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2010 DIGILAW 646 (JHR)

Raj Narayan Pandey v. Kameshwar Thakur

2010-05-29

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J. 1. This civil revision is directed against the order and decree dated 31.01.2009 and 09.02.2009 respectively passed by Sub Judge-IV, Jamshedpur in Title Suit No. 83 of 2000, whereby and whereunder petitioner/defendant has been directed to handover vacant possession of the suit property (fully described in the plaint) to the opposite party/plaintiff. 2. It appears that the opposite party/plaintiff has filed a suit under Section 6 of the Specific Relief Act for recovery of possession. Plaintiff was tenant under petitioner and was in peaceful possession of the portion of shop bearing No. 56 Kagalnagar Market, Jamshedpur on payment of monthly rent of Rs. 250/-. It is further stated that in the month of December, 1999 petitioner came along with his son and others and directed the plaintiff to vacant the shop. The plaintiff further states that when he did not vacant the shop, on 24.12.1999 petitioner disconnected electric supply. Against that plaintiff has filed HRC Case No. 1/2000 in the court of S.D.M-cum-House Rent Controller, Jamshedpur. It is further stated that on 13.02.2000, petitioner/defendant along with others forcibly entered into the suit premises and after breaking the lock threw away all articles and furnitures and forcibly dispossessed plaintiff from the suit premises. It is stated that immediately matter was reported to the police, accordingly Sonari P.S. Case No. 10 of 2000 instituted under Sections 448 & 380 of the I.P.C. It is further stated that since petitioner/defendant forcibly dispossessed the opposite party/plaintiff without following the process of law, therefore present suit under Section 6 of Specific Relief Act, for recovery of possession has been filed. 3. The petitioner/defendant appeared and contested the suit by filing written statement. According to the petitioner, opposite party/plaintiff was never in possession of the suit premises as a tenant, so the allegation made in the plaint that the petitioner has disconnected electric connection from the suit premises was denied. It is stated that the HRC Case No. 01/2000 filed by the opposite party/plaintiff has been dismissed. It is further stated that the petitioner never dispossessed opposite party/plaintiff from the suit premises because he was never in possession of the same. It is stated that the opposite party/plaintiff filed a false case before the police bearing Sonari P.S. Case No. 10 of 2000 corresponding to G.R. No. 280 of 2000, which resulted in acquittal. It is further stated that the petitioner never dispossessed opposite party/plaintiff from the suit premises because he was never in possession of the same. It is stated that the opposite party/plaintiff filed a false case before the police bearing Sonari P.S. Case No. 10 of 2000 corresponding to G.R. No. 280 of 2000, which resulted in acquittal. It is submitted that the suit under Section 6 of the Specific Relief Act is liable to be dismissed. 4. On the basis of rival pleadings of the parties, learned court below framed following issues for determination: (i) Is the suit as framed maintainable and has the plaintiff valid cause of action for it? (ii) Is the suit barred by limitation, waiver, estoppel and acquiescence? (iii) Is the suit under valued? (iv) Is the suit suffers from non-joinder of necessary party? (v) Was the plaintiff ever in possession of the portion of suit shop mentioned in Schedule of the plaint as tenant under the defendant and defendant forcibly dispossessed the plaintiff from the said premises? (vi) Is the plaintiff entitled to recovery of possession of suit premises under Section 6 of the Specific Relief Act on the ground of forcible dispossession from the suit shop? (vii) To what other relief and reliefs, plaintiff is entitled to? 5. It then appears that both the parties adduced oral as well as documentary evidence in support of their case. Learned court below, after considering the evidence available on record, concluded that the opposite party/plaintiff was forcibly dispossessed from the suit premises, thus, directed the petitioner/defendant to handover the vacant possession of the suit premises to the opposite party/plaintiff within two months. It appears that a decree was prepared, accordingly, by the court below. Against the aforesaid order and decree, the present revision filed. 6. It is submitted by Sri Indrajit Sinha, learned Counsel for the petitioner that the impugned order of learned court below suffers from material illegality and irregularity. It is submitted that learned court below heavily relied upon Annexure-6, which is a photocopy of its original. It is submitted that the original has not been produced. Under the said circumstance, it is not open for the learned court below to look into aforesaid document for passing an order against the petitioner. It is submitted that learned court below heavily relied upon Annexure-6, which is a photocopy of its original. It is submitted that the original has not been produced. Under the said circumstance, it is not open for the learned court below to look into aforesaid document for passing an order against the petitioner. It is further submitted that the plaintiff failed to prove that he is in possession of the suit premises, therefore, impugned order and decree cannot be sustained. 