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2013 DIGILAW 1192 (PAT)

Md. Tarai v. Md. Jafar Imam

2013-09-27

CHAKRADHARI SHARAN SINGH

body2013
ORDER 1. This is an application under Article 227 of the Constitution of India seeking quashing of the order dated 24.5.2011 passed by learned Munsif Ist, Munger in Eviction Suit No. 01/2009, whereby he has rejected a petition filed by the petitioner under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act). 2. The plaintiff in the Court below is the petitioner in the present application who preferred the eviction suit seeking eviction of respondent first Set/Defendant first Set from the suit premises on the ground of personal necessity as well as on the ground of default in payment of rent. During the pendency of the said eviction suit, the petitioner took recourse to the provisions under Section 15 of the Act which confers this jurisdiction upon the Court to pass any order for deposit of rent month by month at such rate as may be determined by it as also the arrears of rent both before or after the institution of the suit. From the impugned order, it appears that while rejecting the application filed under Section 15 of the Act, the Court below adjourned the matter to 9.6.2011 for hearing under Section 89 of the Code of Civil Procedure. 3. It is the case of the petitioner that his father Sk. Abdul Motalib acquired title over the suit property on the basis of “Hibba-Will-Ewaz” executed on 10.5.1952 by the two wives of Sk. Abdul Gafoor after the death of Sk. Abdul Gafoor. It is the case of the plaintiff that Sk. Abdul Gafoor had died issueless, whereafter two wives of Sk. Abdul Gafoor executed “Hibba-Will-Ewaz” in favour of the petitioners father. After the death of Sk. Abdul Motalib, i.e. the petitioners father, petitioner inherited the properties of his father including the suit property. Further case of the plaintiff is that the defendant first set is the tenant in the said house where he resides and runs a bakery shop and there is relationship of landlord and tenant between the petitioner and respondent no.1. This is specific case of the petitioner that respondent no.1 had been paying rent on month to month basis up to the month of November, 2008 and thereafter stopped paying the rent, which necessitated institution of eviction suit, also because the plaintiff required the suit premises for his personal occupation. 4. This is specific case of the petitioner that respondent no.1 had been paying rent on month to month basis up to the month of November, 2008 and thereafter stopped paying the rent, which necessitated institution of eviction suit, also because the plaintiff required the suit premises for his personal occupation. 4. The respondent no.1 filed his written statement and resisted the claim of the petitioner Md. Tara, disputing the very assertion that he was his landlord. He contended in the written statement that as a matter of fact the petitioners name was not Md. Tara and he was an imposter. He took further plea that Md. Tara alias Md. Haroon Rashid died in the year 1985. He took a plea that Md. Tara alias Haroon Rashid left behind him one daughter Akhtari Begum and one son Asgar Ali and said Asgar Ali died leaving behind his widow and four sons and two daughters. Accordingly, the defendant pleaded that the petitioner/plaintiff was a fictitious person claiming himself to be Md. Tara and that his real name was Akhtar Ali Son of Md. Isque. He relied upon certain documents including a finding in the criminal case bearing no 1580/1974 and subsequent order passed in Cr. Appeal No. 06 of 1994 to substantiate the plea the petitioner was imposter and which finding came to be affirmed in appeal also. 5. Learned counsel appearing on behalf of the petitioner has submitted that the Court below was obliged to exercise its power under Section 15 of the Act in the facts and circumstances of the case as the respondent first set did not dispute on the fact that he was the tenant in the said premises, but he disputed petitioners title over the suit property. He submitted that on the basis of material on record, petitioner was able to make out a prima facie, case of existence of landlord and tenant relationship and default in payment of rent and in such circumstance it was incumbent upon the Court below to have exercised power under Section 15 of the Act. 6. He submitted that on the basis of material on record, petitioner was able to make out a prima facie, case of existence of landlord and tenant relationship and default in payment of rent and in such circumstance it was incumbent upon the Court below to have exercised power under Section 15 of the Act. 6. Learned Senior Counsel appearing on behalf of Respondent no.1 reiterating the stand taken in the written statement as well as rejoinder to the petition under Section 15 of the Act filed in the Court below, has submitted that existence of a prima facie case is the fundamental requirement of exercise of the power under Section 15 of the Act. He submits, referring the impugned order itself, with regard to the stand of respondent no.1 that he had been paying rent to Bibi Samlun Nisha alias Sayeeda Khatoon to whom the house belonged and has been continuously paying rent to her heirs after her death i.e. Md. Sanjar Ali alias Manjar Ali. He submitted that the Court below was right in rejecting the petitioners application under Section 15 of the Act as it failed to make out a prima facie case, rather there was unimpeachable evidence on record to show that the petitioner lacked bonafide in his claim and he was in fact held to be imposter in a criminal proceeding. 7. Having heard learned counsel for the petitioner, learned Senior counsel appearing on behalf of Respondent no.1 and having perused the impugned order, I find that for the purpose of considering an application under Section 15 of the Act, the Court below took into account the fact that there was no mention of the date in the plaint, from which the tenancy commenced. The Court below also took into account the fact that the petitioner did not deny the stand of the respondent no.1 that he was convicted in a complaint case in a trial holding him to have impersonated as Md. Tara, which he was not. The said finding of the trial Court is said to have been affirmed in the appeal. The Court below also considered the fact that the identity of the plaintiff itself was under serious challenge, relief under the said provision could not be granted. Tara, which he was not. The said finding of the trial Court is said to have been affirmed in the appeal. The Court below also considered the fact that the identity of the plaintiff itself was under serious challenge, relief under the said provision could not be granted. It also took into account the fact that the petitioner had filed Title Suit for a declaration that he was son of said Hazi Sheikh Md. Abdul Motalib, as would be apparent from the plaint itself. 8. Bare reading of Section 15 of the Act would suggest that power of the Court to order for deposit of rent month by month and determination of rate of such rent is discretionary in nature which is certainly an interim measure during the pendency of the eviction suit. This Court in exercise of power under Article 227 of the Constitution of India is required to interfere with an order refusing to pass such interim order only in case of gross failure of justice. It is not to be exercised unless an error is found to be patent and self evident. The reason assigned in the impugned order for not granting relief under Section 15 of the Act cannot be said to be perverse. The Court below has considered that the identity of the petitioner itself was under serious challenge and the petitioner was not in a position to make out a prima facie case for the purpose of existence of such power as he did not disclose even the date of commencement of tenancy. I do not find the reason to be irrational and it cannot be said to be perverse in any circumstance. 9. I do not find any merit in this application. This application is, accordingly, rejected but without costs.