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2002 DIGILAW 219 (PAT)

S. M. Shoaib v. Kamla Devi Motani

2002-02-13

S.K.KATRIAR

body2002
Judgment 1. Heard learned counsel for the appellant and the respondents. The defendant is the appellant against the judgment of affirmance. This appeal is directed against the judgment and decree dated 12.10.2001, passed by the leaned 1st. Addl. District Judge, West Champaran, Bettiah, in Title Appeal no. 57/98 (S.M.Shoaib V/s. Smt. Kamla Devi Motani), whereby he dismissed the defendants appeal and upheld the judgment and decree dated 6.7.1998, passed by the learned Munsif, Bettiah, in Title Eviction Suit No. 159/94 (Smt. Kamala Devi Motani V/s. S.M. Shoaib). The trial court by his judgment has decreed the suit and ordered for eviction of the defendant from the suit premises on the ground of default in payment of rent. We shall go by the description of the parties in the plaint. 2. The original plaintiff (Munnalal Motani) had instituted a suit for eviction of the defendant from the suit premises. The original plaintiff died during the pendency of the suit and was substituted by his widow and the son. According to the plaint, the plaintiff had let out the suit premises to the defendant for commercial purposes on a monthly rental of Rs. 400/- per month. The defendant defaulted in payment of rent from June 1989 to July, 1994, as a result of which the plaintiff instituted the eviction suit. During the pendency of the suit, the defendant filed an application under section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter referred to as the Act) for deposit of the rent which was allowed by order dated 17.5.95, and it was ordered that the defendant may deposit at the rate of Rs. 2000/- per month provisionally until further orders of this Court. The defendant did not deposit the sum at all, as a result of which his defence was struck off in terms of section 15 of the Act by order dated 29.6.1998. Thereafter the defendant filed an application for amendment of the written statement to the effect that the suit premises consisted of two shops and he had been evicted from one of them during the pendency of the suit. The said application for amendment of the written statement was rejected by. the learned trial court by his order dated 26.6.96, and was upheld by order dated 27.9.96 passed in civil revision no. 1207 of 1996. As stated hereinabove, the suit was decreed by judgment dated 6.7.1998. The said application for amendment of the written statement was rejected by. the learned trial court by his order dated 26.6.96, and was upheld by order dated 27.9.96 passed in civil revision no. 1207 of 1996. As stated hereinabove, the suit was decreed by judgment dated 6.7.1998. The trial court held that there was default in payment of rent from June 1989 to July 1994, and decreed the suit for eviction and arrears of rent for three years prior to the institution of the suit. He futher held that the defendant had defaulted in deposit of the current rent in terms of the order dated 17.5.1995. 3. During the pendency of the appeal, the defendant raised the issue of rate of rent which was rejected by the learned Addl. District Judge, Ist Court, Bettiah, by order dated 22.3.99. The defendant challenged the same by preferring civil revision no. 457/1999 which was rejected by a learned Single Judge of this Court by order dated 7.4.99 wherein it was in substance held that it will be open to the defendant to raise these issues in appeal. Noticing the fact that the appeal was ready for disposal, the lower appellate court was directed to dispose of the appeal within three months. The period of three months was to expire on 6.7.1999, on which date the defendant filed an application under Order 41, Rule 27 CPC, praying therein to bring additional evidence on record. The same was rejected by the learned court of appeal below by his order dated 6.8.99. The defendant challenged the same in this Court by preferring civil revision no. 1812 of 1999, which was rejected by order dated 8.10.99. The defendant preferred civil appeal no. 1359 of 2001 before the Supreme Court, which was disposed of by the order dated 19.2.2001, which is set out for the facility of quick reference: "Heard learned counsel for the parties. Leave granted. Considering the facts and circumstances of this case, we direct the Ist. The defendant preferred civil appeal no. 1359 of 2001 before the Supreme Court, which was disposed of by the order dated 19.2.2001, which is set out for the facility of quick reference: "Heard learned counsel for the parties. Leave granted. Considering the facts and circumstances of this case, we direct the Ist. Additional District Judge, West Champaran, at Bettiah, before whom Title Appeal No. 57 of 1998 is pending, to consider the application of the petitioner afresh herein for production of additional documents at the time of hearing of the said appeal learned counsel for the respondents submits that if the petitioner produces such additional documents he would not object to the same, but it would be for the court to decide whether the said documents can be produced under Order 41, Rule 27 of the Code of Civil Procedure. Learned counsel for the petitioner further submits that the petitioner or his counterpart would not ask for any adjournment of the appeal on any ground, includingthe ground of sickness or strike by the Advocates. The appeal is disposed of accordingly." 