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2015 DIGILAW 1291 (JHR)

Md. Wasim Firoz v. Kamal Anjum

2015-10-14

SHREE CHANDRASHEKHAR

body2015
Order : Aggrieved by order dated 11/13.07.2015 in Title (Eviction) Suit No. 07 of 2009 whereby, defence of the defendants has been struckoff, the present writ petition has been filed. 2. The petitioners are defendants in Title (Eviction) Suit No. 07 of 2009. Initially, Techno Agency through its proprietor namely, Firoz Alam was the sole defendant in the suit. The petitioners are legal heirs and successors of original defendant who died in November, 2011. The petitioners were substituted vide order dated 19.02.2014. In the pending suit a petition dated 11.09.2014 was filed for strikingoff the defence of the defendants for default in payment of rent in terms of order dated 05.01.2010. The said application has been allowed on 13.07.2015 and consequently, the evidence of the defendants has been closed. 3. Mr. Indrajit Sinha, the learned counsel for the petitioners submits that, after the death of the sole defendant, an application for substitution was filed on 19.02.2013 by the plaintiffs. The petitioners though were substituted vide order dated 19.02.2014, continued to deposit rent. The only instance of the alleged default in payment of rent which can be attributed to the petitioners is for the period between March, 2014 and April, 2014. The petitioners deposited rent for March, 2014 to August, 2014 that is, in advance for few months, on 23.06.2014 and therefore, delay in making payment for March, 2014 and June, 2014 was not intentional. The petitioners took a specific plea that for treatment of their mother the defendant namely, Md. Wasim Firoz who was making pairvi in the suit was out of station. In the above facts, the learned counsel for the petitioners contended that the default was not intentional. 4. Per contra, Mr. Ayush Aditya, the learned counsel for the respondents referred to application dated 11.09.2014 and submits that, the defendants committed default in payment of rent on as many as six occasions between the period January, 2013 to April, 2014. The repeated default on the part of the defendants would clearly establish willful default in payment of rent. Supporting the impugned order dated 13.07.2015, the learned counsel for the respondents submits that, the defendants have tried to explain delay between the period 22.04.2014 to 11.06.2014 however, they have failed to explain delay in payment of rent on previous occasions. It is contended that the default committed during the pendency of the suit must be dealt with seriously. Supporting the impugned order dated 13.07.2015, the learned counsel for the respondents submits that, the defendants have tried to explain delay between the period 22.04.2014 to 11.06.2014 however, they have failed to explain delay in payment of rent on previous occasions. It is contended that the default committed during the pendency of the suit must be dealt with seriously. Since the defendants have failed to offer sufficient and reasonable cause for default in payment of rent, their defence has rightly been struckoff. 5. Before adverting to the facts of the case, it needs no reiteration that provision under Section 15 of the Jharkhand Buildings (Lease Rent & Eviction) Control Act, 2000 is directory and not mandatory in nature. If the delay in complying with order under Section 15 is explained properly and the defendant offers sufficient cause for condoning the delay, defence cannot be struckoff. It is not in dispute that the sole defendant died in November, 2011 however, a petition for substitution of the sole defendant was filed only on 19.02.2013. Besides this, the said petition was allowed only on 19.02.2014. The petitioners thus, were not liable in law to comply with order dated 05.01.2010 whereby, the trial court directed the original defendant to deposit the rent in the following month before 15th day of each calender month. Though the petitioners continued to deposit rent for January, 2013 to August, 2014, the learned counsel for the petitioners has rightly contended that the petitioners can be held liable only for delay in payment for March, 2014 and April, 2014. The trial court has recorded a finding that the defendants have explained the delay for the period 22.04.2014 to 11.06.2014. It is not in dispute that the defendants deposited rent for March, 2014 to August, 2014 on 23.06.2014. Though, the plaintiffs pleaded default on six occasions between January, 2013 to April, 2014, the application for strikingoff defence was filed only on 11.09.2014. The suit was filed on the allegation that the defendant has stopped payment of rent from August, 2008. In the written statement the defendant asserted that the plaintiff refused to accept monthly rent and issue rent receipt and therefore, the defendant has been paying monthly rent through moneyorder to Kamal Anjum, the landlord. The trial court has recorded an erroneous finding that the defendant admitted default in payment of rent on several occasions. In the written statement the defendant asserted that the plaintiff refused to accept monthly rent and issue rent receipt and therefore, the defendant has been paying monthly rent through moneyorder to Kamal Anjum, the landlord. The trial court has recorded an erroneous finding that the defendant admitted default in payment of rent on several occasions. I further find that the trial court has failed to record a finding that the alleged default in payment of rent was deliberate and intentional. The explanation offered by the defendants that the defendant namely, Md. Wasim Firoz was out of station for treatment of their mother, has not been dealt with by the trial court and no finding has been recorded on this point. I am of the opinion that without recording a finding that the explanation offered by the defendants was improbable and not sufficient to condone the delay in making payment of rent, defendants' defence could not have been struckoff. The impugned order dated 11/13.07.2015 suffers from serious infirmity in law and accordingly, it is setaside. The defendants are permitted to lead evidence however, on payment of cost of Rs. 10,000/to the plaintiffs. 6. The writ petition stands allowed.