Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1564 (JHR)

Chhatu Ram Verma v. Istekhar Hussain

2019-09-11

SUJIT NARAYAN PRASAD

body2019
JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 30.07.2016 passed in Eviction Suit No. 15/2013 by the Munsif, Giridih, is under challenge, whereby and whereunder the petition filed by the petitioner dated 21.03.2015 by making an objection of acceptance of the written statement filed on behalf of the respondents/defendants, has been rejected. 2. The brief facts of the case of the petitioner as per the pleading made in the writ petition is that he has filed the eviction suit for eviction of the respondents from the suit premises under Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 in which upon notice, the respondents/defendants have appeared and filed the written statement which has been accepted by the trial Court. The petitioner/plaintiff has made an objection vide petition filed on 21.03.2015 stating therein that as per the provision as provided under Section 14 to the Act, 2000, a leave is required to be obtained from the trial Court before accepting the written statement but no such leave has been obtained by the Court, therefore, the written statement filed on behalf of the defendant may not be accepted. The said petition has been objected by the defendant vide rejoinder filed in this regard on 06.06.2015 wherein inter-alia it has been stated that there is requirement of leave of the Court before filing the written statement since the suit for eviction has been filed on the ground of default in making payment of rent and as such, it will not come under the fold of special provision for eviction as provided under Section 14 to the Act, 2000. The trial Court has rejected the petition filed by the petitioner dated 21.03.2015 vide order dated 30.07.2016 against which, the present writ petition has been filed under Article 227 of the Constitution of India under its revisional jurisdiction. 3. Mr. The trial Court has rejected the petition filed by the petitioner dated 21.03.2015 vide order dated 30.07.2016 against which, the present writ petition has been filed under Article 227 of the Constitution of India under its revisional jurisdiction. 3. Mr. R.N. Sahay, learned Senior Counsel appearing for the petitioner, has against the ground in assailing the aforesaid order by referring to the plaint which has been brought on record by way of supplementary affidavit which has been filed under Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 and as such, the suit will be said to be under the provision of Section 14 to the Act, 2000 and hence the trial Court ought not to have any misconception about the requirement to take leave under Section 14 to the Act, 2000, since the suit has been filed on the ground of bona-fide requirement and therefore, a regular provision of acceptance of the written statement as provided under Section 11 (c) of the Act, would not be applicable but the trial Court has not appreciated the aforesaid aspect of the matter and has considered the contents of the plaint, wherein although, it has been referred that the defendant has filed the written statement for making payment of rent but the suit is for bona-fide requirement and as such, it will be said to be under Section 14 to the Act, 2000. Further, the ground has been raised in substantiating the aforesaid argument by referring to the provision of Section 7 of the Stamp Act as also referring to paragraph 23 of the plaint whereby and whereunder, the petitioner has declared the value of suit premises which is of 12 months rent @ 300 per month which stands at Rs. 3,600/- and accordingly, has paid ad-valorem court fee thereon for the purpose of jurisdiction and trial. Further, there is no prayer sought for in the plaint for recovery of the rent and as such, it cannot be said that the suit has been filed on the ground of default in making payment of rent. The submission has been made on the basis of the aforesaid two grounds since the same has not been taken into consideration by the trial Court, the order impugned is not sustainable in the eye of Law. 4. The submission has been made on the basis of the aforesaid two grounds since the same has not been taken into consideration by the trial Court, the order impugned is not sustainable in the eye of Law. 4. This Court having heard the learned senior counsel for the petitioner and after going through the pleadings made in the writ petition as also the finding recorded therein is of the view that before entering into the legality and propriety of the order, the provision of Section 11 as also Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000 needs to be referred herein which reads as hereunder:- “11. Eviction of tenants - (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947) and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction there from except in execution of a decree passed by the Court on one or more of the following grounds:- (a) for breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment. (b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behaviour the tenant is responsible. (b) where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of the tenant or of any person residing with the tenant or for whose behaviour the tenant is responsible. (c) where the building 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: Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5. Explanation I - In this clause the word "landlord" shall not include an agent referred to in clause (f) of Section 2. Explanation II - Where there are two or more premises let out by the landlord, it will be for the landlord to choose which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference. (d) where the amount of [two months rent] lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16. (e) in case of a tenant holding on a lease for a specified