4. Pursuant to the order of the Supreme Court, the parties were engaged in disposal of the issue of additional evidence before the court of appeal below which was after due consideration rejected by order dated 28.5.2001. Feeling dissatisfied with this order, the defendant preferred civil revision no. 1100 of 2001 in this Court which, according to the defendant (appellant) remains pending. The defendant did not take any interest in the Civil revision application and in view of the position that no stay order was passed the appellate court proceeded to dispose of the appeal by the impugned judgment whereby he has dismissed the appeal and upheld the findings of facts recorded by the trial court. In other words, he has held that the defendant was inducted as a tenant on a monthly rental of Rs. 400/- per month. The defendant had defaulted in payment of rent for the period from June 1989 to July 1994, and has thereby rendered himself liable for eviction on the ground of default in payment of rent in terms of section 11 (1) (d) of the Act and the defendant is liable to pay the arrears of rent for a period of three years prior to institution of the suit. He has further held that the defendant failed to deposit the current rent in terms of the order of the trial court dated 17.5.95, and, therefore the trial court was right in passing the order dated 29.6.1998, whereby the defence of the defendant in terms of section 15 of the Act was struck off. Hence the present appeal at the instance of the defendant. 5. While assailing the validity of the impugned judgment, learned counsel for the defendant (appellant) submits that the findings of the learned court of appeal below striking off the defence is based on error of the record. He next submits that in view of the remand order passed by the Supreme Court, the learned court of appeal below was duty-bound to consider the defendants plea of additional evidence. He lastly submits that the lower appellate court ought to have waited for the outcome of the civil revision application. 6. Learned counsel for the plaintiffs (respondents herein) submits in support of the impugned judgment that the issues are concluded by concurrent findings of facts which bind this Court in second appellate jurisdiction. He submits that the defendant has before this Court raised issues of facts only and no question of law, much less a substantial question of law, has been convassed in support of this appeal. He lastly submits that it is manifest from the record that the defendant has been adopting delaying tactics. 7. Having considered the rival submissions I am of the view that this appeal is fit to be rejected. Learned counsel for the plaintiffs is right in his submission that the issues are concluded by concurrent findings of facts which bind this court in second appellate jurisdiction. Both the courts below have concurrently found that the defendant had defaulted in payment of rent from June 1989 to July 1994. Both the courts below have equally found that the defendant failed to deposit the arrears of rent as well as the current rent in terms of the order dated 17.5.1995, and, therefore, the learned trial court had rightly struck off the defence of the defendant in terms of section 15 of the Act by his order dated 29.6.1998. In view of the concurrent findings, it is no longer open to the defendant to set up a case qua tenant after his defence was struck off. In view of the concurrent findings, it is no longer open to the defendant to set up a case qua tenant after his defence was struck off. It was open to him to set up title adverse to the plaintiffs. No such case is discernible in the written statement or, at any rate, propounded before the Courts below and surely not before me. Learned counsel for the plaintiffs is further right in his submission that pursuant to the order passed by the Supreme Court with respect to the question of bringing additional evidence at the instance of the defendant, the learned court of appeal below considered the same and by a reasoned order rejected the defendants application under Order 41, Rule 27 by his order dated 28.5.2001. He has on a consideration of the entire matter before him come to the conclusion that the documents sought to be brought on record by way of additional evidence are not covered by the terms of Order 41, Rule 21. I have myself examined the same and agree with the order. It is further manifest from the records that the defendant has throughout engaged himself in delaying tactics to delay the disposal of the suit and the appeal. 8. In the result, the appeal fails and is dismissed with costs throughout.