Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 921 (JHR)

Suber Alam Hawari v. Md. Aslam

2011-09-22

N.N.TIWARI

body2011
Judgment NARENDRA NATH TIWARI This appeal is against the judgment and decree passed by learned Additional District Judge, F.T.C No. I, Dhanbad in Title Appeal No. 20/03 dismissing the appeal of the appellant and upholding and affirming the judgment and decree of learned Munsif, 1st Class, Dhanbad in Title (Eviction) Suit No. 87/2001. 2. The appellant was the defendant in the said title suit. 3. The plaintiffs had filed suit for eviction of the defendant from the suit premises on the ground of default in payment of rent, personal necessity and for damaging the suit premises. 4. The defendant appeared, but did not file written statement within the statutory period. The suit, thereafter, proceeded for hearing. During the pendency of the trial, an application was filed by the landlord under Section 15 of the Bihar (Jharkhand) Buildings (Lease, Rent & Eviction) Control Act. Learned Court below passed the order for depositing the arrears of rent as well as the current rent within the stipulated period of 15 days. 5. The defendant-tenant did not deposit the arrears / current rent. Consequently, when the trial was proceeded, he was not allowed to cross-examine the plaintiff-witnesses on the ground of ejectment. 6. On due scrutiny and appraisal of the facts, evidences and materials on record, learned Trial Court held that there was relationship of landlord and tenant between the parties and the defendant defaulted in payment of rent for more than two months and the defendant repeatedly damaged the house. On the basis of the said findings, learned Trial Court decreed the plaintiffs' suit. 7. The defendant preferred appeal in the Court of learned District Judge, Dhanbad being T. A. No. 20/03. On transfer, the said appeal was finally heard and disposed of by learned Additional District Judge, F.T.C-I, Dhanbad. 8. Learned lower appellate Court appraised the facts, materials and evidences on record and arrived at the findings concurring with the findings of facts recorded by learned Trial Court, and dismissed the appeal. 9. In this second appeal, the judgment and decree of learned lower appellate Court has been assailed on the ground that the Courts below did not afford proper opportunity of filing written statement and adducing evidences to the defendant. The defendant-appellant was erroneously deprived of his right to defend and to file written statement only on the ground of expiry of the statutory period for filing written statement. The defendant-appellant was erroneously deprived of his right to defend and to file written statement only on the ground of expiry of the statutory period for filing written statement. Learned Courts below denied the valuable right of the appellant on a technical ground and as such the impugned judgment and decree is bad and unsustainable. 10. I have heard learned counsel for the appellant and perused the judgment and decree of learned Courts below. It appears from the impugned judgment and decree of learned lower appellate Court that almost the same ground was taken by the appellant before learned appellate Court for assailing the judgment and decree of learned Trial Court. 11. Learned lower appellate Court found that though the defendant-appellant appeared and was given adequate opportunity to file written statement, he failed to file written statement. Learned Trial Court had given last opportunity by fixing 5.12.2002, but written statement was not filed. Under that circumstance, learned Trial Court debarred the defendant from filing written statement after expiry of the statutory period, envisaged in Order VIII Rule 1 C.P.C. He found that after the order debarring him to file written statement, the defendant-appellant neither prayed for recalling the said order before learned Trial Court nor challenged the said order in revision. The conduct of the defendant demonstrates that he had deliberately dissociated himself from the proceedings of the Court. In view of the said intentional non-co-operation of the defendant, there was no way out for learned Trial Court than to proceed ex parte against the appellant. No other ground was placed before learned lower appellate Court. 12. The grounds taken in this appeal give rise to the questions of fact which have been already answered by learned lower appellate Court, after going through and scrutinizing the facts and materials on record in negative by dismissing the defendant's-appellant's appeal. 13. The said concurrent findings of fact is binding on the second appellate Court. 14. I find no error or illegality in the impugned judgment and decree of learned lower appellate Court giving rise to any substantial question of law to be framed and decided in this appeal. 15. This appeal is, accordingly, dismissed.