period, on the expiry of the period of the tenancy. (f) the landlord requires the premises in (Substituted by Act 4 of 1994 for "three months") order to carry out any building work at the instance of the Government or the Municipality or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such building work cannot be properly and fully carried out without the premises being vacated. (2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building he shall give fifteen days previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall under intimation to the landlord within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building: Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building. (b) Where a building is vacated by a servant of the Government any person occupying such building other than the person referred to in clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed: Provided that after a landlord has been or is deemed to have been put in possession of such building, he may let it to any person. 14. Special procedure for disposal of cases for eviction on ground of bona-fide requirement - (1) Every suit by a landlord for the recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of section 11 shall be dealt with in accordance with the procedure specified in this section. (2) The Court shall issue summons in the prescribed form in every suit referred in sub-section (1) without delay. (3) (i) The Court shall, in addition to, and simultaneously with the issue of summons for service on the tenant or tenants, also direct the summons to be served by registered post with acknowledgement due, addressed to the tenant or his agent empowered to accept the service at the place where the tenant or his agent actually and voluntarily resides or carries on business or personally works for gain and may, if the circumstances of the case so require also direct the publication of the summons in the official gazette or in newspapers circulating in the locality, in which the tenant is last known to have resided or carried on business or personally worked for gain. (ii) When an acknowledgement purporting to be signed by the tenant or his agent is received back with an endorsement purporting to have been made by a postal employee to the effect that the tenant or his agent has refused to take delivery of the registered article, the court may declare that there has been a valid service of summons. (4) 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 as hereinafter provided; and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid. (5) The Court shall give to the tenant leave to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in clauses (c) and (e) of sub-section (1) of Section 11. (6) When leave is granted to the tenant to contest the suit, the latter may, within fifteen days from the date of the order, pray after filing the requisite Court fee, required for a written statement that the affidavit may be treated as the written statement or if he chooses to file a separate written statement he may do so within fifteen days of the grant of leave to contest the suit and if he does not file the written statement within the period he shall not be allowed to do so later. The Court shall thereafter commence the hearing of the suit as early as practicable. (7) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence. The Court shall thereafter commence the hearing of the suit as early as practicable. (7) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) or any other law, the Court while hearing a suit under this section shall follow the practice and procedure of a Court of Small Causes including the recording of evidence. (8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in this section: Provided that on an application being made within sixty days of the date of the order of eviction the High Court may for the purpose of satisfying itself that an order under the section is according to law, call for the records of the case and pass such order in respect thereto as it thinks fit. (9) Where no application has been made to the High Court in revision as laid down in sub-section (8) above, the Court, which passed the order for eviction may exercise the powers of review in accordance with the provision of Order XLVII of the First Schedule to the Code of Civil Procedure, 1908 (V of 1908): Provided that no such review shall be made unless an application is filed for the same within ninety days of the date of order of eviction.” Section 11 provides for provision for eviction of tenants on various grounds, one of the ground is default in making payment of rent as would appear from the provision of Section 11 (1) (d) of the Act, 2000. Section 14 Provides for special procedure for disposal of cases for eviction on ground of bona-fide requirement. It is evident from the aforesaid provision that every suit by a landlord for recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of Section 11 shall be dealt with under the provision of Section 14 of the Act, 2000. It is evident from the aforesaid provision that every suit by a landlord for recovery of possession of any premises on the ground specified in clause (c) or (e) of sub-section (1) of Section 11 shall be dealt with under the provision of Section 14 of the Act, 2000. The differences between Section 11 and Section 14 is that if the suit will be allowed to proceed under Section 11, the regular proceeding of suit will go, meaning thereby, on issuance of notice upon the defendants, the written statement is required to be filed within the stipulated period as provided under the provision of Order VIII of the C.P.C. as also the applicable Rules contained therein, but if the suit would be filed under the provision of Section 11 (1) (c) (e) that will come under the fold of bona-fide requirement, in that circumstances, the tenant upon notice by the trial Court will make prayer for grant