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2013 DIGILAW 632 (PAT)

Prakash Kumar Sinha v. Hiralal Sah

2013-05-17

VIKASH JAIN

body2013
ORDER The present writ petition has been filed for quashing the orders dated 04.02.2013 and 29.5.2012 passed by learned Sub-Judge 1st, Patna in Eviction Suit No. 120/2011 (Annexure-6 & 4) by which, inter alia, the learned Court had rejected the petition under Section 14(4) of B.B.C. Act, filed on behalf of the petitioner for granting to leave to contest the suit on the ground that earlier similar petition has already been rejected on 29.5.2012. 2. Learned senior counsel Mr. T.N. Mattin, appearing for the petitioner submits that the application dated 17.2.2012 (Annexure-2), albeit a misconceived one, was filed for leave to file a written statement which was however rejected in terms of the impugned order dated 29.5.2012 (Annexure-4) on the ground that the same had been filed without affidavit nor had the grounds for seeking leave to contest the suit been stated therein. It is therefore submitted that the said petition could not be treated as being one under Section 14(4) B.B.C. Act. 3. Learned counsel for the petitioner further submits that the petition under Section 14(4) of the B.B.C. Act was filed on 13.09.2012 (Annexure ‘5’) with the requisite affidavit and fulfilling the criteria thereof. The same has however been rejected by the impugned order dated 4.2.2013 (Annexure-6) only on the ground that the earlier application dated 17.2.2012 had been disposed of on 29.5.2012, and it was therefore not permissible nor reasonable to pass further orders on the second application. 4. It is, therefore, submitted on behalf of the petitioner that inasmuch as no limitation was prescribed for filing the petition under Section 14(4) of the Act, the same was filed on 13.9.2012 and the learned Court has proceeded on an erroneous footing by treating the earlier application dated 17.2.2012 as one under Section 14(4) of the Act. Reliance has been placed on the decision reported in 1989 PLJR 489 (Rajendra Mahto Vs. Hari Narayan Mahto) that there is no limitation for filing affidavit or obtaining the leave of the Court for the purposes of under Section 14(4) of the Act. 5. Learned counsel for the sole respondent files a counter affidavit and supports the impugned order. It is submitted that the repeated applications by the petitioner are calculated only to delay the trial. 5. Learned counsel for the sole respondent files a counter affidavit and supports the impugned order. It is submitted that the repeated applications by the petitioner are calculated only to delay the trial. It is submitted that in between the application dated 17.02.2012 and 13.09.2012 yet another application dated 12.6.2012 (Annexure-C to the counter affidavit) was also filed by the petitioner seeking leave to contest the eviction suit which, however, was dismissed by order dated 20.08.2012 for non-prosecution as the defendant-petitioner did not appear when the case was called. The petitioner’s application dated 13.9.2012 is thus in fact the third application and in reality a repetition of the second application dated 12.6.2012 which stood dismissed for default, and has been filed only to cover up the lacuna. It is submitted that so long as the order dated 20.08.2012 passed on the second application dated 12.06.2012 stands which the petitioner has not sought recall of, there is no error in the impugned order as passed. Reliance has also been placed on the decision reported in 1995 (1) PLJR 853 (Dilip Kumar Modi Vs. Sadashiv Prasad & Anr.) which recognizes that even though filing of petition for leave to contest the suit on the very first date of appearance is not mandatory, yet the same may be permitted on subsequent dates provided prior leave of the Court is obtained for filing petition on subsequent date. It is submitted that in the facts and circumstances of the case neither any such prayer has been made nor any order passed specifically permitting the petitioner to file the petition under Section 14(4) on subsequent dates. Reliance is also placed on 2010 (1) PLJR 33 (Dhiraj Singh Ruhela Vs. Brij Kishore Kumar Jain) for the proposition that the provisions of Section 14(4) of the Act are mandatory. 6. Having heard the rival submissions of the parties, this Court is in agreement with the submissions of learned counsel for the respondent. It is not in dispute that the second application dated 12.6.2012 filed by the petitioner was for seeking leave to contest the suit as contemplated under Section 14(4) of the Act, but stood dismissed on 20.08.2012 which order has not been questioned and continues to be in force. It is not in dispute that the second application dated 12.6.2012 filed by the petitioner was for seeking leave to contest the suit as contemplated under Section 14(4) of the Act, but stood dismissed on 20.08.2012 which order has not been questioned and continues to be in force. It has also not been shown on behalf of the petitioner that leave of the Court was sought, and so granted, for filing a petition under Section 14(4) of the Act on subsequent dates. 7. For the reasons stated in the impugned orders, this Court is not inclined to interfere with the same. It is well settled that while exercising jurisdiction under Article 227 of the Constitution of India this Court will not convert itself into a Court of Appeal or a Court of Error. As long as the view taken in the impugned order of the learned Appellate Court and the Sub-ordinate Court is one tenable in law, this Court will not interfere to substitute its own view. 8. The writ petition accordingly stands dismissed.