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2014 DIGILAW 839 (JHR)

Mantu Singh v. Somona Nandi

2014-08-06

D.N.UPADHYAY

body2014
ORDER This Civil Revision has been preferred against the judgment dated 12.10.2012 and decree signed on 20.10.2012 by the learned Addl. Munsif, X, Ranchi in connection with Eviction Title Suit No. 12 of 2003 whereby the petitioner-defendant has been directed to vacate the suit premises and hand over the peaceful and physical possession of the same to the plaintiff/opposite party within 45 days from the date of order and to pay rent for the period from 08.08.2002 to the date of judgment with simple interest @ 8% p.a. The petitioner-defendant has also been directed to deposit arrears of electricity bill till the date of delivery of possession of the suit premises and he shall also be liable to pay future rent till the date on which vacant peaceful and physical possession of the suit premises is handed over to the plaintiff/opposite party and accordingly decree was prepared. 2. The case of the plaintiff/opposite party in brief is that the petitioner was inducted as tenant for a fixed period of lease commencing from 08.08.1997 and ending on 07.08.2002 in respect of one big room with ‘Varandah’ being portion of holding No.1204/D of ward No. VI (24), 69 Station Road, P.S. Chutia, District-Ranchi morefully and particularly described in the schedule of the plaint on monthly rent of Rs.2600/-per month payable in advance by the first week of each month and the lease deed was executed on 08.08.1997. 3. It is contended in the plaint that after expiry of the period of lease, notices were served upon the petitioner to vacate the suit premises and hand over the peaceful and physical possession of the same to the plaintiff and relief was sought under Section 11 (i) (e) of the Bihar Building Lease and Rent Control Act. The plaintiff has also made out a case that the petitioner has failed to pay electricity bills amounting to Rs.23,600/-which has fallen due till June, 2006. The suit has been valued at Rs.31,200/-being the amount equivalent to one year rent for the purpose of eviction and for that ad valorem court fee has been paid. The petitioner-defendant though filed written statement but did not adduce evidence in support of his contention made in the written statement. In the circumstances, I do not feel desirable to re-produce the averments made by the petitioner in the written statement. The learned Addl. The petitioner-defendant though filed written statement but did not adduce evidence in support of his contention made in the written statement. In the circumstances, I do not feel desirable to re-produce the averments made by the petitioner in the written statement. The learned Addl. Munsif, X, Ranchi has framed the following issues:- i. Is the suit as framed is maintainable ? ii. Has the Plaintiff got valid cause of action for the suit ? iii. Is there relationship of landlord and tenant in between the parties to the suit with respect to the suit property ? iv. Whether the defendant was inducted as a tenant on the basis of Registered Deed of Lease dated 08.08.1997 for a fixed period of five years and the tenancy come to an end in its expiry and the plaintiff is entitled to get a decree u/sec. 11 (i) (e) of the B.B. (L.R. & E) Control Act, 1982 ? v. To what relief or reliefs the plaintiff is entitled to ? and at the adjudication decreed the suit in favour of the plaintiff as indicated above. 4. The petitioner has challenged the impugned judgment and decree on the ground that plaintiff has to prove his own case and he cannot take help of weakness of the case of the plaintiff. Learned Munsif has not decided the suit in proper perspective. The finding of the Trial Court is banking on the weakness of the defendant’s case and, therefore, it cannot be sustained. Furthermore, the learned Munsif has also passed a decree for arrears, pendente lite and future rent in favour of the plaintiff which is purely an illegal finding. The plaintiff has not even pleaded and prayed for grant of any decree against arrears of rent or rent pendente lite and future. Since the judgment and decree suffers with illegality that may be set aside. 5. On the other hand, learned Counsel appearing for the Opposite Party has submitted that the petitioner cannot be permitted to argue a case which he has not made out before the Trial Court. The petitioner has filed written statement but no evidence to support the contention made in the written statement has been adduced. The plaintiff has proved his case by adducing oral and documentary evidence. The plaintiff has been examined as P.W.1 and lease deed has been proved and marked as Ext. 1. The petitioner has filed written statement but no evidence to support the contention made in the written statement has been adduced. The plaintiff has proved his case by adducing oral and documentary evidence. The plaintiff has been examined as P.W.1 and lease deed has been proved and marked as Ext. 1. Postal receipts have been marked Ext. 3, & 3 (a). Acknowledgment has been marked as Ext. 4. The lease deed executed by and between the parties has not been challenged and as per the deed of lease dated 08.08.1997 the tenancy was created for fixed period of 5 years which