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1993 DIGILAW 228 (PAT)

Manik Roy v. Raghunandan Prasad

1993-05-17

N.ROY, S.N.JHA

body1993
JUDGMENT S. N. Jha, J. - This revision is directed against an order by which the court below has, in effect -and substance, accepted the written statement without the defendant having obtained leave to contest under section 14 (4) of ,the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 ('the Act' in short). 2. The plaintiff-petitioner has instituted suit for eviction of the opposite party on the ground of personal necessity in terms of section 11(1) (c) of the Act. After initial hesitation to appear in the suit in response to summons, when steps for substituted service were taken, the opposite party finally entered appearance on 29.8.89 and filed petition for time to file written statement. The prayer was reiterated on a number of dates thereafter. On 1.6.90 the court rejected the prayer and fixed the case for ex-parte hearing on 18.6.90. The hearing was taken up on 25.6.90 and finally heard on 3.7.90. An ex-parte decree was passed directing eviction of the opposite party on 17.7.90. 3. On 13.8.90 the opposite party filed application for setting the decree under Order 9 Rule 13, Civil Procedure Code (in short 'the Code'), which was allowed and the suit was restored to its original file. The Opposite Party again prayed for time to file written statement and reiterated the prayer on 25.3.92, 24.4.92, 14.5.92 and 28.5.93. The written statement was ultimately filed on 11.6.92. On 30.7.92 the petitioner filed, a petition to reject the written statement on the ground that without taking leave of the Court to contest the suit as provided under section 14 (4) of the Act, written statement could not be accepted. The court below by the impugned order dated 6.8.92 has rejected the petition holding that non-compliance of the provisions of section 14 (4) is a mere irregularity on the strength of a decision of a single Judge of this Court in Champa Devi & ors. v. Kaushalya Devi & ors., (1991 (1) PUR, 38). 4. When this revision challenging the aforesaid order dated 6.8.92 came up for admission, a learned single Judge noticed the conflict between the judgments of this Court in 1991 BBCJ 621 (infra) and 1991 (1) PUR 38 (supra) on the interpretation of the provisions of sub-section (4) of section 14 and, accordingly, directed the case to be heard by a Division Bench. That is how the matter has been placed for hearing before this Bench. 5. The point for consideration is whether section 14 (4) providing for obtaining leave of the Court to contest the suit is mandatory or directory, non-compliance of which can be ignored as a mere irregularity. It is an admitted position that the suit in question seeking eviction on the ground of personal necessity is to be tried as per the procedure laid down under section 14 of the Act. For the purpose of appreciation of the point in issue it is not necessary to notice the entire section. Reference to sub- sections (4) and (5) would suffice. They read as follows : " (4) The tenant on whom summons is duly served (whether by ordinary mail or by registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided; and in default of the appearances in pursuance of the .summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid. (5) The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order of eviction on the grounds specified in clauses (c) and (e) of sub-section (1) of section 11." 6. A bare perusal of the provisions would make it clear that in a case where the summons has been duly served on the tenant he is precluded from contesting the suit unless he files an affidavit, "stating the grounds on which he seeks to make such contest and obtains leave from the court as hereinafter provided". In absence of such an affidavit or leave the landlord is entitled to an order of eviction as if the statements made by him (landlord) arc admitted by the tenant. In absence of such an affidavit or leave the landlord is entitled to an order of eviction as if the statements made by him (landlord) arc admitted by the tenant. Subsection (5) provides that the tenant would he entitled to grant of leave to contest if his affidavit 'discloses such facts as would disentitle the landlord from obtaining an order of eviction.' In my opinion, the provisions of sub-sections (4) and (5) have to be read together. So read, it is obvious that 'leave to contest' within• the meaning of sub-section (4) can be granted only if the tenant in his affidavit has disclosed material facts which would disentitle the landlord to an order of eviction. 7. In the case of Champa Devi (supra) the suit for eviction on the ground of personal necessity was decreed ex-parte. The tenant, thereafter, appeared with an application under Order 9, Rule 13 which was allowed. The learned Judge interpreted the order allowing the miscellaneous application as permission to contest the suit within the meaning of section 14 (4). The following observations occurring in paragraph 7 of the judgment may he noticed: "It was under this circumstance that filing an affidavit seeking permission to contest the suit was not done, Since the defendants filed an application for selling aside the ex-parte decree under Order 9 rule 13 and this was allowed and they were then allowed to contest the suit, this must, under the circumstances, he treated as compliance of the provisions of sub- section (4) of section 14 of the Act. In any view of the matter, even if it be taken that there has not been strict compliance of sub-section (4) of section 14, in the context of the facts and circumstances indicated above, this at the most will amount to an irregularity and will have no effect on the validity of the trial." 