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2005 DIGILAW 687 (PAT)

Gyandeo Sharma v. Sarnagat Singh

2005-08-03

body2005
ORDER Heard learned counsel for the parties. The petitioner is plaintiff of Title Eviction Suit No. 24 of 2002, which he had filed for eviction of the opposite party on the ground of default in payment of rent by the defendant and personal necessity of the plaintiff. 2. The petitioner is aggrieved by order dated 7.12.2004 passed in the aforesaid suit, by which the learned Subordinate Judge - X, Patna refused to pass any order on the plaintiff's petition for striking out the defence of the defendant - opposite party for non/part compliance of the order of the trial court dated 24.12.2002 passed under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act' for the sake of brevity). 3. The short fact of the case is that the suit was filed in the year 2002 but admittedly rent was due from early period. The specific case of the defendant was that for the months of June and July, 2001 rent was paid through cheque to the plaintiff, who mischievously did not en-cash the same. In the said circumstances, it is quite apparent that the rent was due since June, 2001. 4. it is also an admitted fact that on 17.8.2001 a case was filed by the plaintiff before the House Controller, which was numbered as Case No. 52 of 2001, for enhancement of rent. By order dated 12.11.2001 the House Controller fixed rate of rent at Rs. 10,475/- per month, although the earlier rent was Rs. 5.900/- per month. This fixation of rent was made effective from 17.8.2001, which was the date on which the petition for fixation of rent was filed by the plaintiff. Learned counsel for the defendant - opposite party submits that - an appeal is pending before the Collector against the aforesaid order of the House Controller bearing no. 20/2001-2002. 5. After filing of the suit the plaintiff filed a petition under Section 15 of the Act for a direction to the defendant to deposit the arrears of rent as well as the current rent with effect from June 2000 at the rate of Rs. 15,200/- per month. 20/2001-2002. 5. After filing of the suit the plaintiff filed a petition under Section 15 of the Act for a direction to the defendant to deposit the arrears of rent as well as the current rent with effect from June 2000 at the rate of Rs. 15,200/- per month. The said petition was contested by the defendant, where after by order dated 24.12.2002 the learned Subordinate Judge - X, Patna allowed the said petition and directed the defendant to pay rent with effect from 17.8.2001, which was the date on which the order of the House Controller fixing fair rent was made effective, along with arrears of rent, which were to be deposited within 15 days from the date of that order, whereas the future rent was to be paid by 15th day of the next following month, failing which the defence of the defendant against ejectment was to be struck off. 6. Learned counsel for the petitioner submits that although the defendant deposited rent from 17.8.2001 till date at the rate fixed by the House Controller but he did not pay any arrears of rent prior to 17.8.2001, although it was specifically directed by the learned court below vide the aforesaid order dated 24.12.2002 and hence due to non - compliance of that part of the order the defence of the defendant against ejectment was fit to be struck off. Hence he filed a petition for the same as even according to the admitted case of the defendant rent was due from 01.6.2001 to 16.8.2001. He further submits that the learned court below without considering this aspect of the matter disposed of the plaintiff's petition by the impugned order merely on the ground that it will not be just and proper to decide such matters at the preliminary stage of trial. Hence he submits that the impugned order of the learned court below is illegal, arbitrary and perverse. 7. Hence he submits that the impugned order of the learned court below is illegal, arbitrary and perverse. 7. On the other hand, learned counsel for the defendant - opposite party submits that order dated 24.12.2002 has been challenged and the matter is pending before the Hon'ble Supreme Court in Civil Appeal No. 1850 - 1851 of 2005 and an order had been passed on 17.11.2003 in Special Leave to Appeal (Civil) No. 2057420575/2003 that question to be decided that why a direction for payment of rent at the contractual rate be not substituted for the direction to pay standard rent in view of Section 15 of the Act. However until further orders, the defendant was directed to continue to comply with the impugned order dated 24.12.2002 but the withdrawal of the rent by the plaintiff was confined only to the contractual rate. In the said circumstances, he submits that this matter cannot be decided until the said civil appeal is decided by the Hon'ble Apex Court. He also states that if the order for payment at the contractual rate is passed by the Hon'ble Apex Court, then more than a lac of rupees would become recoverable from the plaintiff. Hence he avers that the learned court below was quite justified in refusing to pass any order at this stage for making the defendant defaulter and for striking off his defence, although he had paid arrears of rent with effect from 17.8.2001 in a lumpsum at the rate of Rs. 10475/- per month and is also going on paying monthly rent as per the specific order of that court dated 24.12.2002. He further submits that there was no specific direction in the order of the court below dated 24.12.2002 with regard to payment of rent from June, 2001 till 16th August, 2001 and the rate on which the said arrears were to be paid and hence non -payment of the said amount was definitely not a violation of that order and on that ground his defence cannot be struck off. 8. 8. After hearing the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the matter pending before the Hon'ble Supreme Court is regarding the question as to whether contractual rate of rent can be substituted by standard rent fixed by the House Controller in view of the specific provision of Section 15 of the Act The said matter is not an issue here specially when the Hon'ble Supreme Court Itself orders that until further orders the petitioner (defendant) shall continue to comply with the impugned order (24.12.2002) but the withdrawal of the rent by the respondent (plaintiff) shall remain confined to the contractual rate. In the said circumstances, the defendant was bound to comply with the order of the learned court below dated 24.12.2002 fully. 9. It is also an admitted fact that the defendant has deposited the entire rent from 17.8.2001 till date in accordance with the order of the court below dated 24.12.2002 and there is no default with respect thereto. But the question arises that whether the rent from 1st June, 2001 to 16.8.2001 was included in the said order dated 24.12.2002. In this connection learned counsel for the petitioner submits that it was very well included in the order, as the rent from 17.8.2001 was directed to be paid along with arrears of rent and the arrears of rent apart from rent due from 17.8.2001 was the only rent since June, 2001, which admittedly was never received by the plaintiff. On the other hand, learned counsel for the defendant submits that since it has not been specifically mentioned with the dates and the rate at which it was to be paid, the defendant did not pay the same, specially when the rent fixed by the House Controller was not effective for that period. 10. After hearing the learned counsel for the parties and after perusal of tile materials on record, it is quite apparent that the aforesaid questions by the parties were to be decided by the learned court below, which had passed its earlier order dated 24.12.2002 and even if some additional materials were required for adjudication of that issue, the parties should have produced the same. The matter is simply to be decided whether the defendant was to pay rent from 1.6.2001 to 16.8.2001 as per the impugned order and if yes at what rate. The matter is simply to be decided whether the defendant was to pay rent from 1.6.2001 to 16.8.2001 as per the impugned order and if yes at what rate. The learned court below was also to decide that if the said amount was to be paid whether the default made by the defendant was intentional, which could attract striking off the defendant's defence against ejectment. These questions not having been decided by the learned court below by the impugned order, the said order is set aside and the matter is remitted to the learned court below for fresh consideration in accordance with the materials on record, provisions of law as well as the aforesaid directions. The learned court below will consider all the questions of law raised by the parties. With the aforesaid directions this civil revision is allowed.