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2000 DIGILAW 936 (PAT)

Hemlata v. Satya Narain Kandu

2000-07-31

GURUSHARAN SHARMA

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Judgment Gurusharan Sharma, J. 1. Petitioners are owners of a shop 12 x 8 in dimension situated in New Dak Bunglow Road, Patna. It was part of Holding No. 382-B of Patna Municipal Corporation, which was let out to the opposite party. He defaulted in payment of rent. Title Suit No. 201 of 1983 was filed for defendants eviction on the ground of bona fide requirement, sub-letting and default in payment of rent. 2. The said eviction suit was decreed by this Court on the ground of default in payment of rent. The matter went to the apex Court. Eviction decree passed by this Court was set aside and the landlord was given liberty to initiate fresh proceedings, if permitted under law on any of the grounds, which may be available to them after 12.11.1983. 3. In the meantime, the Rent Controller determined fair rent of the premises @ Rs. 500.00 per month. However, an appeal was filed against the order of Rent Controller and was pending at that time. As such, apex Court directed the tenant to pay a sum of Rs. 750.00 per month with effect from 1.8.1995. The Counsel for the landlady also undertook to withdraw the appeal filed against the order of House Controller before the Collector, Patna. 4. In the meantime, it is alleged that defendant defaulted in payment of rent for the months of June 1995, December 1995 and December, 1997. As such, plaintiffs filed the present suit under Order XXXVII of the Code of Civil Procedure. It was admitted on 10-6-1998 and by order dated 21.7.1998, summons of summary suit under Order XXXVII, Rule 2 of the Code was issued. However, thereafter, the defendant raised question of maintainability of the money suit in question under summary procedure of Order XXXVII of the Code. 5. By impugned order dated 9.4.1999, trial Court held that it was not a fit case to proceed under Order XXXVII, Rules 1 and 2 of the Code of Civil Procedure and general procedure for trial of the suit should have been adopted in the case. 6. It was submitted on behalf of plaintiffs-petitioners that the present suit and nature of the relief claimed therein deserved to be tried as summary suit under the provisions of Order XXXVII Rule 2 of the Code. 6. It was submitted on behalf of plaintiffs-petitioners that the present suit and nature of the relief claimed therein deserved to be tried as summary suit under the provisions of Order XXXVII Rule 2 of the Code. All the conditions necessary for the maintainability of the money suit, in view of Order XXXVII, Rule 1(2)(b)(i) were specified in the, instant suit. 7. It appears that in the present suit the plaintiffs claimed arrears of rent for the month June 1995 at Rs. 500.00 , as fixed by the House Controller and for the months December 1995 and December 1997 @ Rs. 750.00 per month, as fixed by the apex Court with effect from 1.8.1995. 8. The object underlying summary procedure under Order XXXVII is to prevent unreasonable obstruction by the defendant, who has no defence. Applicability of the order has been extended to more classes of suits, instead of its being merely confined to suits for bills of exchange, hinders or promissory notes. The provisions of this order are merely rules of procedure to be applied after the plaint is admitted. They did not alter in any way nature of suit or jurisdiction of Courts. 9. Failure to pay rent gives rise to a cause of action to the landlord to claim rent and that claim should be taken as having arisen, in a case like this, out of the stipulation made in the contract between the parties, and this is an obligation arising under the contract. Unless there is privacy of contract, the landlord cannot enforce that claim against the tenant. 10. In the instant case, admittedly, there is relationship of landlord and tenant between the parties and there is concluded contract to pay monthly rent for the premises in question, which was fixed by the House Controller and continued till July 1995 and thereafter, from 1.8.1995 the apex Court fixed monthly rent thereof. 11. For the aforesaid reasons, I am of the view that claim for arrears of rent aforesaid was covered in Order XXXVII, Rule 1(2)(b)(i). Hence, the suit filed by plaintiffs under Order XXXVII of the Code was maintainable. 12. Accordingly, this Revision application is allowed, the impugned order dated 9.4.1999, passed by trial Court is hereby set aside and the suit is directed to proceed under Order XXXVII of the Code of Civil Procedure. However, there will be no order as to costs. 13. Hence, the suit filed by plaintiffs under Order XXXVII of the Code was maintainable. 12. Accordingly, this Revision application is allowed, the impugned order dated 9.4.1999, passed by trial Court is hereby set aside and the suit is directed to proceed under Order XXXVII of the Code of Civil Procedure. However, there will be no order as to costs. 13. Parties herein undertake to appear before the trial Court on 18-8-2000 and thereafter to co-operate in disposal of the suit at the earliest.