Mohd Sarif Tailor Alias Sarif v. Bhagwan Misra — 1997 DIGILAW 510 (PAT)

Judgment M. Y. Eqbal, J. 1. Since common questions of law and facts are involved in both the Civil Revision applications, the same were heard together and are disposed of by this common order at the admission stage itself with consent of the parties. 2. Both the Civil Revision applications arise out of the orders dated 11-6-1997 passed separately in Eviction Suit nos.16 of 19% and 15 of 19%, whereby and whereunder the learned Munsif, hazaribagh, after refusing to allow the defendants-petitioners to contest the suits passed a decree for eviction of the defendants from the respective suit premises. 3. The aforementioned suits have been filed by the owner-landlord of the building, namely, Bhagwan Mishra. The plaintiffs case in Eviction Suit No.15 of 19%, as it appears from the plaint is that the defendant was inducted in the shop premises as month to month tenant on a monthly rent of Rs.100/-. Besides the suit premises, other houses are also occupied by different tenants under the plaintiff on a monthly tenancy. The plaintiff in order to employ his son in business decided to construct a market complex, hotel and residential flats by demolishing old structures and for this purpose, the plaintiff instituted eviction suits; i. e. Eviction Suit nos.20 of 1989, 21 of 1989, 5 of 1990 and 16 of 1990 and obtained vacant possession of the premises through process of Court. The further case of the plaintiff was that after delivery of possession, the plaintiff got the premises completely demolished. It is pleaded that the tenants entered into an agreement with the plaintiff on 17-7-1989 whereby the tenants including the defendants of the instant suits undertook to vacate the premises and deliver vacant possession of the same with the undertaking given by the plaintiff that the newly constructed premises shall be let out to them on fresh terms and conditions. The plaintiff, therefore, requested the defendant to vacate the suit premises in terms of the agreement dated 17-7-1989 for demolition, but the defendant did not vacate. The plaintiff thereafter sent legal notice requesting the defendant to vacate the premises, but the defendant evaded the same on one pretext or the other. The plaintiff, therefore, requested the defendant to vacate the suit premises in terms of the agreement dated 17-7-1989 for demolition, but the defendant did not vacate. The plaintiff thereafter sent legal notice requesting the defendant to vacate the premises, but the defendant evaded the same on one pretext or the other. The plaintiff further stated that the decree passed in the aforesaid Eviction Suit Nos.20 of 1989, 21 of 1989, 5 of 1990 and 16 of 1990 have been challenged before this court in Civil Revision Nos.315, 271, 324 and 277 of 1991 (R) and the same were dismissed. The defendants of those suits then moved the Supreme Court in Civil appeal Nos.7069, 7070, 7068 and 5484 of 1993, which too were dismissed and thereafter the plaintiff got vacant possession of the premises. 4. In Eviction Suit No.15 of 19% (subject-matter of C. R. No.200 of 1997 (R) the defendant-petitioner on being served with summons appeared and filed affidavit seeking leave to contest the suit. The defendant-petitioner challenged the maintainability of the suit on the ground that title of the plaintiff is in dispute and sub-judice in a Court of competent jurisdiction and pending before the District judge, Hazanbagh, in Misc. Appeal No.3 of 1995. However, in the affidavit the defendant admitted the relationship of landlord and tenant and stated that he is in occupation of three premises, known as holding Nos. M. R.28/1, 29 and 29/1 since more than 40 years. It is stated that the agreement dated 17-7-1989 is inadmissible in evidence and cannot be looked into for the purpose of the present suit. It is further stated that the plaintiff taking undue advantage of long association, acquaintence, good faith and friendship, duped the defendant in obtaining the said agreement with clear understanding and assurance to use the same against only undesirable tenants and not against the defendant. On the basis of that agreement, the plaintiff obtained a decree in the aforesaid Eviction suit Nos.20 of 1989, 21 of 1989, 5 of 1990 and 16 of 1990. It is further stated in the affidavit that the plaintiff has no sufficient means to make any construction of market complex or hotel and the alleged agreement was neither bona fide nor reasonable. 5. It is further stated in the affidavit that the plaintiff has no sufficient means to make any construction of market complex or hotel and the alleged agreement was neither bona fide nor reasonable. 5. In Eviction Suit No.16 of 19%, the case of the plaintiff is almost similar, save and except the defendants by agreement dated 3-5-1990 undertook to vacate the tenanted premises and deliver vacant possession of the same to the plaintiff as and when the plaintiff starts demolishing his other houses for the purpose of construction of the shoping complex. By the said agreement the plaintiff also agreed to let out the newly constructed shop to the defendants on fresh terms and conditions. In the affidavit filed by the defendants of this case, similar ground of attack has been taken by stating that the title of the plaintiff is under challenge in T. S. No.126 of 1992, which is pending in appeal before the District Judge, Hazaribagh. However, the defendants have not disputed the relationship of landlord and tenant, but claimed that the alleged agreement dated 3-5-1990 being un-registered is inadmissible in evidence and the same can not be looked into. 6. The Court below by the impugned orders refused to grant leave to the defendants and the suits have been decreed directing the defendants to vacate the premises. The Court below proceeded on the basis that the relationship of landlord and tenant and the personal necessity of the plaintiff have been admitted by the defendants and the plea taken by the tenants are based on frivolous and irrelevant facts that the agreement was executed by them with an understanding that it will not be used against the defendants. 