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2007 DIGILAW 1363 (PAT)

Ram Chandra Prasad v. Pramod Kumar

2007-08-17

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties, 2. This revision application has been filed against the order dated 29.4.2005 passed in Eviction Suit No. 1 of 2004 by which the application of the petitioner under Sec. 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 has been disposed of with the observation that after the evidence of both the sides at the time of hearing the court will pass order under Sec. 15 of the Act. 3. The aforesaid Eviction Suit was filed by the plaintiff-petitioner claiming eviction of the defendant-opposite party on the ground of default in payment of rent and also on personal necessity. Immediately, thereafter the petitioner had filed an applicattion under Sec. 15 of the BBC Act for a direction upon the defendant-opposite party to pay month to month rent as also arrears of rent amounting to Rs. 59,060/-. The said application was opposed by the other side on the ground that an amount of Rs. 2,00,000/- was spent by the defendant-opposite party-tenant for the repair and reconstruction of the building on the basis of an unregistered agreement between the parties and as the said amount of advance of Rs. 2,00,000/- was not returned by the plaintiff-landlord, there was no question of making any payment of any arrear or any further rent. 4. On a consideration of the aforesaid defence the Court below came to the conclusion that there being dispute regarding the amount of rent due, hence it would not be proper to pass any order at that stage and after the evidence of both the sides at the time of hearing the order would be passed under Sec. 15 of the BBC Act and the application under Sec. 15 of the BBC Act was accordingly disposed of. 5. Learned counsel for the petitioner submits that the court below by passing the said order has failed to excercise jurisdiction vested in it by law and thus, this Court ought to interfere in its revisional jurisdiction against the said order. 5. Learned counsel for the petitioner submits that the court below by passing the said order has failed to excercise jurisdiction vested in it by law and thus, this Court ought to interfere in its revisional jurisdiction against the said order. It is submitted that under Sec. 15 of the BBC Act, it is incumbent upon the Court to pass an order in favour of the landlord once the relationship of landlord and tenant is prima facie established since it is not open to the tenant to continue in the premises without paying arrears of rent and current rent during the pendency of the suit proceedings. It is thus, submitted that the court below could not have postponed the matter at the stage of final argument because the said step of the court defeats the very purpose of Sec. 15 of the Act which clearly provides that if the arrears of rent and current rent as ordered by the court are not deposited within the time prescribed then the Court shall be free to order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further, the Court shall not allow the tenant to cross-examine the landlords witnesses, it is submitted by the learned counsel that the court has virtually allowed the opposite party-tenant to contest the whole suit and disagreed with the claim of the landlord to get an order under Sec. 15 of the Act without his witnesses being cross-examined and the defence of the tenant being taken into consideration. It is further submitted by the learned counsel that no reliance could have been placed by the court below on the written agreement which is not a registered document and preceding which there was a registered lease deed between the parties and further admittedly even if there is so-called written agreement the tenant had admittedly continued to pay the amount of rent for several years thereafter the details of which are given in Annexure-9 of this application also and which are not denied. The said amounts were deposited directly in the Bank by tenant as per the registered agreement itself. 6. In support of the aforesaid proposition learned counsel relies upon various decisions of this Court. The first case cited is the case of Kashi Kant Jha & Ors. The said amounts were deposited directly in the Bank by tenant as per the registered agreement itself. 6. In support of the aforesaid proposition learned counsel relies upon various decisions of this Court. The first case cited is the case of Kashi Kant Jha & Ors. vs. Bhola Prasad: 2004(2) PUR 132, in which in para-2 this Court has held as follows: "The issue relates to Sec. 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982. The very purpose of Sec. 15 requiring deposit of rent by a tenant failing which the defence will not be entertained, and keeping the issue alive until final hearing defeats the intention of the Legislature. If rent is due the law requires its deposit subject to whatever order may be passed in the suit ultimately. In so far as rent due is concerned, it also includes time barred rent, such is the law. The fact that rent is to be deposited is to mitigate further damages. Thus, the expression of the Court below that if rent was required to be deposited, the Courts mind will be opened is a manifest error. It is entirely up to the tenant to comply with the intention of Sec. 15 or face the consequences of law if the deposit is not made." 7. Learned counsel next relies upon a decision of this Court in the case of Binay Kumar Poddar vs. Bhamar Lal Maharaj & Anr.: 1997(1) PLJR 789, in para-4 of which it has been held as follow: "For the reasons aforesaid, the civil revision application is allowed and the impugned order dated 21.8.95 passed in Title Suit No. 2/93 is set aside. The learned Munsif is directed to pass a fresh order after recording the prima facie finding with regard to the existence of relationship of landlord and tenant and the rate of rent last paid by the defendants to the plaintiff-petitioner. It is made clear that an application under Sec. 15 of the Act cannot be rejected on the ground that the defendants are poor persons or poor Brahmins. If a prima facie case of relationship of landlord and tenant is established, then the court below has no option but to pass an order in the manner provided under Sec. 15 of the said Act. This civil revision application is, thus, disposed of with the aforementioned directions and observations." 