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1988 DIGILAW 341 (PAT)

Md. Fahimuddin v. Godhan Prasad Singh

1988-09-30

S.B.SINHA

body1988
JUDGMENT S. B. Sinha, J. This civil revision petition is directed against an order dated 15.4.1988 passed by Shri S. N. Gupta Sub-Judge I, Munger whereby and whereunder the learned court below in purported exercise of its power conferred upon him under section 14(4) of the Bihar Buildings Lease, Rent and Eviction Control Act, 1982 refused to grant leave to the petitioner to contest the suit and passed a consequent decree in favour of the plaintiffs opposite parties and against the defendant petitioner. 2. The plaintiffs-opposite parties filed two suits against the petitioner one being Eviction suit No. 1 of 1984 which was in relation to the premises described in Schedule I of the plaint and for realisation of the arrears of rent amounting to Rs. 7500/- together with interest at the rate of 12% per annum and another suit being Eviction suit No.2 of 1984 wherein the plaintiff sought for a decree for eviction of the petitioner from half portion of another house on the same ground as well as for realisation of arrears of rent amounting to Rs.12,2501- 3. In this civil revision application the decree for eviction passed in eviction suit No.1 of 1984 is in question. 4. In the said suit the plaintiffs inter alia claimed decree in terms of section 11 (1) (e) of the Bihar Buildings Lease, Rent and Eviction Control Act, 1982 purported to be on the ground in view of that the lease, on the basis whereof the defendant petitioner was put in possession being for a period 1.9.1980 to 31.12.1983, the plaintiffs have become entitled to a decree for eviction on the expiry of the said period. The petitioner in view of the filing of the suit filed an affidavit in terms of subsection 3 of section 14 of the Act stating therein the grounds on the basis whereof he sought the leave of the court to contest the suit. A copy of the said affidavit is contained in Annexure 1 to the application. 5. From a perusal of the impugned order dated 15.4.1985 it appears that the learned court below has taken into consideration are (sic) of the grounds mentioned in the affidavit dated 4.1,1985 filed by the defendant petitioner to the effect that be had denied the relationship of landlord and tenant by and between the plaintiff and defendant. 5. From a perusal of the impugned order dated 15.4.1985 it appears that the learned court below has taken into consideration are (sic) of the grounds mentioned in the affidavit dated 4.1,1985 filed by the defendant petitioner to the effect that be had denied the relationship of landlord and tenant by and between the plaintiff and defendant. However, the learned court below purported to have held that no where the petitioner stated, that he did not execute any sale deed in favour of the plaintiffs and the purported registered Kirayanama allegedly executed in his favour does not bear his signature or his left thumb, impression. 6. According to the learned court below the grounds taken by the petitioner in the said affidavit are not such which can entitle the petitioner to obtain the leave of the court to contest the suit. The petitioner in the aforementioned affidavit stated as follows ;- (a) That there is no relationship of landlord and tenant between the plaintiff and the defendant. (b) That the alleged Kiryanama purported to have been executed by the defendant is forged and fabricated by the plaintiff for the purpose of this suit. Further the defendant has not executed any Kiryanama for the fixed terms in favour of the plaintiff on l.9.1980. (c) That the story as propounded by the plaintiff that this defendant has executed a deed of sale on 30.8.1980 in favour of the plaintiff for the consideration of Rs. 11000/- for the suit premises is baseless, false and fabricated. (d) That the value of the suit premises being not Jess than Rs. one Lack according to the market value of the same, the question of executing the said sale deed dated 30.8.1980 by the defendant in favour of the plaintiff does not arise. (e) That the plaintiff has not acquired any title or possession over the suit premises to bring this suit of eviction against the defendant." 7. From the aforementioned affidavit it is evident that the defendant petitioner had questioned the genuineness of the sale deed as also the Kirayanama. In that view of the matter, in my opinion, the learned court below ought to have bestowed serious consideration as to whether the petitioner has made out a case for obtaining leave to contest the said suit or not. 8. In that view of the matter, in my opinion, the learned court below ought to have bestowed serious consideration as to whether the petitioner has made out a case for obtaining leave to contest the said suit or not. 8. There cannot be any doubt that had the leave been granted to the petitioner he could have proved the facts in support of his pleas taken in the affidavit by adducing evidence. 9. The learned court below, it is evident from the impugned order, has merely taken into consideration the submissions of the parties without taking into consideration that the defendant could prove his defence if an opportunity therefor was given to him to prove his case. 10. It is now well known that a dispute of fact dependent on evidence cannot be resolved or assumed against a party without giving him adequate opportunity of leading his evidence. This proposition of law emerges from the wordings of section 14 itself. 11. It must be borne in mind that the provisions for obtaining the leave of the Court to contest the suit had been made to avoid a frivolous, baseless or irrelevant pleas but if the defence of the defendant are plausible and if accepted may non-suit the plaintiff in such an event, in my opinion, leave to contest the suit should normally be granted. 12. As the learned court below has failed to pose himself the right question of law and has passed the impugned judgment without acquainting himself with the relevant facts, 'in my opinion he has misdirected himself in Jaw. 13. The impugned judgment, therefore, is liable to be set aside. 14. In the result, this civil revision petition is allowed and the impugned order dated 15.4.1985 is hereby set aside and the case is remitted to the learned court below for a fresh decision in accordance with law. However, on the facts and in the circumstances of the case there will be no order as to costs.