ended on 07.08.2002. Immediately thereafter notices were served against petitioner-defendant to hand over the vacant peaceful and physical possession of the suit premises but he failed to do so which created cause of action and the suit was brought for evicting the petitioner from the suit premises. The learned Munsif has rightly addressed all the issues and decreed the suit in favour of the plaintiff and the judgment and decree needs no interference. So far as decree with regard to payment of arrears of rent and the rent pendente lite and future and the arrears of electricity bill can well be considered under the prayer (c) “any other relief or reliefs for which the plaintiff be found entitled to may be granted” and for that issue no. 5 has been framed and accordingly decided in favour of the plaintiff. 6. I have gone through the lower court record and impugned judgment and decree. The case of the petitioner lies in a narrow compass because the petitioner has failed to make out any case in the Trial Court. In the circumstances he can only be permitted to demolish the case of the plaintiff/opposite party on the basis of material on record. Since the plaintiff has proved the lease deed (Ext. 1) which indicates that tenancy under the lease commenced on 08.08.1997 and ended on 07.08.2002. The execution of lease deed on the condition appearing therein has been proved by the plaintiff. After determination of the lease, notices (Ext. 2) was served upon the petitioner asking him to vacate the suit premises on account of determination of the lease and hand over the vacant peaceful and physical possession of the suit premises to the plaintiff. In order to prove that, notice (Ext.2) was served, postal receipts Ext. After determination of the lease, notices (Ext. 2) was served upon the petitioner asking him to vacate the suit premises on account of determination of the lease and hand over the vacant peaceful and physical possession of the suit premises to the plaintiff. In order to prove that, notice (Ext.2) was served, postal receipts Ext. 3 & 3 (a) and Acknowledgment (Ext.4) have also been proved. Since the plaintiff has successfully proved that the suit premises was given to the petitioner/defendant for a fixed period of lease, on determination of the lease the petitioner is liable to be evicted therefrom. The finding of the learned Trial Court on this issue is hereby affirmed. 7. From perusal of the plaint as well as the judgment and decree, I find that the plaintiff has not made prayer for arrears of rent or the rent pendente lite and future and for that neither suit was valued at nor ad valorem court fee was paid. Since it was not in the pleading, this issue was also not framed but surprisingly learned Trial Court by exceeding his jurisdiction travelled beyond the pleading and the issues framed and decreed the suit and directed the petitioner to deposit the arrears of electricity bills till the date of delivery of possession of the suit premises, to pay rent for the period from 08.08.2002 to the date of judgment with simple interest @ 8% p.a. till final realization of the amount and also to pay future rent from the date of judgment till the vacant peaceful and physical possession of the suit premises is handed over to the plaintiff with the same rate of interest i.e. 8% p.a. It is necessary to mention here that no ad valorem court fee on the monetary benefit for which the plaintiff has been made entitled to in the judgment and decree was filed. The Trial Court ought to have taken care of that neither specific prayer in this regard was there in the plaint nor court fee was paid for that. The argument advanced by learned Counsel for the opposite party that this relief can well be discussed under the heading “any other relief or reliefs which the plaintiff be found entitled to may be granted” cannot be accepted and it is out-rightly rejected. 8. The argument advanced by learned Counsel for the opposite party that this relief can well be discussed under the heading “any other relief or reliefs which the plaintiff be found entitled to may be granted” cannot be accepted and it is out-rightly rejected. 8. In the result, this part of the judgment and decree that the defendant shall pay rent for the period from 08.08.2002 to till the date of the judgment with simple interest @ 8% p.a. till realization, to deposit the arrears of electricity bill till the date of delivery of possession of the suit premises, the defendant shall also be liable to pay future rent from the date of judgment till vacant peaceful and physical possession of the suit is handed over to the plaintiff with the same interest @ 8% p.a. is hereby set aside. So far rest part of the judgment and decree that the petitioner shall hand over vacant possession of the suit premises to the plaintiff/opposite party within 45 days from the date of order, stands upheld. 9. With this modification in the judgment and decree, the revision stands dismissed. The order dated 05.04.2013 by which status quo has been directed to be maintained stands vacated. If the petitioner shall fail to hand over the vacant peaceful and physical possession of the suit premises to the plaintiff/ opposite party, the same shall be taken by taking recourse to the process of the Court.