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2013 DIGILAW 1286 (PAT)

Most. Quraisa Khatoon v. S. P. N. Singh

2013-11-12

AHSANUDDIN AMANULLAH

body2013
ORDER 1. Heard learned counsel for the petitioner and learned counsel for the respondent. 2. The present application under Article 227 of the Constitution of India is directed against the order dated 24.08.2012 passed by the Munsif-IIIrd, Patna in Eviction Suit No. 30 of 2011 by which the petition filed by the petitioner on 15.07.2011 under Order VII Rule 11 of The Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’) has been rejected. 3. The respondent had filed Eviction Suit No. 30 of 2011 against the petitioner claiming to be the owner of the suit premises on the basis of a registered sale deed of the year 1941. The petitioner contested the suit by filing a written statement in which a dispute was raised with regard to the title of the plaintiff (respondent) over the suit land. The petitioner also filed an application under Order VII Rule 11 of the Code for rejection of the plaint on the ground that the plaint did not disclose a cause of action. 4. Learned counsel for the petitioner submits that from a plain reading of the plaint it is clear that the suit has been filed under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘Act’) and thus when the Act prescribed a summary procedure, the basic criteria is that there should be a relationship of landlord-tenant between the parties. In the present case, he submits that when the suit premises had been settled in the name of the husband of the petitioner much earlier in the year 1934 itself, there is serious dispute with regard to the title and thus there cannot be a presumption with regard to landlord-tenant relationship. It is further submitted that in the entire plaint, there is no mentioning of the dates on which the petitioner or her husband came to be a tenant or the cause of action, that is, failing to pay the rent, arose. He thus submits, that for the reasons aforesaid, the plaint not disclosing a cause of action, the Court ought to have allowed the application under Order VII Rule 11 of the Code and rejected the plaint. 5. Learned counsel for the respondent raises a preliminary objection. He thus submits, that for the reasons aforesaid, the plaint not disclosing a cause of action, the Court ought to have allowed the application under Order VII Rule 11 of the Code and rejected the plaint. 5. Learned counsel for the respondent raises a preliminary objection. He submits that the present application under Article 227 of the Constitution of India is not maintainable for the reason that there is specific provision in the Code i.e., Section 115, under which the petitioner should have approached the High Court and her not doing the same, this application ought to be rejected as not maintainable. It is submitted that as per the proviso to Sub-section (1) of Section 115 of the Code - ‘Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings’. He submits that in the present case revision would lie as it would come under the exception - ‘where the order, if it had been made in favour would applying for revision, would have finally disposed off the suit or other proceedings’. He submits that the petition filed under Order VII Rule 11 by the petitioner if allowed, would have finally disposed off the suit as the plaint would have been rejected and thus the petitioner was required to file revision before the High Court and not move under Article 227 of the Constitution of India. Learned counsel has relied upon a decision of this Court in the case of Durga Devi vs. Vijay Kumar Poddar reported in 2010 (2) PLJR 954 , the relevant being at paragraph no. 39. Learned counsel, coming to the merits, submits that the plaint has since been amended and the reference to Section 14 of the Act has been deleted and thus now the suit shall proceed as a normal suit under the provisions of the Code. He further submits that ‘does not disclose a cause of action’ cannot be read to mean that every detail has to be enumerated in the plaint itself. He further submits that ‘does not disclose a cause of action’ cannot be read to mean that every detail has to be enumerated in the plaint itself. He submits that the plaint should only indicate the broad points which the plaintiff proposes to raise and rely upon in the trial. In the present case, it is submitted that a cause of action has been made out which is required to be tested during trial in accordance with law and the provisions of the Code. It is submitted that the plaintiff (respondent) has prima facie made a case inasmuch as he has a registered deed of sale with regard to the suit premises of the year 1941 and the other question with regard to induction of the husband of the petitioner as a tenant, non-payment of rent, subsequent and recurring cause of action due to non-payment of rent, are all matters which are required to be proved during the course of trial when the parties shall have full liberty to adduce evidence in their support. Learned counsel submits that rejection of the plaint should not be at the threshold so as to deprive a party from his case being heard on merits. For such proposition he has relied upon the decision of the Bombay High Court in the case of Crescent Petroleum Ltd. v. m. v. ‘MONCHEGORSK” reported in A.I.R. 2000 Bombay 161, the relevant being at paragraph no. 5 and also the decision of the Karnataka High Court in the case of B. Janaradhana v. Lalitha reported in A.I.R. 1984 Karnataka 120, the relevant being at paragraph no. 9. Learned counsel has also relied upon a decision of the full Bench of this Court (Ranchi Bench, as it then was) in the case of Ladu Gopal Kedia vs. Bibi Jaibunissa (F.B.) reported in 1991 (2) PLJR 1 , the relevant being at paragraph no. 56, in which it has been held that when the right has accrued to the plaintiff to file a suit for eviction of his tenant on the ground of personal necessity and/or the expiry of specific lease together with one or other grounds and if the plaintiff includes all these grounds in the plaint, the procedure prescribed in the Code shall have to be followed. He thus submits that the misconception and misgiving of the petitioner is unfounded as the Court will have to follow the procedure under the Code for deciding the suit in question. 6. Learned counsel for the petitioner, by way of reply reiterated his stand and submits that allowing the suit to proceed shall be an abuse of the process of the Court and further submits that he shall also rely on the decision of the Bombay High Court in the Case of Crescent Petroleum Ltd. v. m. v. ‘MONCHEGORSK” Supra inasmuch as the respondent has not made out an arguable case. 7. Having considered the rival contentions, this court finds substance in the submissions of learned counsel for the respondent. From the plain reading of the provisions of the Code specifically Section 115, it is apparent that in the present case when the petition filed by the petitioner under Order VII Rule 11, if allowed, would have finally disposed off the suit. The remedy in the present case for the petitioner was to move the Court in revision under Section 115 of the Code. Thus, the present petition under Article 227 of the Constitution cannot be said to be maintainable. However, after having heard the parties at length on merits, this Court would also like to state that from the plain reading of the plaint it cannot be said that it does not disclose a cause of action. The plaintiff (respondent) has been able to make out a prima facie case with regard to the title over the suit premises. Any dispute which may arise or objection taken by the petitioner, being the defendant, shall necessarily have to be decided in the suit as an issue which in the present case is not precluded inasmuch as even the issue in the suit relating to eviction of the petitioner shall now have to be heard under the provisions of the Code and not as a summary proceeding under the provisions of the Act. Even learned counsel for the respondent very fairly admits that the plaintiff himself has got the plaint amended by deleting the provisions of the Act and thus the petitioner cannot have any misgiving with regard to her not being given a fair opportunity of contesting and presenting her case. Even learned counsel for the respondent very fairly admits that the plaintiff himself has got the plaint amended by deleting the provisions of the Act and thus the petitioner cannot have any misgiving with regard to her not being given a fair opportunity of contesting and presenting her case. Further, this Court also finds that the decisions relied upon by learned counsel for the respondent are relevant in the facts and circumstances of the present case and support his stand. 8. For the reasons aforesaid, this Court does not find any merit in the application and the same stands dismissed.