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1997 DIGILAW 817 (PAT)

Sachchidanand Shukla v. Sudha Sinha

1997-11-19

S.N.JHA

body1997
JUDGMENT S.N. Jha, J. - This civil revision by defendant no. 1 is directed against order dated 27.5.97 passed by the Munsif Sadar, Motihari, in Eviction Suit No. 3 of 1997 rejecting his petition/affidavit seeking leave to contest the suit. 2. Section 14(4) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (in short, the Act) requires the tenant to obtain leave to contest the suit where the suit is brought for eviction on the ground of either personal necessity or expiry of the period of tenancy, specified in Clause (c) or (e) of sub-section(1) of Section 11 of the Act. 3. Mr. Rajendra Narayan, learned counsel for the petitioner, submitted that the suit has been brought not only on the ground of personal necessity but also on the grounds of causing material damage to the condition of the building and default, as specified in Clauses (b) and (d) of Section 11 (1) and, therefore, the same must be held to be a composite suit triable according to the general procedure for trial of suits and not according to the provisions of Section 14 of the Act. He referred to the averments made in paragraphs 12, 13 and 14 of the plaint. In any view, it was alternatively submitted, even if it is held that the suit is triable according to the special procedure as laid down under Section 14 of the Act, the court below committed error in refusing to grant the leave under an impression that such leave is to be sought on the very first day of appearance. 4. Mr. Bipin Bihari Sinha, learned counsel for the plaintiffs-opposite party, submitted that on 19.3.97 the court below had passed an order debarring the petitioner from contesting the suit, which was not challenged by him. The prayer for leave contained in the petition/affidavit filed later on 2.4.97 was therefore completely misconceived, and the court below rightly refused to recall its previous order and grant leave. 5. After perusing the copy of the plaint marked annexure-1 to the revision petition, prima facie, I am inclined to agree with the counsel for the petitioner that the plaintiffs-opposite party has sought eviction on the grounds of personal necessity as well as causing material damage to the building and default. 5. After perusing the copy of the plaint marked annexure-1 to the revision petition, prima facie, I am inclined to agree with the counsel for the petitioner that the plaintiffs-opposite party has sought eviction on the grounds of personal necessity as well as causing material damage to the building and default. Section 14(1) of the Act provides, "Every suit by a landlord for the recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of Section 11 shall be dealt with in accordance with the procedure specified in this section". Clause (c) of sub-section (1) of Section 11 contains the ground of personal necessity while clause (e) contains the ground of expiry of the period of tenancy. In terms of Section 11 of the Act it is open to the landlord to seek eviction of the tenant "on one or more" of the grounds set out in clause (a) to clause (f) of the section. However, I do not want to detain myself on this question and record my concluded opinion, for the point does not appear to have been agitated in the court below. I propose to consider the correctness only of the order refusing to grant leave to contest assuming that the suit is covered by the provisions of Section 14 of the Act. 6. At this stage, it would be useful to quote sub-section (4) as also sub-sections (5) and (6) of Section 14 as hereunder : "Sub-section (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 appearance 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. Sub-section (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 for eviction on the grounds specified in clauses (c) and (e) of sub-section (1) of Section 11. Sub-section (6) : When leave is granted to the tenant to contest the suit, the latter may, within fifteen days from the date of the order, pray after filing the requisite Court fee, required for a written statement that the affidavit may be treated as the written statement or if he chooses to file a separate written statement he may do so within fifteen days of the grant of leave to contest the suit and if he does not file the written statement within the period he shall not be allowed to do so later. The Court shall thereafter commence the hearing of the suit as early as practicable. 7. The point as to whether the petition/affidavit seeking leave to contest is to be filed later also within reasonable period is not res integra. In a very illuminating judgment, if I may say so with respect, S.K. Jha, J. (as he then was) while considering the question in Rajendra Mahto Vs. Hari Narayan Mahto, 1989 PLJR 489 observed (at page 490 of the report) : "Section 14(4) mandates that the tenant, on whom the summon is duly served, shall not contest the prayer for eviction from the premises unless he files an affidavit . . . . . and obtains leave from the Court as hereinafter provided. All that the Statute in express term stipulates is that the tenant shall be deemed to have accepted the claim of the landlord and would be liable to eviction (if he does not obtain leave). There is a great difference between the words 'unless' and ‘simultaneously'. All that the Statute contemplates is that before the tenant is entitled to file written statement he must file an affidavit stating the ground for contesting the eviction and he must obtain leave from the Court to contest the suit. That is a pre-requisite. But it does not mean that in point of time it must be co-related with the time of the very moment of the appearance of the tenant-defendant. That is a pre-requisite. But it does not mean that in point of time it must be co-related with the time of the very moment of the appearance of the tenant-defendant. Filing of the affidavit and obtaining leave from the Court