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2010 DIGILAW 1044 (JHR)

Sri Krishna Kumar Agarwal v. Droupadi Devi Modi

2010-11-30

R.K.MERATHIA

body2010
Order This writ petition under Article 227 of the Constitution of India, has been filed by the defendant/petitioner against the order dated 16.6.2010 passed by learned Munsif, Hazaribagh in Title (Eviction) Suit No. 10 of 2006 rejecting the• petitioner's application dated 11.6.2010 praying for leave to contest the suit. 2. Shri P.K. Prasad. learned Senior Counsel appearing for the petitioner, submitted that the plaintiff/respondent is required to prove that there was a fixed term tenancy under the registered lease and even after expiry of the period, the petitioner has not vacated the premises and is continuing In possession. He further submitted that the stand of the petitioner was/is that he has already vacated the premises in the year 2002 and therefore, this became a triable issue, on which leave should have been granted, He emphasized on the word 'shall' occurring in Section 14(5) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'Act'). He relied on the judgment of Precision Steel & Engineering Works and Another vs. Prem Deva Niranjan Deva Tayal reported in (1982)3 SCC 270 ; Nasiruddin Ansari vs. Lalan Prasad reported in 1992(1) PLJR 123; Md. Fahimuddin vs. Godhan Prasad Singh & Another reported in 1989 PLJR 899. 3. On the other hand. Shri Amar Kumar Sinha, learned counsel appearing for, the plaintiff/respondent supported the impugned order and submitted that no triable issues were disclosed by the petitioner and therefore, leave has been rightly refused by the trial court. He relied on the judgment in the case of Gurprit Singh vs. Bhagwan Mishra and Another reported in 1997(2) PLJR 573 . 4. The suit in question being Eviction Suit No. 10 of 2006 was instituted by the respondent against the petitioner on the ground of expiry of lease. The ground stated in the plaint inter alia are as follows: The petitioner was inducted as tenant in respect of the s'1op premises described in schedules of the plaint for a fixed period of three years commencing from 1.1.1994 and ending on 31st December, 1997 on a rent of Rs. 250/- per month only under a registered lease dated 27.12.1994, out of which Rs. 200/- was towards rent for the shop and Rs. 250/- per month only under a registered lease dated 27.12.1994, out of which Rs. 200/- was towards rent for the shop and Rs. 50/- was towards rent for furniture and fittings described In Schedule-B of the plaint, but in spite of repeated requests, the defendant did not vacate the suit premises even after expiry of lease. 5. The petitioner filed an affidavit for leave to contest the suit inter alia stating, that he had vacated the suit premises sometimes in the year 2002 and delivered the vacant possession thereof to the respondent and thereafter, the respondent entered into an agreement of sale of the suit property with his two sons namely. Vivek Agarwal and Mahendra Agarwal and received advance in part performance of the contract and put them in possession of the suit premises where they were carrying on their own business; and that as they were not made parties, the suit was also bad for non-joinder of necessary parties. 6. By order dated 26.9.2007, the trial court granted leave to the petitioner, against which the respondent filed a writ petition being W.P.(C) No. 6778 of 2007 which was disposed of on 31.3.2010 setting aside the impugned order and remitting the matter back to the trial court. Thereafter, petitioner filed additional ground of leave reiterating the stand taken by him in the affidavit filed earlier. A rejoinder was filed by the respondent. The trial court after hearing the parties, passed the order impugned. The trial court is of the view that the petitioner has failed to show any ground for grant of leave. It also observed that if the defendant/petitioner had handed over vacant possession of the suit premises to the landlord/respondent and decree for eviction is passed against the petitioner, it cannot be executed against him and therefore, he will not be affected in any manner. 7. The only question involved in this case is, whether, the trial court rightly refused to grant leave to the petitioner to contest the suit? 8. In my opinion, answer would be in the affirmative for the following reasons: After considering various judgments of Supreme Court, including (1982)3 SCC 270 relied by the petitioner, this court in paragraph-10 of 1997(2) PLJR 573 , observed as follows: "10. Section 14 of the Act is a special procedure introduced for the first time in the Act of 1982. In my opinion, answer would be in the affirmative for the following reasons: After considering various judgments of Supreme Court, including (1982)3 SCC 270 relied by the petitioner, this court in paragraph-10 of 1997(2) PLJR 573 , observed as follows: "10. Section 14 of the Act is a special procedure introduced for the first time in the Act of 1982. The sole object of introduction of this Section is to provide speedy remedy for eviction where the landlord requires the premises for his bona fide requirement or if the fixed period of lease has expired. By introduction of this Section a vital departure has been made in the Act with regard to the procedure for trial of eviction suits brought by the landlord on the aforesaid two grounds. The aforesaid provision of Section 14 and similar provision under the Rent Control Acts of other States came up for consideration before the Supreme Court and various High Courts and law has been settled in this regard. The Apex Court and the other High Courts are of the view that the provision should be liberally construed for granting leave to the tenant to contest the suit and it is the statutory duty of the court to grant leave so that there should not be illegal eviction of the tenants. At the same time the Apex Court also held that the only test for granting leave is to see whether the affidavit whereby leave has been sought for discloses any facts which need investigation by adducing evidence in trial. Reference may be made to some of the decisions of the Apex Court namely, the cases of (i) Precision. Steel and Engineering Works and Another vs. Prem Deva Niranjan Deva Tayal, (1982)3 SCC 270 , (ii) Smt. Jamna Devi and Others vs. Kude Ram and another, (1983)3 SCC 376 , (iii) Om Prakash Saluja vs. Smt. Saraswati Devi, (1983)2 SCC 471. It must be borne in mind that provision for obtaining leave to contest the suit had been made to avoid frivolous, baseless or irrelevant plea taken by the defendant-tenant in the suit for eviction." 9. The lease expired in 1996. The suit for eviction was instituted in 2006. It must be borne in mind that provision for obtaining leave to contest the suit had been made to avoid frivolous, baseless or irrelevant plea taken by the defendant-tenant in the suit for eviction." 9. The lease expired in 1996. The suit for eviction was instituted in 2006. The petitioner-tenant want to contest the suit taking defence that he vacated the tenanted premises in the year 2002 itself and thereafter, the respondent-landlord entered into an agreement for sale with his sons and received advance, who are occupying the premises in part performance of the contract, and moreover, they have not been made parties in the suit. Learned trial court has rightly observed that if the petitioner has vacated the suit premises, he need not fear if a decree of eviction is passed against him. 10. In my opinion, no triable issue has been made out by the petitioner even on his own showing. If the petitioner is allowed to contest the suit on such frivolous, baseless and irrelevant defence; it will frustrate the very purpose of making the provision of obtaining leave in case where the eviction is sought on the ground of personal necessity and/or expiry of lease. 11. Accordingly, this writ petition is dismissed. However, no costs. The trial court will expedite the disposal of the suit.