7. I have heard Mr. M. M. Banerjee and Mr. Satish Buxi, learned Counsel for the petitioners, and Mr. P. K. Prasad, learned Counsel for the opposite parties. 8. Learned Counsel appearing for the petitioners have assailed the impugned orders as being illegal and wholly without jurisdiction and in the teeth of the provisions of Sec.14 of the Bihar buildings (Lease, Rent and Eviction)Control Act, 1982 (hereinafter to be referred to as the Act for short ). P. K. Prasad, learned Counsel for the opposite parties. 8. Learned Counsel appearing for the petitioners have assailed the impugned orders as being illegal and wholly without jurisdiction and in the teeth of the provisions of Sec.14 of the Bihar buildings (Lease, Rent and Eviction)Control Act, 1982 (hereinafter to be referred to as the Act for short ). According to the learned Counsel in any view of the matter construction of new building cannot be a ground for eviction- and the defendants have made out a prima facie case which, if proved, would disentitle the plaintiff to get a decree for eviction. 9. On the other hand Mr. P. K. Prasad has submitted that several other suits have been decreed by the learned Court below against the other tenants on the basis of the agreement, which is subject-matter of these suits and the said decree have been ultimately confirmed by the Supreme court. According to Mr. Prasad there is no infirmity or illegality in the orders of eviction passed by the learned Court below, decreeing the suits after rejecting the application for leave to contest the suits. Learned Counsel put heavy reliance on the decision of this Court in the case of sitaram Chaudhary V/s. Bhagwati Devi and another, 1986 BLJR 649. 10. Section 14 of the Act is a special procedure introduced for the first time in the Act of 1982. The sole object of introduction of this Section is to provide speedy remedy for eviction where the landlord requires the premises for his bona fide requirement or if the fixed period of lease has expired. By introduction of this section a vital departure has been made in the Act with regard to the procedure for trial of eviction suits brought by the landlord on the aforesaid two grounds. The aforesaid provision of Sec.14 and similar provision under the Rent Control acts of other States came up for consideration before the Supreme Court and various High Courts and law has been settled in this regard. The Apex Court and the other High Courts are of the view that the provision should be liberally construed for granting leave to the tenant to contest the suit and it is the statutory duty of the court to grant leave so that there should not be illegal eviction of the tenants. The Apex Court and the other High Courts are of the view that the provision should be liberally construed for granting leave to the tenant to contest the suit and it is the statutory duty of the court to grant leave so that there should not be illegal eviction of the tenants. At the same time the Apex Court also held that the only test for granting leave is to see whether the affidavit whereby leave has been sought for discloses any facts which need investigation by adducing evidence in trial. Reference may be made to some of the decisions of the Apex Court, namely, the cases of (i) Precision Steel and engineering Works and another V/s. Prem Deva niranjan Deva Tayal, 1982 (3) SCC 270 , (ii) Smt. Jamna Devi and others V/s. Kude ram and another 1983 (3) SCC 376 , (iii)Om Prakash Saluja V/s. Smt. Saraswati Devi, 1983 (2) SCC 471. It must be borne in mind that provision for obtaining leave to contest the suit had been made to avoid frivolous, baseless or irrelevant plea taken by the defendant-tenant in the suit for eviction. 11. In the light of the settled principle of law laid down by the Supreme Court and various High Courts, the only question falls for consideration in the instant case is whether the facts disclosed in the affidavits filed by the defendants made out a case which, if proved, would disentitle the plaintiff to get the decree for eviction as noticed above. 12. The defendants have not denied the relationship of landlord and tenant. The defendants have also not denied that for the personal necessity the plaintiff decided to demolish the entire construction and make a new construction of shoping complex and residential flats and for that purpose several tenants in occupation of the premises entered into an agreement with the plaintiff and undertook to vacate the premises as and when the plaintiff starts demolition with the assurance of the plaintiff to let out the new shop premises to them on fresh terms and conditions. The only plea taken by these defendants in the affidavits is that the said agreement is not admissible in evidence and that the plaintiffs title has been challenged in a suit which is pending. The only plea taken by these defendants in the affidavits is that the said agreement is not admissible in evidence and that the plaintiffs title has been challenged in a suit which is pending. So far the question that the title of the plaintiff is under challenge in a suit pending against him is concerned, I am of the opinion that the said defence in no way improves the case of the defendants. It is well settled that a tenant cannot question the title of the landlord so long as he is in possession of the premises, when the relationship of landlord and tenant was never disputed by him. The said defence of the defendants taken in the affidavits is nothing but frivolous defence, which has no leg to stand. The only stand of the defendants, therefore, is that on the basis of the agreement no decree for eviction could be passed and the defendants prayer seeking leave ought to have been allowed by the court below. In this connection as I noticed above, several other tenants in occupation of the premises under the plaintiff entered into similar agreement agreeing to vacate the premises for re-construction of shoping complex. The plaintiff on the basis of the said agreement filed several eviction suits which