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1998 DIGILAW 344 (PAT)

Uday Narain Tiwary v. Gouri Shankar Jalan

1998-04-28

M.Y.EQBAL

body1998
JUDGMENT M.Y. EQBAL:- This Civil revision application is directed against the order dated 22.7.1997 passed by the Subordinate Judge IV, Motihari in Money Suit No. 80 of 1985, whereby the Court below in purported exercise of jurisdiction under section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act 1982 (For short, 'the Act') allowed the application filed by the plaintiff - opposite party No.1 for striking off the defence of the defendant - petitioner for non-compliance of the order and direction for depositing all the arrears of rent and current rent. 2. The plaintiff-opposite party No.1 tiled the aforesaid money suit against the defendant-petitioner seeking a decree for arrears or rent of Rs.16,450/-and a decree for cost of the suit. In the said suit an application was filed by the plaintiff-opposite party No.1 purported to be a petition under section 15 of the said Act for a direction to the defendant to deposit arrears of rent with effect from 7.12.1983 at the rate of Rs.100/- per month as fixed by the House Rent Controller, Motihari. The said application was opposed by the defendant-petitioner on the ground, inter alia, that the house rent was already paid and remitted by money orders. The court below, however, allowed the said application in terms of the order dated 2.9.1996 and directed the defendant-petitioner to deposit arrears of rent as well as month to month rent. The petitioner's case is that after the said order was passed the petitioner filed an application for review of the said order which was registered, Misc. Case No. 16 of 1996. In the meantime, the plaintiff-opposite party No.1 and tiled a petition on 2.6.19 97 praying therein for not having deposited the arrears of rent as directed by the court. The court below by the impugned order allowed the petition filed by the plaintiff-opposite party No.1 ordred for striking off the defence of the defendant-petitioner. Hence, this Civil revision application. 3. Mr. K.D. Chatterjee, learned Senior Counsel appearing on behalf of he petitioner assailed the impugned order as being illegal and wholly without jurisdiction. The court below by the impugned order allowed the petition filed by the plaintiff-opposite party No.1 ordred for striking off the defence of the defendant-petitioner. Hence, this Civil revision application. 3. Mr. K.D. Chatterjee, learned Senior Counsel appearing on behalf of he petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that Money Suit No. 80 of 1985 tiled by the plaintiff is not a suit for eviction rather it is a simple suit for recovery of arrears of rent and, therefore, the order passed by the court below under section 15 of the said Act itself is patently illegal, the consequential order passed by the court below is illegal and cannot be sustained in the eye of law. 4. On the other hand, learned counsel for the plaintiff-opposite party No.1 submitted that since the defendant-petitioner did not challenge the order for deposit of rent passed under section 15 of the said Act, the petitioner cannot challenge the impugned order on the ground that it is without jurisdiction. Learned counsel them submitted that although Money suit No. 80 of 1985 is not a suit claiming a decree for recovery of possession but the plaintiff has pleaded all the facts which entitled the plaintiff to get a decree for recovery of possession. According to the learned counsel, the court below rightly passed the order striking off the defence of the defendant-petitioner 5. Before appreciating the rival contentions of the parties, it would be useful to look into the provision of section 15 of the said Act which reads as under: "15. According to the learned counsel, the court below rightly passed the order striking off the defence of the defendant-petitioner 5. Before appreciating the rival contentions of the parties, it would be useful to look into the provision of section 15 of the said Act which reads as under: "15. Deposit of rent by tenants ill suit, for ejectments- (1) If, in a suit for recovery of possession of any buildings the tenant contests the suit as regards claim for ejectment, Landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent, both of and after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the next following months, the court shall order the defence against ejectment to be struck off and the tenant to cross - examine the landlord's witnesses. (2) If any proceeding referred to in sub-section (I), there is any dispute as to the person or persons to whom the rent is payable, the court may direct the tenant to deposit in Court the amount payable by him under sub-section (I) and in such case no person shall be entitiled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. (3) If the courts is satisfied that any dispute referred to in sub-section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section (1)." 6, From bare perusal of the aforesaid provisions, it is abundantly clear that this section provides that when the tenant contests the suit for recovery of possession as regards claim for ejectment then the landlord may move an application for payment of month to month rent. On such application being filed, the court after hearing the parties make an order to deposit the rent month to month and the arrears of rent. On such application being filed, the court after hearing the parties make an order to deposit the rent month to month and the arrears of rent. Later part of this section also very specifically provides that if the, tenant fails to deposit arrears of rent or month to month rent within the period fixed, the defence of the defendant - tenant against ejectment shall be struck off and the tenant shall be placed in the same position as if he had not defended the claim of ejectment. I have, therefore, no doubt in my mind that the application under section 15 of the said Act is maintaninable only in such a case where the plaintiff -landlord seeks decree for eviction and recovery of possession and in that suit the defendant contest, the claim of his ejectment. Such an application is not maintainable and no order can be passed for deposit of arrears of rent and/or current rent in a suit brought by the landlord seeking a decree for arrears of rent only. 7. In the instant case, it transpires from the order dated 20.7.1996 passed by the court below in Money Suit No. 80 of 1985, a copy of which has been annexed as Annexure-4 to the revision application, that the plaintiff-landlord besides the aforesaid money suit also filed a suit seeking a decree for eviction being Eviction Suit No.6 of 1984 which was dismissed for non-prosecution. After dismissal of the eviction suit, the plaintiff filed an application in Money Suit No. 80 of 1985 seeking amendment of the plaint by converting the said money suit into an eviction suit. The plaintiff-opposite party No.1 further prayed for adding relief for a decree of eviction on the ground of default, The court below held that the eviction suit was dismissed on 4.8.1988 and after lapse of so many years, the amendment petition was tiled seeking to change the nature of the suit which could not be allowed. From the aforesaid order dated 20.7.1996, it is, therefore clear that Money Suit No. 80 of 1985 is a simple suit for recovery of possession. In my opinion, there-fore order dated 2.9.1996 passed by the court below under section 15 of the said Act directing the dcefendant - petitioner to deposit the arrears of rent is itself illegal and wholly without jurisdiction. Such order which is wholly without jurisdiction cannot have any illgal effect. In my opinion, there-fore order dated 2.9.1996 passed by the court below under section 15 of the said Act directing the dcefendant - petitioner to deposit the arrears of rent is itself illegal and wholly without jurisdiction. Such order which is wholly without jurisdiction cannot have any illgal effect. Consequently, if any illegal order which has no legal effect is not complied then there shall be no punitive effect of such order for its noncompliance. It is rather surprising that although the court below was conscious of the-position that the suit was only for recovery of arrears of rent, even then the court passed the impugned order striking off the defence of the defendant-petitioner as against ejectment and deprived the petitioner from cross-examining the witnesses. In my opinion the court below has committed serious error of law in passing such order. Even assuming that for non-compliance of the order dated 2.9.1996 the court below had jurisdiction to struck off the defence, the said order shall have no legal effect. Since the suit is not for recovery of possession neither the plaintiff is required to lead evidence in proof of the existence of the prounds for eviction nor the defendant-tenant is required to lead evidence in support of his case against ejectment. The court below has further committed serious illegality in depriving the defendant from cross-examining the plaintiff's witnesses. The impugned order, therefore, cannot he sustained in law. 8. In the result, this Civil revision application is allowed and the impugned order passed by the court below is set aside.