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2009 DIGILAW 1222 (PAT)

Dhiraj Singh Ruhela @ Dhiraj Singh v. Brij Kishore Kumar Jain

2009-09-10

S.N.HUSSAIN

body2009
JUDGEMENT S.N.HUSSAIN, J. 1. This civil revision has been filed by the defendant-petitioner under the proviso to sub-section (8) of section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act for the sake of brevity) challenging the order of his eviction passed by the learned Munsif-ll, Bhojpur vide his judgment dated 6.2.2009 decreeing Eviction Suit No.22 of 2008. 2. The aforesaid suit was filed by plaintiffs-opposite parties for eviction of the sole defendant-petitioner on the ground of their personal requirement of the suit premises, namely, a shop-cum-godown with Sahan bearing holding no.77 near Dharman Chowk, Arrah detailed in Schedule-1 of the plaint with map. It was claimed by the plaintiffs that the suit premises alongwith other properties belonged to their joint family, which were partitioned among all the members of the family and the suit premises fell into the share of the plaintiffs. It was also claimed that since the plaintiffs had no other immovable properties they require the suit premises for their residence as well for their business. 3. The aforesaid suit was admitted on 24.11.2008 and notices were issued to the sole defendant, who appeared on 18.12.2008 and prayed for an adjournment, which was allowed and the next date of filing his written statement was fixed on 27.1.2009. On the said date also adjournment was sought by the defendant, which was allowed and next date was fixed on 6.2.2009 on which date the defendant filed his affidavit for leave to contest. Thereafter both the parties were heard at length and considering the entire facts and circumstances the learned court below rejected the defendants prayer for leave to contest and decreed the eviction suit vide its judgment dated 6.2.2009. 4. The said impugned order of his eviction has been challenged by the defendant-petitioner in the instant civil revision on the following grounds: (i) The suit has been filed for evic- tion of the defendant on the ground of personal necessity of the plaintiffs and also on the ground of defendant creating an under tenancy for the purpose of harassing the plaintiffs and hence the suit was not maintainable under Section 14 of the Act. In this connection, the defendant-petitioner has relied upon a decision of the Division Bench of this Court in case of Lalan Kishore Sharan Vs. Tara Chand Agrawal, reported in 1984 P.L.J.R. 432. In this connection, the defendant-petitioner has relied upon a decision of the Division Bench of this Court in case of Lalan Kishore Sharan Vs. Tara Chand Agrawal, reported in 1984 P.L.J.R. 432. (ii) The leave to contest was wrongly rejected by the learned court below on the ground of delay. (iii) The plaintiffis have several shops which they have given on rent to other tenants and hence they have no personal necessity of the suit premises. 5. So far first ground is concerned, paragraphs no.9 and 10 of the plaint make it very clear that the suit in question was filed under the provision of section 14 of the Act only on the ground of bona fide personal requirement of the plaintiffs and no other ground for eviction has been raised and the relief also is only for eviction of the defendant, interim injunction and cost of the suit. In the said circumstances, it is quite apparent that the suit was filed for eviction of the sole defendant on the only ground of personal necessity and hence it was covered under Section 11 (c) of the Act and as such was quite maintainable under Section 14 of the Act. The defendant himself realized that the suit had been filed under the provision of Section 14 of the Act and hence instead of filing any written statement in the suit he had filed an affidavit for leave to contest under the provision of Section 14 of the Act. Hence, in the said circumstances, he cannot be allowed to raise such objection. 6. The decision reported in 1984 PLJR 432 has been relied upon by the petitioner, but the said decision is not applicable to the facts and circumstances of this case, in which clause (c) of Section 11(1) of the Act had not merely been inserted by the plaintiffs, rather the entire basis of the plaintiffs claim for eviction of the defendant is their bona fide personal requirement only, regarding which they had made specific statement in the plaint including cause of action and relief and hence they cannot legally be deprived of the benefit of the special procedure of Section 14 of the Act. 7. 7. So far the second ground is concerned, admittedly, the defendant appeared in the suit on 18.12.2008 and was also present on the next date i.e. 27.1.2009 but on both the said dates he took adjournment on other grounds but did never take any adjournment for filing an affidavit for leave to contest under the provision of Section 14(4) of the Act. The said provision specifically provides that the tenant on whom summons is duly served, 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 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 of eviction on the ground aforesaid. 