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2019 DIGILAW 1082 (JHR)

Raja Hussain Ansari v. Shaligram Mishra

2019-05-17

H.C.MISHRA

body2019
ORDER : Heard learned counsel for the defendant petitioner and the learned counsel for the plaintiff opposite party. 2. The defendant petitioner is aggrieved by the impugned order dated 27.11.2017, passed by the learned Civil Judge, Senior Division-I, Pakur, in Title (Eviction) Suit No. 45 of 2013, whereby, the plaintiff's suit for eviction of the defendant from the suit property, on the ground of personal necessary, filed under Section 11(1)(c) of the Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000, (herein after referred to as the 'Act'), was decreed by the Court below, rejecting the application and affidavit seeking leave to contest the suit, filed by the defendant under Section 14 (4) of the said Act. The Court below has held that as the said application and affidavit were filed by the defendant without supporting documents, no weightage could be given to the plea of the defendant that the plaintiff landlord did not require reasonably and in good faith, the suit premises for his personal necessity. 3. The facts of this case lie in a short compass. The suit property belonging to the plaintiff was given on rent to the defendant, and the eviction suit under Section 11(1)(c ) of the aforesaid Act was filed on the ground of personal necessity, for running a shop by the son of the plaintiff. The defendant had disputed the fact in his petition seeking leave to contest the suit, filed under Section 14(4) of the aforesaid Act, stating that earlier also, the defendant was forced to vacate 114 sq.ft. of the tenanted portion on the same ground of personal necessity for running the shop by the son of the plaintiff, but subsequently, the vacated portion was leased out by the plaintiff. Thus, disputing the fact that the plaintiff required the suit premises for the personal necessity, and also stating that there were other vacant portions in the suit premises, which could be used by the son of the defendant, the application under Section 14(4) of the Act was filed by the defendant, which was rejected by the Trial Court below, on the aforesaid ground. The Court below, accordingly, directed the defendant petitioner to hand over the vacant portion of the suit property within thirty days to the plaintiff opposite party. 4. The Court below, accordingly, directed the defendant petitioner to hand over the vacant portion of the suit property within thirty days to the plaintiff opposite party. 4. Learned counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the petitioner had made out a cogent ground for non-suiting the plaintiff landlord from claiming eviction, and thus, the suit could not have been decided without granting leave to the defendant petitioner to contest the suit, so that the defendant could file his written statement, and the evidence could be adduced by both the sides. In support of his contention, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court in Vijay Kumar Ahluwalia & Ors. Vs. Bishan Chand Maheshwari & Anr., reported in (2017) 3 SCC 189 , laying down the law as follows:- "18. It is a settled principle of law that while considering the grant of leave to contest the eviction proceedings under the Rent Laws, the Authority / Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest and if the Authority / Court finds that the grounds raised prima facie disclose a defence which, if accepted, may result in non-suiting the landlord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. In this case, we find that the appellant tenants have made out such grounds and are, therefore, entitled for grant of leave to contest the eviction proceedings filed by Respondent 1 against them on merits." (Emphasis supplied). Placing reliance on this decision, learned counsel submitted that the impugned order passed by the Trial Court below cannot be sustained in the eyes of law. 5. Learned counsel for the plaintiff opposite party, on the other hand, has opposed the prayer, submitting that in the application and the affidavit filed by the defendant petitioner in the Court below, under Section 14 (4) of the Act, no cogent ground was made out for granting any leave to the petitioner. 5. Learned counsel for the plaintiff opposite party, on the other hand, has opposed the prayer, submitting that in the application and the affidavit filed by the defendant petitioner in the Court below, under Section 14 (4) of the Act, no cogent ground was made out for granting any leave to the petitioner. Learned counsel has also placed reliance upon the decisions which have been referred to in the impugned order itself, particularly, the one by the Patna High Court in Sitaram Choudhary Vs Smt. Bhagwati Devi & Anr., reported in 1986 BBCJ 595 , wherein it had been held as follows:- “----------. It is true that the Court has to confine itself only to the averments made in the affidavit and reply, if any, but leave shall be granted only if the affidavit filed by the tenant discloses such facts as would disentitled the landlord from recovery of possession.-------------. In my opinion, tenant must make out a prima facie case in his affidavit as would disentitle the landlord from obtaining an order for eviction. He is not required to prove the case at that stage but must make out a plausible prima facie defence. ----------.” It is submitted by the learned counsel that since the grounds taken by the defendant petitioner were only frivolous and baseless grounds, the Court below has rightly rejected the application filed under Section 14 (4) of the Act, and has decreed the suit in favour of the plaintiff. 6. Having heard learned counsels for both sides and upon going through the impugned order, I find that though the relationship of landlord and tenant is an admitted position in this case, but the fact remains that the defendant had made out a specific case that earlier also he was forced to vacate 114 sq.ft. of the space on the same ground of personal necessity for opening the shop by his son, but the said portion was subsequently leased out by the plaintiff. 7. of the space on the same ground of personal necessity for opening the shop by his son, but the said portion was subsequently leased out by the plaintiff. 7. In my considered view, there being no denial of this fact, the defendant had made out a valid prima facie ground for non-suiting the plaintiff landlord from claiming eviction, and it was a fit case in which the leave ought to have been granted to the defendant to contest the suit, by filing his written statement, and the suit ought to have been decided on merits, giving fair opportunity to both the sides to lead their evidences, if any. The case of the defendant petitioner is fully covered by the decision of the Apex Court in Vijay Kumar Ahluwalia's case (supra), wherein the law has been laid down that the Court is not expected to examine the merits and demerits of the grounds raised in the application for grant of leave to contest the suit, and if the Court finds that the grounds raised prima facie to disclose a defence which, if accepted, may result in non-suiting the land lord from claiming eviction, the tenant is entitled to obtain leave to contest the eviction proceedings on merits. Similar is the view expressed even in the decision relied upon by the learned counsel for the plaintiff opposite party. Simply because the appellant had not filed any document along with his application and affidavit, the application filed by the petitioner could not have been rejected by the Court below, as it is equally well settled that at that stage, the evidence was not required to be looked into at all. As such, the impugned Order decreeing the suit, rejecting the application filed by the defendant seeking leave to contest the suit, cannot be sustained in the eyes of law. 8. Accordingly, the impugned order dated 27.11.2017, passed by the learned Civil Judge, Senior Division-I, Pakur, in Title (Eviction) Suit No. 45 of 2013, is hereby, set aside. The matter is remanded to the Court below for deciding the application filed by the defendant under Section 14(4) of the Act afresh, in accordance with law, and to proceed further from that stage onwards. 9. This civil revision accordingly, stands allowed. Consequently, the interlocutory application (I.A No.3690 of 2018) filed for staying the execution proceedings in the Court below, also stands disposed of.