Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 196 (JHR)

Kapoor @ Kapur Chand Jain v. Anandita Sahay

2018-01-23

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. – Three different orders passed in Eviction Suit No.25 of 2011 have been challenged by the petitioner-defendants; primary order being order dated 16.02.2012 by which the defendants were declined leave to contest the suit. Subsequent orders have been passed on the applications filed by the defendants seeking recall of order dated 16.02.2012 and permission to file written statement. 2. Eviction Suit No.25 of 2011 was instituted for a decree of Khas possession over the Schedule-''A'' premises after ejecting the defendants through process of the court from the suit premises. Suit schedule property comprises one shop on holding 8/228 at Guru Govind Singh Road, P.S. & District- Hazaribagh. The plaintiff has pleaded that the defendant no.1 approached her husband for tenancy of one shop for starting a business which was let out to him on monthly rental of Rs.150/- for which rent agreement dated 02.06.1995 was executed. It is not in dispute that summons was served upon the defendants on 20.01.2012 and they appeared in the suit on 27.01.2012. They filed an application on 16.02.2012 seeking time for filing written statement, however, the trial court declined permission for filing an affidavit as provided under section 14(4) of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2000 on the ground that under Article 118 of the Limitation Act, affidavit seeking leave to contest must be filed within 10 days of service of summons. The suit was posted for the plaintiff''s evidence. It is stated that on 02.03.2012, the plaintiff examined her witnesses and the suit was fixed for arguments on 05.03.2012. On that day the defendants filed an application seeking recall of order dated 16.02.2012. This application has been rejected by an order dated 07.05.2012 on the ground that the trial court has no power to recall the said order. The defendants filed another application on 06.06.2012 purportedly seeking leave for filing written statement. This application has also been rejected by the trial court on 17.07.2012. Aggrieved, the defendants have approached this Court. 3. Mr. Ayush Aditya, the learned counsel for the petitioners submits that the procedure under section 14(4) of the Rent Act, 2000 is different from the summary procedure under Order XXXVII CPC and while so, 10 days'' time for filing an application seeking leave to defend cannot be imported into section 14(4) of the Rent Act. 3. Mr. Ayush Aditya, the learned counsel for the petitioners submits that the procedure under section 14(4) of the Rent Act, 2000 is different from the summary procedure under Order XXXVII CPC and while so, 10 days'' time for filing an application seeking leave to defend cannot be imported into section 14(4) of the Rent Act. To fortify this contention, the learned counsel for the petitioners has relied on decisions in Sachchidanand Shukla Vs. Sudha Sinha , (1998) 1 PLJR 126 and Kailash Prasad Chouhan Vs. Smt. Krishna Devi , (1998) 1 BLJR 740 . Another contention raised on behalf of the petitioners is that the procedure under Order XXXVII CPC can be resorted to only in cases of Hundies, Promissory Notes etc. and not in a case where the suit is instituted on the ground of default in payment of rent also. 4. As against the above, Md. Shamim Akhtar, the learned counsel for the respondent contends that the suit is primarily one for personal necessity of the plaintiff. No relief seeking arrears of rent has been sought by the plaintiff and it was only for the suit valuation that rent for one year has been taken into account, as per section 7(xi)(cc) of Court Fees Act, 1870. The learned counsel for the respondent has relied on the decisions in Devendra Kumar Sinha Vs. The State of Bihar and Ors., 1993 2 PLJR 219 and "The Delhi Cloth and General Mills Company Limited (now known as D.C.W. (Ltd.) Vs. Suraj Kuer and Anr. , (1986) PLJR 982. 5. Section 11 of the Rent Act, 2000 provides grounds on which a tenant is liable for eviction. Section 11(1)(c) provides that where a premises is reasonably and in good-faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord, the tenant is liable for eviction. Section 14(4) lays down that the tenant on whom summons is duly served, whether by ordinary mail or by registered post, shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court; in default the plaint averments for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction. Holding that section 14(4) of the Rent Act, 2000 provides a special procedure for trial of suits on the grounds under Clause (c) and (e) of section 11(1) of 2000 Act, a Division Bench of this Court in "Suraj Kuer" has held thus; "12 .Section 14 of the Act now provides special and exclusive procedure for trial of suits for eviction on the grounds of clauses (c) and (e) of section 11(1). This procedure is materially and substantially different from trials of suit on the ground specified in the other clauses of the said section There is no question of any written statement or a full dressed trial as such at the threshold stage and under sub-section (4) of section 14, a tenant cannot contest the eviction unless he first files an affidavit stating the ground on which he seeks to make such a contest and obtains a pre-requisite leave from the court as provided under sub-section (6) thereof." 