8. The procedure to be adopted in such proceeding under Section 14 of the Act has to follow the practice and procedure of the Court of Small Cause under sub-section (7) of Section 14 of the Act. The provisions of the Small Cause Court Act require that leave to contest has to be obtained in such matters by the defendant within a specified time, failing which, the grounds taken by the plaintiff shall be deemed to be admitted by the defendant and the plaintiff would be entitled to a decree as claimed for as per the provisions of the Act. Article 118 of the Limitation Act, 1963 also provides that for leave to appear and defend a suit under summary procedure the limitation was ten days from the date when the summons was served upon the defendant. 9. In the said circumstances, it is quite apparent that the defendant having admittedly appeared in the suit on 18.12.2008 neither filed any affidavit for leave to contest within ten days thereafter nor did he take any adjournment from the court for filing his affidavit for leave to contest and when ultimately the affidavit for leave to contest was filed on 6.2.2009 i.e. after about fifty days of his appearance in the suit, he neither filed any application for condoning the delay nor there was any reason at all to condone the delay or to grant any leave to contest. In these circumstances, the learned court below has rightly come to the conclusion that seeking adjournments on 18.12.2008 and 27.1.2009 for merely filing written statement would not amount to seeking any adjournment for filing an affidavit for leave to contest, specially when the written statement cannot be legally filed in such suit without taking any leave to contest. 10. Thus, it is quite apparent that the affidavit for leave to contest filed by the defendant was hopelessly barred by the law of limitation, for condonation of which no application had been filed by the defendant and hence the learned court below had no option but to reject the application for leave to contest and to proceed with the suit as per the provision of Section 14(4) of the Act, which specifically provided that in default of obtaining any leave to contest, 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 of eviction on the ground aforesaid. 11. In the aforesaid facts and circumstances, the decisions of the Honble Apex Court in case of Om Prakash Vs. Saraswati Devi, reported in A.I.R. 1982 S.C. 1599 as well as in case of Ramesh Chand Ardawatiya Vs. Anil Panjwani, reported in (2003)7 S.C.C. 350 are not at all applicable to the facts of this case. 12. So far the third ground is concerned, the defendant has admitted the relationship of landlord and tenant between the parties with respect to the suit premises in his aforesaid affidavit and had sought to contest only the ground of personal necessity which the plaintiffs had taken for eviction of the defendant. 12. So far the third ground is concerned, the defendant has admitted the relationship of landlord and tenant between the parties with respect to the suit premises in his aforesaid affidavit and had sought to contest only the ground of personal necessity which the plaintiffs had taken for eviction of the defendant. However, in spite of the aforesaid provision of Section 14(4) of the Act, the learned court below has very carefully considered the matter and has found that the plaintiffs have specifically claimed that there was a partition among all the members of the family on 2.2.2006, for which a memorandum of partition was prepared among them on 14.7.2006, in which only the suit premises was allotted to the plaintiffs, whereas, the other properties of the joint family fell into the shares of other co-sharers and hence the plaintiffs had no other property except the suit property, which was in the tenancy of the defendant, due to which the plaintiffs had to live in the property allotted to another co-sharer, who was asking the plaintiffs to vacate that premises. Furthermore in his affidavit the defendant could not disclose any such fact, which would disentitle the plaintiffs-landlords from obtaining an order of eviction on the ground of personal necessity. 13. In the aforesaid facts and circumstances, the learned court below was quite justified in rejecting the affidavit of the defendant-petitioner for leave to contest by its impugned order and, thereafter, passed an order for eviction of the defendant-petitioner on the aforesaid ground as per the provision of Section 14(4) of the Act. 14. Thus, this Court does not find any illegality in the impugned order of the learned court below nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed, but there will be no order as to cost.