7. On the other hand, learned Counsel for the opposite party/plaintiff submits that learned court below sent a requisition to the Sonari Police Station for sending the original of Ext-6. It is submitted that in compliance of same, Officer-in-charge reported that original of Ext-6 handed over to Shashi Bhushan Chowdhary, S.I. for inquiry, therefore, he did not send it. Accordingly, photocopy of Ext-6 (secondary evidence) was allowed to be taken in evidence. It is submitted that against the said order of learned court below, petitioner filed a case in this Court, which was dismissed. Thus, now it is not open for him to raise the same contention as the same is barred by res-judicata. It is further submitted that in Ext-6 petitioner admitted that the opposite party/plaintiff is his tenant. It is also submitted that the certificate issued by Indian Bank (Ext-5) shows that petitioner was running a Saloon in shop No. 56 of Kagalnagar market, Sonari, Jamshedpur. Ext-9 series shows that opposite party remitted rent to the petitioner through money order but petitioner refused to receive the same. It is submitted that the certificate of Registration issued by Labour Superintendent, Jamshedpur further shows that the opposite party/plaintiff is running a hair cutting shop in Shop No. 56, New Market, Kagalnagar, Sonari, Jamshedpur. Accordingly, it is submitted that the opposite party/plaintiff was in possession of the suit premises as a tenant, but he has been forcibly driven out from the said shop, therefore, the suit under Section 6 of the Specific Relief Act is maintainable. It is further submitted that there is no illegality and/or irregularities in the impugned order, which requires any interference by this Court. 8. Having heard the submissions, I have gone through the record of the case. From perusal of Ext-6, the photocopy of application filed by petitioner/defendant before the Superintendent of Police, Jamshedpur, it appears that the petitioner/defendant admits that Kameshwar Thakur. 8. Having heard the submissions, I have gone through the record of the case. From perusal of Ext-6, the photocopy of application filed by petitioner/defendant before the Superintendent of Police, Jamshedpur, it appears that the petitioner/defendant admits that Kameshwar Thakur. (opposite party/plaintiff) was his tenant on a portion of his shop No. 56 situated at Kagalnagar Market, Jamshedpur. In the said application, he made request for eviction of opposite party/plaintiff from the shop in question on the ground of personal necessity. It is submitted by learned Counsel for the petitioner that the original of Ext.-6 has not been produced, therefore, photocopy of the same is not admissible in evidence. In this connection, it is worth to be mentioned that vide order dated 05.03.2002, learned court below sent a requisition to the Sonari Police Station for sending the original application filed by the petitioner/defendant before the S.P., Jamshedpur. It then appears that in compliance of aforesaid order, Officer-in-charge of Sonari Police Station reported that the original application was given to Shashi Bhushan Choudhary, S.I. and same is not available in the police station. Accordingly, learned court below vide order dated 30.01.2004 allowed the application filed by opposite party for proving the said application by adducing secondary evidence. It is stated at bar that against the aforesaid order, the petitioner filed a case in this Court, which was dismissed after considering the merit. Thus, now it is not open for the petitioner to challenge the aforesaid order. It is worth mentioning that opposite party was re-examined on 30.06.2004 and on that day he proved Ext-6. It appears that petitioner/defendant was examined on 24.08.2005 i.e. much after the re-examination of opposite party/plaintiff. From the perusal of examination-in-chief of petitioner/defendant, I find that he has not denied the genuineness of Ext-6. Thus, in my view, petitioner/defendant also admits that opposite party/plaintiff was his tenant. 9. In this connection, it is also worth to be mentioned that P.W.-2, Dinesh Kumar Mahto, Assistant Manager, Indian Bank, Bistupur, deposed that Rs. 5,000/- was given to the opposite party/plaintiff as loan and according to the bank record, the hair cutting saloon of plaintiff situates at shop No. 56, Kagalnagar Market. He has proved the certificate issued in favour of opposite party/plaintiff on 14.06.2001 by the then Branch Manager of the Bank. 5,000/- was given to the opposite party/plaintiff as loan and according to the bank record, the hair cutting saloon of plaintiff situates at shop No. 56, Kagalnagar Market. He has proved the certificate issued in favour of opposite party/plaintiff on 14.06.2001 by the then Branch Manager of the Bank. P.W.-2 further deposed that before sanctioning loan, the Bank used to make verification of the place of business. Ext-7, Registration Certificate issued by Labour Superintendent, Jamshedpur, also shows that opposite party/plaintiff was running a hair cutting saloon in shop No. 56, New Market, Kagalnagar, Sonari. Thus, from the aforesaid documentary evidence, it is clear that a portion of .shop No. 56 at Kagalnagar, Sonari, Jamshedpur was in possession of opposite party/plaintiff as a tenant. Under the said circumstance, opposite party/plaintiff cannot be evicted from the suit premises without taking recourse of the provisions of Bihar Building (Lease, Rent & Eviction) Control Act, 1982. 10. It is worth mentioning that learned court below considered all the evidences available on record both oral and documentary, and come to the conclusion that opposite party/plaintiff was forcibly evicted by the petitioner/defendant without taking recourse to the law, thus, opposite party/plaintiff is entitled for recovery of possession. The finding given by the learned court below are based on evidence, thus, I agree with the said findings. 11. In view of aforesaid discussions, I find no illegality and/or irregularity in the impugned judgment of the court below, which requires any interference by this Court. 12. In the result, this revision has no merit and accordingly, I dismiss the same. However, in the facts and circumstances of the case, the parties shall bear their own costs.