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Jharkhand High Court · body

2011 DIGILAW 824 (JHR)

Md. Shaheed Ahmad v. Alimum Nisha

2011-09-02

N.N.TIWARI

body2011
JUDGMENT This revision is against the order dated 15.2.2011 passed by learned Munsif 1st, Dhanbad in Execution Case No.14 of 2009. By the impugned order, learned Munsif has rejected the petitioner's application under Section 47 of the Code of Civil Procedure. 2. The short fact of the case is that an order was passed by Rent Controller, Dhanbad fixing fair rent. The petitioner contested the order in appeal and thereafter in revision, but could not succeed. The opposite parties, thereafter, levied execution of the said order of Rent Controller in Execution Case No. 14 of 2009 in the Court of Munsif 1st, Dhanbad. 3. The petitioner, who is the tenant, challenged the said decree by filing objection under Section 47 of CPC. The first ground for challenge to the execution of the said order was that the petitioner has been paying monthly rent as determined by Sub-Judge-VI, Dhanbad in Title (Eviction) Suit No. 96 of 2001 and, as such, he is not liable to pay fair rent fixed by the Rent Controller, Dhanbad. The second ground was that since the Title (Eviction) Suit is pending in the Court of Sub-Judge-VI, Dhanbad, learned Munsif has no .jurisdiction to proceed with the execution of the order of Rent Controller. 4. Learned counsel, appearing on behalf of the petitioner, submitted that the said objection has been arbitrarily rejected by the impugned order without taking into consideration that the petitioner has been depositing the rent per month, as determined by learned Sub-Judge, under Section 15 of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the 'Act') and since the eviction suit is pending in the Court of Sub-Judge, learned Munsif has no jurisdiction to proceed with the execution case. 5. Learned counsel for the petitioner referred to and relied on the decision of the Patna High Court (as then was) in Anisur Rahman vs. Sardar Jogendra Singh @ Jogendra Singh [1993 BBCJ 673] [: 1992(2) PLJR 823]. 6. Learned counsel for the petitioner submitted that the proceeding in execution case is without jurisdiction and the impugned order is liable to be set aside. 7. Mr. 6. Learned counsel for the petitioner submitted that the proceeding in execution case is without jurisdiction and the impugned order is liable to be set aside. 7. Mr. Jai Prakash, learned Senior Counsel, appearing on behalf of the opposite party, opposed the petitioner's petition and submitted that the order of deposit of rent by the tenant under Section 15 of the Act is entirely different from the order of fair rent passed by the Rent Controller and as a consequence, non-compliance of the said order debars the tenant to take defence against ejectment, whereas nonpayment of fair rent fixed by the Rent Controller for more than two months makes tenant liable for eviction. The order fixing fair rent passed by the Rent Controller under Section 5 of the Act has separated appellate and revisional avenues, whereas the order passed under Section 15 of the Act has different consequence and avenues. He further submitted that the order of the Rent Controller has to be executed by the competent civil court and not necessarily by the court in which suit for eviction is pending. The petitioner a tenant has been making malicious attempts to impede the process of execution of the order of fair rent passed by the Rent Controller on frivolous grounds. The application under Section 47 of CPC is wholly misconceived and learned Munsif has rightly rejected the same. 8. I have heard learned counsel for the parties and considered the facts and materials on record. I also perused the impugned order of learned Munsif. After hearing the parties and considering all the relevant aspects, learned court below has come to the conclusion that not on y the petitioner's application is without any merit the petitioner had earlier raised almost similar objections and the same were rejected. He had filed writ petition before this Court being W.P.(C) No. 5489 of 2010 challenging the order of learned trial court and the same was also dismissed by order dated 7.12.2010. 9. Learned court below has considered the grounds of the petitioner in detail and has passed a reasoned order. 10. Section 5 of the Jharkhand Buildings (L.R. & E) Control Act provides for determination of fair rent of buildings in occupation of tenant. Section 5 of the Act, reads as follows:- "5. 9. Learned court below has considered the grounds of the petitioner in detail and has passed a reasoned order. 10. Section 5 of the Jharkhand Buildings (L.R. & E) Control Act provides for determination of fair rent of buildings in occupation of tenant. Section 5 of the Act, reads as follows:- "5. Determination of fair rent of buildings in occupation of tenants.-(1) When, on application by the landlord or by the tenant in possession of a building or otherwise, the Controller has reason to believe that the rent of that building is low or excessive, he shall hold a summary enquiry and record a finding. (2) If, on a consideration of all the circumstances of the case including any amount paid by the tenant by way of premium or any other like sum in addition to the rent, the Controller is satisfied that the rent of the building is low or excessive he shall determine the fair rent for such building." 11. Against the said order, appeal is provided under Section 6 and then revision can be preferred under Section 7 of the said Act. The order passed under Section 5 of the said Act by the Rent Controller or appellate authority or revisional authority is executable under Section 23 of the said Act, which runs thus:- "23. Execution of Orders of Controller and Commissioner.-Every order of the Controller passed under this Act, where no appeal against such order has been preferred under Section 24, every order of the appellate authority on appeal under Section 24 and every order of the Commissioner passed in revision under Section 26 shall be executed by the court as if such orders were a decree passed by such court." Whereas, order passed under Section 15 of the said Act provides for deposit of rent by tenants in suits for ejectment. Section 15 is reproduced herein below:- "15. Section 15 is reproduced herein below:- "15. Deposit of rent by tenants in suits for ejectment.-(1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before or after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month; the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord's witnesses. (2) If in any proceeding referred to in sub-section (1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in Court the amount payable by him under sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. (3) If the Court is satisfied that any dispute referred to in sub-section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section (1)." 12. It is clear from the said provision that on an application of the landlord, the court may make an order for deposition of rent month by month at such rate as may be determined by the court and the arrears of rent both before or after the institution of the suit. It is clear from the said provision that on an application of the landlord, the court may make an order for deposition of rent month by month at such rate as may be determined by the court and the arrears of rent both before or after the institution of the suit. As the consequences of failure of the tenant to deposit the arrears of rent within fifteen days or the current rent by the fifteenth day of next following month, the defence against ejectment is struck off and the tenant is placed in the same position as if he had not defended the claim of ejectment and the tenant is not allowed to cross-examine the landlord's witnesses. 13. Thus, the scope and consequences of the order passed under section 5 and Section 15 of the said Act are entirely different and execution of an order passed by learned Rent Controller cannot be said to be illegal, notwithstanding compliance of the order passed under Section 15 of the said Act by the tenant. 14. So far as second ground taken by the petitioner is concerned, no provision of law has not been brought to the notice of the court providing for levying the execution of the order passed by the Rent Controller in the same court in which the suit for eviction is pending between the parties. I, therefore, find no substance in the said ground. 15. In the case of Anisur Rahman (supra), also it has been held in paragraph-10 that the order passed under Section 5 and that passed under Section 15 of the said Act have different scopes and, as such, the said decision, does not in any way help the petitioner. 16. I, therefore, find no merit in this Civil Revision. The same is, accordingly, dismissed.