8. If a prima facie case of relationship of landlord and tenant is established, then the court below has no option but to pass an order in the manner provided under Sec. 15 of the said Act. This civil revision application is, thus, disposed of with the aforementioned directions and observations." 8. Learned counsel also relies upon the case of Bhimsen Gupta vs. Bishwanath Prasad Gupta: 2003(4) PLJR 462 , in para-11 of which it has been laid down as follows: "Learned counsel for the plaintiff has rightly submitted that the provisions for payment of rent during the pendency of the suit under Sec. 15 of the Act is a protection to the landlord to ensure that he continues to get rent during the pendency of the suit because the tenant during this period becomes statutory tenant and, therefore, he should not continue to be in occupation of the premises without payment of rent, and has nothing to do with the grounds of eviction." 9. It is dear from the aforesaid decisions that an application under Sec. 15 of the Act cannot be rejected after a prima facie case of relationship of landlord and tenant is established and under the said circumstances, the trial court has no option but to pass an order in the manner provided under the said Act. Not to do so clearly impinges upon valuable rights of the plaintiff-landlord to receive the rent during the pendency of the matter. The said Sec. 15 also provides serious consequences on the failure of the tenant to deposit the rent and arrear of rent as ordered by the trial court since the defence of the defendant can be struck off and he would not be permitted to cross-examine the witnesses of the plaintiff-landlord in the case. In the said circumstances, if the order is not passed at the outset or at any time while the suit is in progress when the application is filed by the plaintiff, then it amounts to denial of valuable rights of the plaintiff. Hence, the order postponing the decision on the issue clearly amounts to non-exercise of jurisdiction vested in the trial court. 10. Hence, the order postponing the decision on the issue clearly amounts to non-exercise of jurisdiction vested in the trial court. 10. Learned counsel on the point that the trial court cannot take any notice of an unregistered document for the purpose of arriving at the terms and conditions of the lease, relies upon a decision of this Court in the case of Dr. M. Ata Karim & Anr. V/s. Modern Academy through its Principal and Another, 1987 PLJR 60, in para-6 of which it has been held as follows: "The parties may also urge that unregistered document of lease cannot be relied upon for proving the breach." 11. Learned counsel for the opposite party, on the other hand, submits that the court below has not decided anything by the impugned order and thus, the said order cannot be considered to be a case decided under Sec. 115 of the Code of Civil Procedure and no revision would lie against it. It is further submitted that the matter has not been finally disposed of by the court below but it has merely been postponed for taking evidence and there- after the issue will be decided. Learned counsel states that the amount of Rs. 2 lakhs had been spent by the tenant-opposite party on the basis of written agreement between the parties and thus, it is a relevant document to be taken into consideration for the purpose of passing an order under Sec. 15 of the Act and the Court below has rightly postponed the matter for deciding the same after taking some evidence. 12. From a consideration of the aforesaid submissions this Court is of the view that learned counsel for the opposite party is not correctly interpreting the orders that are being passed. It is not an order that the matter will be decided after taking some evidence rather the order clearly states that the order under Sec. 15 would be passed after the evidence of the parties had been taken at the time of final hearing of the matter. In such circumstances, the only conclusion can be that the valuable rights of the plaintiff-landlord would stand completely defeated in view of the said order passed by the court below. 13. In such circumstances, the only conclusion can be that the valuable rights of the plaintiff-landlord would stand completely defeated in view of the said order passed by the court below. 13. There can hardly be any doubt that Sec. 15 as laid down by this Court in the judgments cited above confers valuable right upon the landlord to continue to receive rent and arrears subject to law of limitation during the pendency of the suit. By not passing the order the court below has, as a matter of fact, finally decided upon the right of the landlord under Section 15 of the Act. That being the position, it is not open to the learned counsel for the opposite party to argue that the order does not amount to a case decided. In this regard, learned counsel for the opposite party relied upon a decision in the case of Ramgulam Choudhary and Others V/s. Nawin Choudhary and Others, AIR 1972 Pat 499 , which does not support his stand rather it goes against him. In the said case in para-6 of the said decision it has been clearly stated that where there is adjudication of any right or obligation of the parties in controversy then the same must be treated as a case decided. Sec. 15 clearly provides specific right to the landlord to receive the arrear of rent and current rent during the pendency of the proceedings and also imposes an obligation upon the tenant to pay the same and on failure to do so, the defence of the tenant is struck off and he is not permitted to cross-examine the landlords witnesses. Thus, postponing the decision on Sec. 15 to the stage of final hearing of the matter clearly defeats the rights of the landlord and absolves the tenant of his obligations under the BBC Act. In the said view of the matter, such an order as the present one, would clearly be a case decided and it would be open for this Court to entertain a revision application against any such order. 14. In the aforesaid facts and circumstances, this revision application is allowed. The impugned order dated 29.4.2005 is set aside and the matter is remanded to the court below to consider the application under Sec. 15 of the Act in accordance with law and in the light of the observations made above.