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2007 DIGILAW 1530 (PAT)

Chanaki Sao Alias Chanakia v. Renu Singhaniya

2007-09-18

RAMESH KUMAR DATTA

body2007
Judgment 1. The interlocutory application has been filed by the petitioners for impleading opposite parties 2nd set and 3rd set who were defendant nos. 3 to 6 in the court below. It is submitted that due to oversight, the said persons who were parties in the court below have not been made parties in the revision application. 2. On a consideration of the aforesaid facts and circumstances, it is directed that the said defendants, who have been left out and whose names have been given in paragraph no. 3 of the interlocutory application, shall be added as defendant-opposite party nos. 3 to 6 in the Civil Revision application. 3. I.A. No. 3857 of 2007 is accordingly allowed. 4. Heard learned counsels for the petitioners and the opposite party Nos. 1 and 2. Since the revision application has been filed against the order allowing amendment application of opposite party nos. 1 and 2 to the written statement, there is no necessity to issue notice to and hear the newly added defendants-opposite parties. 5. The plaintiff-petitioners have filed this revision application against the order dated 10.5.2005 passed by Munsif, Lakshisarai in Eviction Suit No. 6 of 2001 by which he has allowed the amendment petition filed under Order 6, Rule 17 of the Code of Civil Procedure by the defendant-opposite parties for adding the rate of rent being paid to the ex-landlord at the rate of Rs. 100/- per month in the written statement since 1962. 6. Learned counsel for the petitioners submits that the said order is without any justification and in the face of clear direction of this Court passed in the earlier civil revision filed by the contesting defendants-opposite parties, i.e., C.R. No. 1132/2004, in which after rejecting that revision application this Court had directed by order dated 28.9.2004 that the court below should take up the hearing on day to day basis and dispose of the suit. 7. It is stated by learned counsel that by order dated 10.4.2002 the petition filed under Section 15 of the BBC Act by the present plaintiff-petitioners was allowed with a direction to the defendant-opposite party nos. 1 and 2 to deposit in Court the arrears of rent from the month of May, 2000 as well as the current rent of the suit premises at the rate of Rs. 1 and 2 to deposit in Court the arrears of rent from the month of May, 2000 as well as the current rent of the suit premises at the rate of Rs. 1000/- per month and on failure to comply with the said order the defence of the defendants was to be struck off. Against the said order, the opposite party filed C.R. No. 731/2002 which was dismissed on 11.11.2003. The opp. parties did not deposit the amount and on the other hand, filed an application under Order 7, Rule 7 CPC which was also dismissed. Against the same they filed C.R. No. 1132/2004 which was dismissed by order dated 28.9.2004 with the direction by this Court to expedite the disposal of the suit as stated above. Thereafter by order dated 10.4.2005, the court below struck off the defence of the petitioners on the ground that the amount had not been deposited as directed by order dated 10.4.2002 and against the same C.R. No. 1860/2004 filed by the opposite parties was also dismissed by this Court on 11.1.2005. 8. Learned counsel for the petitioners submits that the defence of the opposite parties having been struck off it was not open to the court below to have permitted any further amendments with respect to rate of rent in the written statement of the defendants. It is submitted that at no stage earlier the amount of rent being Rs. 1000/-was challenged by the opposite parties either in the court below or in the three civil revisions that had been filed by them earlier. For the first time, an attempt is made to introduce a story of rate of the rent being Rs. 100/- instead of Rs. 1000/-which is not permissible in view of the defence of the defendants having been struck off. It is further submitted that the court below in the said circumstances ought not to have allowed the amendment after orders of striking off the defence had been passed by the court below and upheld by this Court. 9. Learned counsel for the opposite party nos. 1 and 2, on the other hand, supports the said order stating that only the defence with respect to ejectment have been struck off by the order passed under Section 15 of the BBC Act and the issue with respect to title and rate of rent is open to be raised by the petitioners. 1 and 2, on the other hand, supports the said order stating that only the defence with respect to ejectment have been struck off by the order passed under Section 15 of the BBC Act and the issue with respect to title and rate of rent is open to be raised by the petitioners. In support of the same, he relies upon a decision of this Court in the case of Sheolal vs. Anantdeo Mishra, 1986 PLJR 1144. So far as the reliance on the said decision is concerned, it can be of no avail as the said order was passed under the 1947 Act and it has been noted by the Court itself in its order that provisions of the subsequent enactment are not in pari materia with that of the Act of 1947. 10. Learned counsel for the opposite parties also relies upon a decision of a Division Bench of this Court in the case of Sachidanand Singh vs. Smt. Tarawati Mishrain, 1992(2) PLJR 195. He relies upon the observations made in paragraphs 25, 26 and 31 of the judgment which are quoted hereinbelow. "25. There is other reason to hold that the aforesaid words shall not preclude the tenant from cross-examining the plaintiffs witnesses with regard to defences other than his defence against ejectment qua-tenant. 