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2010 DIGILAW 400 (JHR)

Droupadi Devi Modi v. Sri Krishan Kumar Agarwal

2010-03-31

D.G.R.PATNAIK

body2010
Order Since the issues involved in both the writ applications are identical, both these writ applications are disposed of by this common order. 2. Heard counsel for the parties. 3. The petitioner/plaintiff in both the writ applications has prayed for quashing the orders dated 26.9.2007 passed by the Munsiff, Hazaribagh (in Eviction Suit Nos. 10/2006 and 11/2006) whereby the learned court below has granted leave to the defendants/respondents under Section 14(4) of the Bihar Buildings (Lease, Rent and Eviction) Control Act to contest the suit. 3. As per the pleadings of the petitioner, it appears that she has filed the suits before the court below against the defendants/respondents for their eviction from the suit premises under the provisions of Section 11 (1)(e) of tile Bihar Buildings (Lease, Rent, and Eviction) Control Act, on the ground that the defendants in both the suits, were inducted as tenants for a fixed period of lease and despite the expiry of the period of lease, the tenants/ defendants did not vacate the premises. 4. The defendants/respondents appeared in the respective suits and filed applications under Section 14(4) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, praying for leave to contest the suits. Amongst the grounds on which the leave was sought for, the contention was that though admittedly agreements of lease for a fixed term were entered into between them and the landlord, namely the present petitioner, but after the expiry of the period of lease, the defendants had vacated the suit premises and had handed over the same to the landlord. In the Eviction Suit referred to in W.P.(C) No. 6778 of 2007, the defendant had pleaded that after his vacating the premises, the landlord had entered into an agreement for the sale of the premises with the sons of the defendant whereafter, the sons are coming in possession of the suit premises. In the Eviction Suit referred to in W.P.(C) No. 6785 of 2007, the defendant had pleaded that after his vacating the premises, in October, 2002, his son was inducted as tenant by the same landlord for a fixed period of lease. On these grounds, the defendants in both the suits had sought to contest the suit. After hearing counsel for the parties, learned court below by the impugned order, had allowed the defendants to contest the suits. 5. On these grounds, the defendants in both the suits had sought to contest the suit. After hearing counsel for the parties, learned court below by the impugned order, had allowed the defendants to contest the suits. 5. Learned counsel for the respondents/defendants, while supporting the impugned order, would submit that though the defendants have acknowledged the fact that a lease was entered into between them and the plaintiff-landlord for a fixed period and that the defendant had vacated the premises sometime in the year 2002, a farther statement has been made by the defendants to the effect that the premises is presently in occupation of the sons of the defendants and the present occupants ought therefore, to have been impleaded as necessary parties in the suits. Learned counsel adds further that there are other grounds on which leave has been sought by the defendants to contest the suits. 6. The provisions of Section 14(4) of the Bihar Buildings (Lease, Rent and Eviction) Control Act are clear and specific. Though it reserves a discretion to the trial court to grant leave to the defendant to contest the suit if such suit is filed on the grounds of sub-sections 1 (c) and (e) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, but such discretion has to be exercised judiciously. 7. From the perusal of the impugned orders it appears that the trial court has allowed the defendants, in both cases, to contest the suits only on the ground that in the light of the defendant's statement that they had already vacated the suit premises, any decree passed in the suit would be to the detriment of the defendants. 8. In the light of the pleadings of the parties, if a decree for eviction is passed in favour of the petitioner and against the defendants, who have no ostensible interest in the suit premises, it is not understood as to how it would be to the detriment of the defendants, since any such decree, even if passed, would not be called upon for execution against the defendants and such a decree may at best be a paper decree for the plaintiff. But on the other hand, if the plaintiff's contention is found correct that despite lapse of the stipulated period of lease the defendants have not vacated the premises and are continuing with their occupation of the premises, then the decree, if granted to the plaintiff, can be executed against the defendants. In absence of any other ground for granting leave to contest, the impugned orders, in my opinion; suffer from non-application of mind and are improper. 9. Accordingly, both these writ applications are allowed. The impugned orders of the court below passed in both the suits are hereby set aside. The matter is remitted back to the court below to consider, in both the suits, the defendants' prayer afresh and take an appropriate decision in accordance with law, within a period of two months from the date of this order. While considering the issue, learned court below shall not be prejudiced by this order. The defendants/respondents shall be at liberty to address the court on their prayer for leave to contest the suits on any additional grounds.