Lastly, Mr. B. P. Gupta urged that the course open to the appellant was to file an application under Order IX, Rule 13 of the Code of Civil procedure and in support of his submission, he has referred to a case of guru Shyamalamba V/s. Kinthali Polisetti, (AIR 1979 Andhra 81 ). True, to file an application under Order IX, Rule 13 of the Code of Civil Procedure, is one of the remedies provided to a person against whom an ex parte decree is passed, but that is not the only remedy. There is also a remedy to appeal against that ex parte decree. The appellant in this case chose to file an appeal against the ex parte decree. There is also a remedy to appeal against that ex parte decree. The appellant in this case chose to file an appeal against the ex parte decree. The appeal, therefore, cannot be dismissed on the ground that he did not file an application under Order IX, Rule 13 of the Code of Civil Procedure. 11. Since the suit was heard ex parte and the defendant was prevented from cross-examining the witnesses examined by the plaintiff and also from examining his own witnesses, the case will have to be sent back to the trial court so that it should hear and dispose of the suit afresh. 12. In the result, the appeal is allowed, the judgments and decrees of the courts below are hereby set aside and the case is remanded to the trial court for a fresh decision after hearing the parties afresh in the light of the observations made above. 13. I am informed that the documents of the suit in question are still lying in the Munsifs Court at Patna Civil Court. Immediate steps may be taken by the trial court to get those documents from the said court, and the suit being of the year 1969, should be disposed of within six months from today. In the circumstances of the case, there shall be no order as to costs.