8. The learned Judge, in my respectful opinion, completely missed the point. Allowing an application under Order 9, Rule 13, no doubt, in the general sense of the term, amounts to permitting the defendant to contest the suit. Such a permission, however, is different from the permission (leave) which is required to be obtained within the meaning of section 14 (4). In an application under Order 9 rule 13 the defendant is merely required to establish grounds explaining his default. Such a permission, however, is different from the permission (leave) which is required to be obtained within the meaning of section 14 (4). In an application under Order 9 rule 13 the defendant is merely required to establish grounds explaining his default. Where 'he takes the plea of want of notice he is required to prove that the summons was not duly served. Where after appearance in suit he failed to appear when the suit was called on for hearing resulting in ex-parte decree, he is required to show sufficient cause for his nonappearance. If the court is satisfied that sufficient ground has been made out in that regard; it may permit the defendant to contest the suit after setting aside the ex-parte decree. However, for the purpose of leave to contest the suit within the meaning of section 14 (4) what the defendant is required to do is to file an affidavit 'disclosing such facts as would disentitle the landlord from obtaining an order of eviction. In other words, the import and purpose as also the basic premise of grant of leave (to contest) within the meaning of section 14 (4) is entirely different from those of the permission (to contest the suit) under the Code. Leave under section 14 (4) can be granted only whether facts relevant to pica of personal necessity or expiry of the term of tenancy, as the case may be, have been stated in the affidavit. Where the affidavit docs not disclose any such fact the cout would not be justified in granting leave. In that view of the matter, allowing an application under Order 9, rule 13 and the resultant permission of the court to the defendant to contest the suit cannot be interpreted as leave to contest within the meaning of section 14 (4) of the Act. 9. While interpreting the provisions of section 14 laying down a special procedure of trial a Division Bench of this Court in Delhi Cloth and General Mills Company Ltd. v. Suraj Kumar (1986 PUR, 982) stated: "Section 14 of the Act now provides special and exclusive procedure for trial of suits for eviction on the grounds of clauses (c) and (e) of section 11 (1). This procedure is materially and substantially different from trials of suit on the ground specified in the other clauses of the said section ..... This procedure is materially and substantially different from trials of suit on the ground specified in the other clauses of the said section ..... There is no question of any written statement or a full dressed trial as such at the threshold stage and under sub-section (4) of section 14, a tenant cannot contest the eviction unless he first files an affidavit stating the ground on which he seeks to make such a contest and obtains a pre-requisite leave from the court as provided under subsection (6) thereof." In Umesh Ram v. Shatrughan Prasad (1987 PUR, 62) a learned single Judge of this Court after noticing the ingredients of section 14 (4) made the following observations: "Therefore, notwithstanding the fact that the earlier order for setting down the case for ex-parte hearing was recalled by the order dated 15.5.86, the most essential ingredients of sub-section (4) of section 14 of the Act - mandatory in character - was not fulfilled." In Sohrai Prasad v. Smt. 8asanti Devi (1991 BBCJ, 621) the written statement of the defendant was rejected by the trial court on the ground that he did not obtain the leave to contest under section 14 (4). This Court noticed the previous decisions of the Court including Umesh Ram (supra), Delhi Cloth and General Mills Company Ltd. (supra) and observed that since the defendant never filed the required affidavit and tried to obtain leave before filing his written statement he has to thank himself for his inaction and for violating the mandate of the legislature, and refused to interfere with the order. It would not be out of place to mention here that recently in the case of Santosh Singh v. Ramchandra Sah (1992 (2) PUR, 91) a Division Bench of this Court has taken the view that after filing of the suit and up to the stage of grant or refusal of leave to contest as provided under section 14 (4), a special procedure has been provided by section 14 and the provisions as contained in Order 9, rule 13 of the Code have no application during that stage. 10. It may be stated here that in the case of Champa Devi (supra) no previous decision of the Court was noticed. 10. It may be stated here that in the case of Champa Devi (supra) no previous decision of the Court was noticed. I have already indicated above the distinction between the leave to contest within the meaning of section 14 (4) and the permission (to contest) as a result of favourable order under Order 9, Rule 13. I have no manner of doubt that in view of the special procedure provided for trial of suit for eviction on the ground of personal necessity or expiry of the period of tenancy, the requirement of taking leave of the Court as provided under Section 14 (4) is mandatory and in its absence neither the written statement can be accepted nor the defendant can be allowed to contest the suit. In my opinion, the decision rendered in Champa Devi's case (supra) does not state the law correctly and deserves to be overruled. 11. In the instant case the impugned order wholly and squarely rests on the decision in the case of Champa Devi. In view of my finding that the decision does not lay down the law correctly the order has to be struck down. 12. In the result, the order dated 6.8.92 is set aside. The application is, thus allowed, but without any order as to costs. Narayan Roy, J. - I agree.