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2013 DIGILAW 296 (JHR)

Sumermall Jain v. Radha Rani Dutta

2013-02-28

P.P.BHATT

body2013
ORDER 1. The petitioners; by way of filing the instant writ petition under Article 227 of the Constitution of India, have prayed for quashing of the order dated 17.11.2011 (Annexure 4) passed by Additional Munsif 2nd, Ranchi in Eviction Suit No. 26 of 2006, whereby the learned court below struck off the defence of the defendant-petitioners as well as the order dated 18.8.2012 (Annexure-6) whereby learned court below refused to recall the said order. 2. Heard the learned counsel for the petitioners as well as respondents at length and perused the impugned order as well as the materials placed on record. 3. The learned counsel for the petitioner by referring explanation submitted before the court below, tried to justify that though reasonable explanation was given, the same was not accepted by the court below. It is further submitted that the court below has not properly appreciated the provision as contained in Section 15 of the Act while passing the impugned order. 4. In support of his submissions, he has referred to and relied upon two judgments of the Hon'ble Apex Court: (1) (1985)3 SCC 53 (2) (1988)4 SCC 698 On the other hand, the learned counsel for the respondents-plaintiffs have tried to justify the order passed by the learned court below and submitted that the language used in Section 15 of the Act is of mandatory nature and no discretion is left to the court below in such eventuality. It is submitted that discretion if any can be exercised provided there is a plausible explanation by the party, but in this case the reason assigned by the defendants cannot be treated as plausible explanation at all. The learned counsel for the respondents has also pointed out from the tabular form prepared in the counter affidavit filed by the respondent that the petitioner has committed default subsequently also. Learned counsel for the respondents in support of his argument has referred to and relied upon following judgments: (I) AIR 1988 SC 602 (II) 2000(1) PLJR 70 (III) AIR 2003 SC 1543 5. As against that, learned counsel for the petitioners defendants submitted that there is a delay of about 2 to 3 days and such delay has been caused on account of procedure followed by the registry in depositing the said amount and there is no willful default as such. As against that, learned counsel for the petitioners defendants submitted that there is a delay of about 2 to 3 days and such delay has been caused on account of procedure followed by the registry in depositing the said amount and there is no willful default as such. From perusal of record, it transpires that the petitioners-defendants have deposited the rent subsequent thereto regularly. 6. It appears from the record that on an application filed under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act), by the plaintiff-respondents the court below on 7.6.2010 passed an order and directed the defendant-petitioners to deposit the arrears of rent within 15 days i.e. on or before 20.6.2010, whereas in the instant case the said rent was deposited on 6.8.2010 i.e. after the delay of one and half month. 7. In the meanwhile, an application for struck off the defence of the defendant-petitioner was filed by the respondents-plaintiff on 9.7.2010 and in response thereto the present petitioners-defendants filed a reply on 20.12.2010, annexed to this petition vide Annexure-3. 8. On perusal of the said reply, it appears that the present petitioners-defendants have tried to justify the delay by rendering the explanation as provided in paragraphs 3, 4, 5 and 6 of the said reply wherein it is stated that after passing of order dated 7.6.2010, the file was handed over to the advocate of the High Court for advice to the defendant to deposit the rent and thereafter the required amount of rent was deposited on 6.8.2010. 9. Thus, in view of the explanation given by the petitioners-defendants, it appears that they have tried to justify• the delay by rendering explanation, which has not been accepted by the learned court below. But in the instant case it appears that the court below has not properly appreciated the facts in light of provision as contained in Section 15 of the Act, which has been referred by the learned counsel for the petitioners. 10. Moreover, the argument advanced by the learned counsel of the respondent regarding subsequent default in depositing rent also cannot be accepted, as it appears from the record that petitioners-defendants have subsequently deposited the rent regularly and delay of one or two days in depositing the rent appears to be due to procedural delay. 11. 10. Moreover, the argument advanced by the learned counsel of the respondent regarding subsequent default in depositing rent also cannot be accepted, as it appears from the record that petitioners-defendants have subsequently deposited the rent regularly and delay of one or two days in depositing the rent appears to be due to procedural delay. 11. As discussed hereinabove, in view of the settled proposition of law laid down particularly the judgment delivered in (1988)4 SCC 698 and looking to the facts and circumstances of the present case, this court is of the view that the order passed by the court below is required to be quashed and set aside. 12. The learned counsel for the respondents submitted that since the eviction suit is filed in the year 2006 and therefore necessary direction be issued upon the court below so as to conclude the suit within stipulated time for which learned counsel for the petitioners-defendants has no objection. 13. In view of the fact that eviction suit is of the year 2006, the court below concerned shall make endeavour to conclude the said suit within a period of six months from the date of receipt of a copy of this order. 14. With the aforesaid observations and directions, both the writ petitions stand disposed of.