must precede the filing of the written statement and. contesting the suit and not that these two conditions must be fulfilled simultaneously on the very first day of appearance of the tenant-defendant. Taking any contrary view of the matter would be doing violence to the language of the legislature." The learned Judge further observed at page 491 of the Report that there was no limitation prescribed for filing of the affidavit or obtaining leave from the Court. The learned Judge noticed the decision in the case of Ajit Kumar Sinha Vs. Anil Kumar Yadav, 1984 PLJR 904 : 1985 BBCJ 113 wherein this Court had held that the Court has power to extend the time for filing the written statement after leave to contest the suit is granted and observed : "If the Court has power to extend the period of filing the written statement it has as much power to extend the time for filing the affidavit and obtaining the leave of the Court." 8. I may observe that there is nothing in the Provincial Small Cause Courts Act, 1887, which is made applicable, by necessary implication, by sub-section (7) of Section 14, to suggest that the written statement should be filed on the very first day of appearance. There may be genuine and bonafide difficulties for the tenant defendant to file the written statement on the day he appears in the suit and it would be highly unreasonable and unjust to deprive him of right to contest the suit merely because he fails to file the written statement on the first day of his appearance on any such genuine ground. 9. Counsel for the opposite party placed reliance on Karabin Baptist alias Cherebic Baptist vs. Gauri Shanker Prasad, 1993(1) PLJR 495 . In paragraph-6 of the judgment learned Judge observed, "from perusal of sub section (4) of Section 14 of the BBC Act itself it is obvious that in a case where the suit is filed on the ground of personal necessity the defendant is required to file affidavit disclosing the grounds of contest and obtain leave of the Court on the date of appearance itself". I regret my inability to agree with this interpretation of sub-section (4) of Section 14. There is nothing in the said section to suggest that affidavit seeking leave to contest should be filed on the very first day of appearance. In the ordinary course I might have considered the desirability of referring the matter to a Division Bench. However, in view of the earlier decision in the case of Rajendra Mahto Vs. Hari Narayan Mahto (supra) I am saved from the embarrassment of taking, sitting singly, a different view. It is obvious that the decision in the case of Rajendra Mahto Vs. Hari Narayan Mahto was not brought to the notice of the learned Judge. It is settled rule of practice and precedent that where a contrary view is taken by a co-ordinate Bench without noticing the previous decision on the point, the latter decision is not to be taken as precedent on the point. 10. Before I advert to the factual aspect of the present case, I would like to observe that having regard to the spirit and object underlying the provision of Section 14 of the Act, even though the Court has power to extend the period for filing the affidavit, it would be well advised not to give unreasonable time to tenant-defendant to do so, like ordinary title suits or partition suits. No doubt, no hard and fast rule can be laid down in this regard. What should be the reasonable time will depend on the facts and circumstances of the case. If, however, the Court finds that the defendant is adopting a dilatory attitude and postponing filing of the affidavit to stall the proceedings, it is open to it to reject the petition for time, if filed, and proceed with the trial of the suit, treating it to be default on the part of the tenant to obtain leave within the meaning of sub-section (4) of Section 14 of the Act. 11. In the present case, the facts are that on 6.3.97 the petitioner appeared in the suit and filed petition for time. The suit was adjourned to 19.3.97 on the ground that the Presiding Officer of the court was on leave. On 19.3.97 the petitioner again filed petition for time. The court under the impression that he has not filed affidavit as required under Section 14(4), passed an order debarring him from contesting the suit. The suit was adjourned to 19.3.97 on the ground that the Presiding Officer of the court was on leave. On 19.3.97 the petitioner again filed petition for time. The court under the impression that he has not filed affidavit as required under Section 14(4), passed an order debarring him from contesting the suit. The suit, however, was adjourned to 2.4.97 awaiting the appearance of other defendants. On 2.4.97 the petitioner filed the affidavit seeking leave to contest as required under Section 14(4). The impugned order dated 27.5.97 has been passed on the said petition. It is true that an order debarring the petitioner from contesting the suit had been passed on 19.3.97, which has not been separately challenged by the petitioner. It is, however, obvious that the said order was passed under a wholly erroneous interpretation of law and it would not be in the ends of justice if interference in the matter is refused on the technical ground. It hardly need be said that Section 115 of the Code of Civil Procedure confers suo motu powers to "make such order as it thinks fit", if subordinate court has acted, in exercise of its jurisdiction illegally or with material irregularity or failed to exercise the jurisdiction vested in it by law. Both these grounds are made out in this case. 12. In the above premises, the impugned order dated 27.5.97 is set aside. The order dated 19.3.97 is also set aside. The court below is directed to consider the petition/affidavit seeking leave to contest the suit on merit in case it comes to a conclusion, after hearing the parties, that the suit is triable according to the special procedure laid down in Section 14 of the Act. 13. This civil revision stands allowed in the above terms. There will be no order as to cost.