26. If the aforesaid words are interpreted to mean that the tenant is completely stopped from cross-examining the plaintiffs witnesses even with regard to his all defences other than his defence qua-tenant, then that would put the tenant in a complete helpless position and, as a matter of fact, the tenant would be crippled and the decree against him would be inevitable even if he has a good defence on the question of title etc. In my view, such was never the intention of the legislature specially when the main object of the Act is to give protection to the tenant against unreasonable eviction. 31. Coming to the facts of the present case, apart from the decree for eviction and declaration of defendant no. 1 as tenant and defendants no. 2 and 3 as sub-tenants, the plaintiff has also prayed for arrears of rent and electrical charges. 31. Coming to the facts of the present case, apart from the decree for eviction and declaration of defendant no. 1 as tenant and defendants no. 2 and 3 as sub-tenants, the plaintiff has also prayed for arrears of rent and electrical charges. Prayers for arrears of rent and electrical charges in no way are connected with the defence against ejectment qua-tenant and, as such, the defendant is entitled to cross-examine the plaintiffs witnesses on the aforesaid points to show that there was no arrears of rent and electrical dues against him. He is also entitled to adduce evidence in support of his case on these points. The court below acted illegally and with material irregularities in exercise of jurisdiction in disallowing the prayer of the petitioners to adduce evidence and cross-examine the plaintiffs witnesses on the points other than his defence against ejectment qua-tenant." 11. From the aforesaid decision it is evident that the law laid down is that only the defence against ejectment qua-tenant is struck off and it was held by the Division Bench that questions relating to title, etc., can be raised in defence and further it was permissible for the defendant to cross-examine the plaintiffs witnesses on those aspects. The said decision in no way supports the case of the defendants that they can be permitted to amend their written statement with respect to a matter and in the circumstances as exist in the present case. Thus, the said case is of no assistance to the opposite parties. 12. Learned counsel for the opposite parties also relies upon a Division Bench decision of this Court in the case of Sri Ratan Lal Nai vs. The State of Bihar & Ors., 1989 PLJR 1273 . In the said case also it has been held that it is only the defence of the defendants qua-tenant that stands struck off and it is open to the tenant to support a plea that there is no relationship of landlord and tenant between them and moreover he is permitted to take a defence with respect to title. The said case also did not deal with the question of allowing amendment to the written statement by introducing new facts after the defence of the defendant is struck off. 13. The said case also did not deal with the question of allowing amendment to the written statement by introducing new facts after the defence of the defendant is struck off. 13. Lastly, learned counsel for the opposite parties relies upon the case of Champa Lal Sharma vs. Smt. Sumita Maitra, 1989 PLJR 381, in para-40 of which it has been held as follows: "Thus judging the case from all its ramifications, I am of the view, on a proper construction of Section 15 of the said Act it must be held that while defence of a defendant is struck off, the same only means his defence qua-tenant and not his other defences which, if permitted to be raised, would enable him to prove the absence of title in respect of the properties in suit in the plaintiff and/or absence of relationship of landlord and tenant by and between the plaintiff and himself." 14. It is evident that the aforesaid decision is also on the same lines. The findings relating to landlord and tenant relationship as well as title are permitted to be raised by the tenant if the defence has been struck off pursuant to non-compliance of the Order 15 of the BBC Act. None of the aforesaid cases cited by the opposite parties supports the stand that amendments may be made in the written statement regarding the quantum of rent after defence of the defendant is struck off when he has failed to deposit the amount of rent, in the present case Rs. 1000/-, directed to be deposited by him within the time allowed by the Court. In the present matter the petitioner had moved right up to the High Court repeatedly and at no stage any stand was taken that the amount of rent fixed at Rs. 1000/- was wrong and that he was paying a rent of Rs. 100/- only to the previous landlord; having failed in his efforts in three rounds of litigations upto this Court, raising such a new plea that the rent was only Rs. 100/- is wholly impermissible and amounts to changing the very basis of the case and disputing the earlier orders in a round about manner when such a plea has not been taken earlier. 15. 100/- is wholly impermissible and amounts to changing the very basis of the case and disputing the earlier orders in a round about manner when such a plea has not been taken earlier. 15. In the aforesaid facts and circumstances, it must be held that the court below has acted illegally in the exercise of its jurisdiction by allowing the amendment petition of the opposite parties. 16. The revision application is accordingly allowed and the order dated 10.5.2005 passed by the learned Munsif, Lakhisarai is set aside. The Court below is directed to comply with the earlier order of this Court to expedite the trial in the matter and dispose of the same within the shortest possible time.