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2004 DIGILAW 474 (JHR)

Ramesh Kumar Singh v. Shailendra Narayan Acharya

2004-04-30

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balasubramanyan, C.J. 1. This is a revision filed by the defendant under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act"). 2. The plaintiff, the landlord of a building, sued the defendant invoking Section 11(1)(e) of the Act. The case of the plaintiff was that on 6.8.1997, an agreement of lease for a term of 11 months was executed reserving a monthly rent of Rs. 3,000/-. The lease was for a fixed term. On expiry of the term, on oral request, the defendant refused to vacate the building. A notice dated 8.8.1998, was sent calling upon him to vacate and the defendant, having not vacated, the suit was filed. 3. It appears that the defendant was not paying the current rent of a portions of the rent that was in arrears. Therefore, on 30.6.2000, the Court passed an order calling upon the defendant to pay the arrears of rent. The amount was not paid within the time originally fixed. The Court extended the time on more than three occasions. Ultimately finding that the defendant was not complying with the order dated 30.6.2000, the Court struck off the defence of the defendant on 26.9.2000. It proceeded to record the evidence of the defendant on 26.9.2000. It proceeded to record the evidence of the landlord as PW 1. It did not permit the defendant to cross- examine the witness since the defence has been struck off. It proceeded to order eviction on finding that the term of lease had expired it is this decree that challenged in this revision in view of the fact that Section 14(8) of the Act precludes the filing of an appeal against such a decree and provides only for a revision. 4. Learned counsel for the tenant-petitioner contended that there was no formal order in terms of Section 15 of the Act directing the defendant to deposit the rent in arrears and there was also no specific finding on the quantum of rent in arrears. But on scrutinizing the proceedings of the trial Court, it is clear that at no point of time, a dispute was raised on behalf of the defendant that the rent was not in arrears. In fact, it is seen that no objection was even filed to the application under Section 15 of the Act filed by the plaintiff. But on scrutinizing the proceedings of the trial Court, it is clear that at no point of time, a dispute was raised on behalf of the defendant that the rent was not in arrears. In fact, it is seen that no objection was even filed to the application under Section 15 of the Act filed by the plaintiff. In that context, an order was made on 30.6.2000, directing the defendant to pay the rent in arrears. On the materials available, I find no infirmity in that order. There is also no dispute that subsequent to the order dated 30.6.2000, the rent in arrears was not tendered or paid. Therefore, it is seen that on 26.9.2000, the Trial Court struck out the defence of the defendant. It appears to me that the Court below had given ample opportunities to the defendant to pay the rent in arrears and to properly defend the proceeding. The defendant, in my view, had failed to take advantage of such an opportunity and it is not open to him now to contend that no proper procedure was followed by the trial Court. 5. Learned counsel then contended that the Court could have permitted the defendant to cross-examine the plaintiff who was examined as PW 1. Counsel relied on a decision of the Supreme Court in Modula India v. Kamakshya Singh Deo, (1988) 4 Supreme Court Cases 619, in support. But on going through the said decision, it is seen that the Supreme Court has held that the Court has the discretion to permit the witnesses to be cross-examined, notwithstanding the fact that the defence had been struck off. There is not absolute right in the defendant to cross-examine a witness examined on the side of the plaintiff. Moreover the other decision relied upon by learned counsel, Sachidanand Singh v. Smt. Tarawati Mishrain, 1992 (2) PLJR 195, indicated in paragraphs 23 and 24 the consequences of the striking off the defence. The consequence is that, once the defence is struck off, the defendant is precluded from raising any contest on please available to him qua a tenant. He also loses his right to cross-examine the witnesses. The only exception is to a defence which is raised by the defendant not qua-tenant like a plea of absence of title in the plaintiff. The consequence is that, once the defence is struck off, the defendant is precluded from raising any contest on please available to him qua a tenant. He also loses his right to cross-examine the witnesses. The only exception is to a defence which is raised by the defendant not qua-tenant like a plea of absence of title in the plaintiff. Therefore, it is clear that the Court below has properly understood the law laid down by the Patna High Court which was binding it and has acted properly in refusing permission to the defendant to cross-examine the witnesses. I see no reason to interfere with the to order on that score. 6. Learned counsel then contended that since the claim for eviction was under Section 11(e) of the Act, it behoved the Court to consider whether the ground has been made out. Merely because the defence is struck off, a decree cannot automatically follow. This part of the case is sought to be supported by the decision of the Patna High Court referred to by me earlier. But in this case, it is clear that the lease was for a term of 11 months and it did not provide for payment of yearly rent. Therefore going by Section 16(1)(d) of the Registration Act, the document did not required registration. It also did not require to be in terms of Section 197(1) of the Transfer of Property Act, 1882. No doubt Section 107 says that a lease of immovable property for a term not exceeding one year or not reserving a yearly rent can be made either by an oral agreement accompanied by delivery of possession or by a registered instrument. But that does not mean that the deed of lease which is not required to be registered in terms of Section 16 of the Registration Act being one for a period of 11 months, has to be held to be invalid. Therefore, nothing turns on the argument that the document was not admissible in evidence assuming that such a defence can be raised by the defendant in spite of his defence being struck off. In my view, such a defence would be a defence qua tenant. 7. On going through the document of lease entered into between the parties, it is clear that it was a lease for a term of 11 months. In my view, such a defence would be a defence qua tenant. 7. On going through the document of lease entered into between the parties, it is clear that it was a lease for a term of 11 months. There is no case of any payment and acceptance of rent subsequent to the expiry of the period. Nor is it shown that there was any consensus ad idem for continuance of a relationship of landlord and tenant. The notice was given by the landlord immediately after the expiry of the, term and the proceeding for eviction was also initiated with reasonable expedition. In that situation, there is no scope invoking the theory of any tenancy by holding over as sought to be contended by counsel for the petitioner. I am satisfied that the lease was for a fixed term and the plaintiff-landlord has clearly satisfied the requirement of Section 11(1)(e) of the Act. Consequently, I am satisfied that the decree for eviction is justified. 8. I confirm the decree for eviction and dismiss the revision. There will be no order as to costs.