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2007 DIGILAW 331 (PAT)

Abdul Salam v. Mohammad Junai

2007-02-13

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Plaintiffs-landlord, being aggrieved by the order dated 19.11.2005, passed by the 2nd Munsif, Sasaram in Eviction Suit No. 3 of 2004 rejecting their prayer for eviction of the tenants-defendants in terms of Sec.14(4) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 and accepting the written statement on payment of cost, have preferred this application. 2. Facts lie in a narrow compass;- Plaintiffs-petitioners filed suit for eviction on the ground of personal necessity. After service of summons, defendant no. 1 appeared in the suit on 12th of October, 2004 and filed written statement on 17.1.2005. However, the said written statement was filed without the leave of the Court. Plaintiffs filed application for passing order of eviction, inter alia, on the ground that the defendant having not obtained the leave as contemplated under Sec.14(4) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, hereinafter referred to as the Act, the statement made by him shall be deemed to have been admitted by the defendant and they shall be entitled to order of eviction on the aforesaid ground itself. By-reason of the impugned order said application has been rejected. 3. Mr. Din Bandhu Singh, appearing on behalf of the petitioners raises a very short points. He submits that the plaintiffs had filed the suit for eviction on the ground of personal necessity, as provided under Sec.11(1)(c) of the Act, its disposal shall be in accordance with the special procedure prescribed under Sec.14 of the Act. He submits that before a tenant can be allowed to contest the prayer for eviction on the ground of personal necessity, such tenant is required to file affidavit stating the ground on which it intends to make such contest and obtains leave of the Court. He points out that the defendant had although filed the written statement but not sought the leave of the Court and in that view of the matter the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to order of eviction on the said ground alone. 4. 4. in support of his submission he has placed reliance on a Division Bench judgment of this Court in the case of Manik Roy vs. Raghunandan Prasad (1993(2) PLJR 215) and my attention has been drawn to paragraph 10 of the judgment which reads as follows:- "It may be stated here that in the case of Champa Devi (Supra) no previous decision of the Court was noticed. I have already indicated above the distinction between the leave to contest within the meaning of Sec.14(4) and the permission to contest as a result of favourable order under Order 9, Rule 13. I have no manner of doubt that in view of the special procedure provided for trial of suit for eviction on the ground of personal necessity or expiry of the period of tenancy, the requirement of taking leave of the Court as provided under Sec.14(4) is mandatory and in its absence neither the written statement can be accepted nor the defendant can be allowed to contest the suit. In my opinion, the decision rendered in Champa Devis case (supra) does not state the law correctly and deserves to be overruled." 5. Despite service of notice on the Opposite party, no body has chosen to appear on their behalf. 6. Plaintiffs have sought eviction on the ground of personal requirement and as such its disposal shall be in accordance with the special procedure prescribed under Sec.14 of the Act and hence the submission advanced, necessitates examination of Sec.14 (4) of the Act, which reads as follows:- "14. Special procedure for disposal of cases for eviction on ground of bonafide requirement.- xxx xxx xxx (4) The tenant on whom summons is duly served (whether by ordinary mail or by registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided: and in default of the appearances in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid." 7. From a plain reading of Sub-section 4 of Sec.14 of the Act, it is evident that a tenant on whom summon is duly served cannot be allowed to contest the prayer for eviction from the premises on the ground of personal necessity, unless he files an affidavit stating the ground on which he seeks to make such contest. Not only this, he has to obtain the leave of the Court and in default of obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid. 8. Defendants in the present case had appeared in the suit and have not obtained the leave of the Court, as such, the consequence as provided under Sec.14(4) of the Act shall naturally ensue: meaning thereby that the statement made by the plaintiffs in the suit for eviction shall be deemed to be admitted by the defendants and the plaintiffs shall be entitled to an order for eviction, if the facts deemed to be admitted is a ground for eviction. 9. In my opinion the necessity to obtain leave of the Court is mandatory and in its absence neither the written statement can be accepted nor the defendants can be allowed to contest the suit. Hence the direction given by the Court below for accepting the written statement on payment of cost, without the leave of the Court, is therefore, clearly without jurisdiction, which is fit to be interfered with by this Court in exercise of its revisional jurisdiction. The view which I have taken finds support from the Division Bench judgment of this Court in the case of Manik Roy (Supra). 10. In the result, the application is allowed, order dated 19.11.2005 passed by the 2nd Munsif, Sasaram is set aside. He shall proceed in the matter, as provided under Sec.14(4) of the Act, as discussed above. 11. No cost.