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2011 DIGILAW 5 (JHR)

Qurban Quraishi v. Satya Pal Verma

2011-01-04

POONAM SRIVASTAV

body2011
Order Heard the respective counsel for the parties. 2. The order impugned is dated 7.8.2010 (Annexure-5) passed by the. Munsif, Pal am au at Daltonganj in Eviction Suit No. 9 of 2009. The facts of the case are that the plaintiff-respondent preferred an eviction suit on the ground of his personal need under Section 11 (1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act). 3. The defendant-petitioner appeared and filed his written statement on 16.6.2010. Subsequently on .18.6.2010, another application was moved for recalling the order dated 20.2.2010, whereby the court had passed an order to proceed ex parte. The application dated 18.6.2010 is Annexure-3. In the said application at Paragraph-1 it has been stated that the court below deemed the service to be sufficient after expiry of a period of one month since neither the notice nor the acknowledgment was received back. The contention of the petitioner's counsel is that this appellation was rejected by means of the impugned order dated 7.8.2010 (Annexure-5) to the writ petition illegally. 4. The bone of the contention in the instant case is that after instituting the present writ petition, the petitioner filed an application seeking permission to contest the suit which should necessarily precede filing of a written statement. The court rejected the application for recalling the order to proceed ex parte because though the written statement was filed, but no application was preferred, seeking leave to contest the suit which was filed at the behest of the landlord for evicting the tenant on the ground of his bona fide need The permission to contest the suit is a preliminary mandatory requirement. 5. The court below has dismissed the application of the petitioner for recall of the order to proceed ex parte because till that date there was no application seeking permission to contest the suit. 6. Learned counsel on behalf of the respondent-landlord has vehemently argued and addressed the Court that this provision being mandatory and therefore the leave application was liable to pre-empt the written statement. The petitioner failed to do so even after filing of an application to recall the order dated 20.2.2010 to proceed ex parte. Counsel for the respondent has also placed reliance on a decision of this Court in Umesh Ram vs. Shatrughan Prasad, 1987 PLJR 62. The petitioner failed to do so even after filing of an application to recall the order dated 20.2.2010 to proceed ex parte. Counsel for the respondent has also placed reliance on a decision of this Court in Umesh Ram vs. Shatrughan Prasad, 1987 PLJR 62. The learned Single Judge in the aforesaid decision was of the view that when the petitioner of the aforesaid case filed his written statement, he had failed to prefer an application seeking leave to contest which is the most essential and primary ingredient of subsection 4 of Section 14 of the Act. It is mandatory in character therefore the present petitioner is not entitled to any relief. 7. Learned counsel also placed reliance on another Division Bench decision h The Delhi Cloth and General Mills Company Limited (now known as D.C.M. Ltd.) vs. Suraj Kuer & Another, 1986 PLJR 982 . This Division Bench had affirmed and confirmed the judgment of the learned Single Judge cited above. 8. The second ground of challenge is that the application seeking leave to contest the suit was riled after expiry of the period of filing of the written statement and therefore he is not entitled for any relief whatsoever. 9. After hearing the parties at length and going through the provisions of law and the procedure laid down under Section 14 of the Act it is correct that sub clause 4 of Section 14 makes it mandatory for the tenant to seek permission to contest the suit. Sub-section 5 of Section 14 also makes it mandatory on the court to grant leave to contest the said application filed within time and sub-section 6 requires that the tenant may file his written statement within 15 days from the order granting leave to contest. In the instant case, admittedly the entire procedure has gone topsy-turvy on account of the reason that the petitioner-tenant was not aware that there existed an order to proceed ex parte in the month of February, 2010 even before W.S. was filed. The court deemed the service to be sufficient since no acknowledgment nor the summons were received back. In the instant case, admittedly the entire procedure has gone topsy-turvy on account of the reason that the petitioner-tenant was not aware that there existed an order to proceed ex parte in the month of February, 2010 even before W.S. was filed. The court deemed the service to be sufficient since no acknowledgment nor the summons were received back. The tenant on the other hand after coming to know about the institution of the suit hurriedly filed written statement, but it appears that he completely overlooked the mandatory provisions seeking leave to contest and at a later date an application was filed to recall the order dated 20.2.2010 which was rejected and challenged in this Court. The permission to contest was sought only in the month of December, 2010. I am in complete agreement with the submissions of the learned counsel appearing on behalf of landlord that since these provisions are mandatory that should be strictly adhered to by the court. In the instant case the tenant has approached this Court under Article 227 and has invoked supervisory and equity jurisdiction that he is being deprived a contest on merits in the eviction suit on account of some mistake or wrong legal advice given to him. 10. After hearing the counsel, I am of the view that mandatory provisions should be adhered to but in the given circumstance, apparently on the face of the record, it appears that wrong was committed inadvertently. The order to proceed ex parte was on account of the deemed service which was not in his knowledge. This is not a case where the matter has been lingered deliberately though this is what has been canvassed by the counsel appearing on behalf of the landlord on equitable ground alone the petitioner is entitled to the relief claimed. I come to a conclusion that the matter should be decided on merit after exchange of pleadings. In the instant case the application has already been filed though at a belated stage, I direct that the court below shall grant leave as required under Section 14(4) to contest the suit as written statement has already been filed and decide it on merits instead of technicalities. 11. The writ petition is disposed of with the aforesaid direction and the orders dated 7.8.2010 and 20.2.2010 are hereby quashed. 11. The writ petition is disposed of with the aforesaid direction and the orders dated 7.8.2010 and 20.2.2010 are hereby quashed. The parties shall be given opportunity of hearing and the case shall be decided on merits. 12. Before I part with the judgment I am inclined to caution the court as well as the respective parties that no delay shall be caused in deciding the case whatsoever. Both the parties shall appear on 18.1.2011 alongwith the certified copy of this order and the court below shall proceed to decide the case as expeditiously as possible, preferably within a period of six months. It is made clear that no adjournment shall be allowed to either parties unless and until some extreme circumstance is in existence and that too after recording reasons in writing, otherwise the court shall stick to the time frame fixed by this Court. The parties shall bear their own costs.