have been decreed by the Court below and the said decree have been confirmed by the High court irt several Civil Revision applications filed by the tenants. It appears that a batch of Civil Revision applications, namely, C. R. Nos.315, 271, 324 and 277 of 1991 (R) have been disposed of by this court in terms of the judgment dated 18-11-1991. Paragraphs-29 and 30 of the said judgment are re-produced hereinbelow : "it is accepted at the bar that the similar agreements were entered into two other persons. From a perusal of Annexure-1 as contained in Annexure-1 to the Civil revision application, it appears that the parties to the said agreement agreed that the tenant shall give vacant possession of the tenanted premises when the plaintiff starts constructing the market complex so that he may construct the same upon demolition of the existing structures. The plaintiff by reason of the said agreement had also agreed that upon construction of the new market and residential complex, one shop and one residential complex (wherever applicable) shall be let out on rent. The plaintiff by reason of the said agreement had also agreed that upon construction of the new market and residential complex, one shop and one residential complex (wherever applicable) shall be let out on rent. " "upon considering the respective cases of the parties and in view of the fact that the plaintiff has categorically stated that he intends to build a shoping-cum-residential complex at any early date in terms of the plan which was marked as Ext.6 either by taking loan from the Bihar State Financial corporation or even by disposing his other properties; I am of the view that these applications should be disposed of on the following terms: (i) Each of the petitioners of all the civil revision applications shall within three weeks from the date of receipt of a notice from the plaintiff intimating them the date from which he intends to take steps for demolition of the existing structures and construction of the shoping/residential complex, shall hand over vacant possession to the plaintiff-opposite party. The plaintiff, however, it goes without saying, would serve such notice only upon getting the building plan sanctioned and upon making arrangement of requisite funds for such purposes. (ii) The plaintiff-opposite party shall let out the premises to the tenants-petitioners who are in respective occupation of the suit premises on the same terms and conditions of the agreements, entered into by and between the plaintiff and his other tenant as may mutatis mutandis be applicable to the petitioners and which are contained in Exts.2 to 2/b. The rent payable in respect of the such premises shall be fixed on the same basis which would be payable by Md. Sharif and said other two tenants with whom the plaintiff had entered into agreement viz. Ext.2 to 2/b. (iii) It is made clear that in the event the petitioners or any of them fail to hand over vacant possession of their respective tenanted premises upon receipt of the notice from the plaintiff and if in such an event the plaintiff has to obtain vacant possession through the process of Court; it would be open to the plaintiff not to let out any portion of the newly constructed shoping/residential complex to them in terms of this order. " 13. " 13. As noticed above from the facts and defence disclosed in the affidavits, I do not find any thing which requires the court to record a finding or to go into the full-fledged trial. I further do not find any facts disclosed by the tenants in the affidavits, which prima facie disentitle the landlord from obtaining the order for recovery of possession. As stated above, the tenant must make out a prima facie case in his affidavit as would disentitle the landlord from obtaining the order of eviction. The impugned order passed by the learned Court below do not suffer from any illegality or infirmity in law or any fact which warrant interference by this Court in exercise of its revisional jurisdiction under Sec.14 (8) of the said Act. However, the learned Court below while passing the impugned orders directing the petitioners to vacate the premises ought to have imposed conditions in the light of the judgment passed by this Court in the cases of other tenants. 14. In the result, the impugned orders passed by the Court below are confirmed and these Civil Revision applications are disposed of on the following terms and conditions: (i) Each of the petitioners of both the civil revision applications shall within three weeks from the date of receipt of a notice from the plaintiff intimating them the date from which he intends to take steps for demolition of the existing structures and construction of the shbping/residential complex, shall hand over vacant possession to the plaintiff-opposite party. The plaintiff, however, it goes without saying, woufd serve such notice only upon getting the building plan sanctioned and upon making arrangement of requisite funds for such purposes. (ii) The plaintiff-opposite party shall let out the premises to the tenants-petitioners who are in respective occupation of the suit premises on the same terms and conditions of the agreements, entered into by and between the plaintiff and his other tenants as may mutatis mutandis be applicable to the petitioners and which are contained in exhibits 2 to 2/b. The rent payable in respect of the such premiss shall be fixed on the same basis which would be payable by Md. Sharif and said other two tenants with whom the plaintiff had entered into agreement viz. Sharif and said other two tenants with whom the plaintiff had entered into agreement viz. Exts.2 to 2/b. (iii) It is made clear that in the event the petitioners or any of them fail to hand over vacant possession of their respective tenanted premises upon receipt of the notice from the plaintiff and if in such an event the plaintiff has to obtain vacant possession through the process of Court, it would be open to the plaintiff not to let out any portion of the newly constructed shoping/residential complex to them in terms of this order. Order Accordingly.