6. The aforesaid view in Suraj Kuer has been reiterated by another Division Bench of this Court in Manik Roy Vs. Raghunandan Prasad, 1993 2 PLJR 215 , and it has been held that requirement of taking leave of the court as provided under section 14(4) is mandatory. The language of section 14(4) is somewhat similar to Rule 3(2) to Order XXXVII CPC. 7. Mr. Ayush Aditya, the learned counsel for the petitioners referring to the plaint averments, in particular paragraph nos.9 and 10, has contended that the eviction suit is not instituted only on the ground of personal necessity rather, ejection of the defendants is sought on the ground of default in payment of rent. To support this plea it is submitted that the plaintiff has specifically pleaded that the cause of action for instituting the suit arose on 28.02.2005, which was the last date for payment of rent for the month of January and February, 2005. Contention raised on behalf of the petitioners is that Eviction Suit No.25 of 2011 cannot be tried under summary procedure and section 14(4) of Rent Act, 2000 is not applicable in this case. 8. On the above contentions, suffice would be to record that there is no relief sought by the plaintiff for arrears of rent. Contention raised on behalf of the petitioners is that Eviction Suit No.25 of 2011 cannot be tried under summary procedure and section 14(4) of Rent Act, 2000 is not applicable in this case. 8. On the above contentions, suffice would be to record that there is no relief sought by the plaintiff for arrears of rent. Plaint averments in paragraph nos.9 and 10, at best, are statements of fact on default by the defendants in payment of rent for the month of January and February, 2005, which is apparent once it is found that the suit is valued in terms of section 11(1)(c) of the Rent Act. Under Article 118 of the Limitation Act period of limitation, for leave to defend a suit under summary procedure, is 10 days from when the summons is served. Part 1 to 3rd Division of the Schedule to the Limitation Act, 1963 which deals with applications in specified cases does not restrict Article 118 only to the applications under Order XXXVII CPC. The language under Article 118 are vide enough and it covers all the cases in which a suit is required to be tried under summary procedure. Section 14(4) of Rent Act, 2000 specifically mentions the expression "files an affidavit and obtains leave from the Court". Sub-section 4 to section 14 mandates that "when the defendant fails to appear in pursuance of the summons or to obtain leave from the court, the landlord shall be entitled to an order for eviction". The procedure provided under section 14(4) is summary in nature, is no longer in the realm of dispute. 9. In "Kailash Prasad Chouhan" and "Sachchidanand Shukla" cases, one of the issues raised before the Court was whether on the first date of appearance the defendant is required to file an application seeking leave to defend. No doubt, this is not a requirement in law rather, under Article 118 ten days'' time is granted to the defendant to file such an application. Only after the affidavit seeking leave to defend is granted by the Court, the defendant can be permitted to file the written statement. The contention raised on behalf of the defendants, that application dated 06.06.2012 was filed taking a leaf from order dated 07.05.2012 whereunder the trial court has observed that the defendants were not debarred from filing written statement, is an argument in desperation. The contention raised on behalf of the defendants, that application dated 06.06.2012 was filed taking a leaf from order dated 07.05.2012 whereunder the trial court has observed that the defendants were not debarred from filing written statement, is an argument in desperation. Such plea has rightly been brushed aside by the trial Judge observing that once the defendants failed to file an affidavit in terms of section 14(4) of the Rent Act, 2000 read with Article 118 of Limitation Act, 1963, they could not have been permitted permission to file written statement. 10. Above all, the period of limitation as provided under the Schedule appended to Limitation Act, 1963 cannot be extended by the Court. Under Rule 3 to Order XXXVII CPC also ten days'' time from date of service of summons is provided for filing an affidavit for leave to defend. 11. In the above facts, finding no infirmity in the impugned orders dated 16.02.2012, 07.05.2012 and 17.07.2012, the writ petition is dismissed.