of leave to contest the suit as would appear from the provision of Section 14 (5) (6) of the Act, 2000. It is evident that the Court will grant leave to the tenant to contest the suit if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction on the grounds specified in clauses (c) and (e) of sub-section (1) of Section 11. Further, the leave is granted to the tenant to contest the suit, latter may, within the fifteen days from the date of the order, prays after filing the requisite Court fee, required for a written statement that the affidavit may be treated as the written statement or if he chooses to file a separate written statement he may do so within fifteen days of the grant of leave to contest the suit and if he does not file the written statement within the period he shall not be allowed to do so later. The Court shall thereafter commence the hearing of the suit as early as practicable. The Court shall thereafter commence the hearing of the suit as early as practicable. These two provisions provide the two process of proceeding in the trial Court while Section 11, if eventualities of eviction is not on the ground of Section 11 (1) (c) and (e) then a process for filing written statement as per regular suit will proceed but when the ground for eviction is as per the ground reflected under the provision of Section 11 (1) (c) and (e), the defendant after appearance will have to seek leave of the trial Court by way of filing an affidavit that he requires to file a separate written statement, he may do so with the leave of the Court. So far as the issue which has been raised by the petitioner in this case regarding acceptance of the written statement filed by the defendants since according to the petitioner, the suit is under Section 14 of the Act, 2000, therefore, leave is required to be obtained by the defendant from the trial Court by way of filing an affidavit and written statement.” 5. According to the petitioner, the suit since has been filed under Section 14 of the Act, 2000, therefore, the same will prevail and Section 14 since provides for special procedure for disposal of cases for eviction on the ground of bona-fide requirement, the leave as required under sub-section (5) and sub-section (6) of Section 14 will have to be followed but the same has not been followed rather the written statement has been accepted which has been filed on behalf of the defendant and hence the trial Court has committed gross illegality by doing that. 6. This Court, has appreciated the argument vis-a-viz the legal position as also the contents of the plaint which has been brought on record by way of supplementary affidavit as contained under Annexure-6. 7. It is evident from the plaint that the eviction suit has been filed under Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000. This Court, has appreciated the argument vis-a-viz the legal position as also the contents of the plaint which has been brought on record by way of supplementary affidavit as contained under Annexure-6. 7. It is evident from the plaint that the eviction suit has been filed under Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2000. It further transpires from the contents thereof as the statement made at paragraph-17 onwards, it would be evident that the cause of action which has been reflected therein for making payment of rent for better appreciation by making statement at paragraph 17, 18, 19 and 20 to the plaint needs to refer herein which reads as hereunder:- “(17) That the defendant constructed residential house and completed the same in the year 1998 and partly shifted in the police line building but did not vacated the same rather came on paying rent usually up to 2005 in month of December. (18) That the defendants stopped payment of rent from the month of January 2006 and kept the tenanted premises under lock and key. (19) That several times right from January 2006-2010 made request for vacating the tenanted premises by the plaintiff to the defendants at police line residence and lastly in the month of February, 2013, then the defendants started keeping auto-rickshaw by demolishing boundary wall for the passage of entering auto-rickshaw and fitted crocket sheeted gate, local people such as Ramchandra Ram Verma, Anrath Tiwary and various other persons are witness in that effect and have seen when the defendants was demolishing the boundary for the purpose of keeping auto-rickshaw in the compound wall. (20) That the defendants from August 25 started keeping animals in the tenanted premises but did not paid rent up to the month of August 2013, hence necessity of this suit.” It further appears from paragraph 21 which contains a statement made by the plaintiff to the effect that the tenanted premises became old and the plaintiff requires the same for their personal use and occupation for the benefit of their family by remodeling the same. 8. The learned senior counsel appearing for the petitioner has given much emphasis upon the paragraph 21 of the plaint in support of his argument. 9. 8. The learned senior counsel appearing for the petitioner has given much emphasis upon the paragraph 21 of the plaint in support of his argument. 9. It further appears from paragraph 22 wherein the petitioner has made reference about the date of the cause of action which according to the petitioner had arisen in the Month of January, 2006. Thus, it is evident that the cause of action arisen for the petitioner for filing the suit is, as per the petitioner, which arisen in the Month of January, 2006 and if the statement made at paragraph 17 and 18 thereof will be considered, it would be evident therefrom that the defendant has made payment of rent usually up to the Month of December, 2005 and stopped payment of rent from the Month of January, 2006 and kept the tenanted premises under lock and key. These two averments made at paragraph 17 and 18 if read together with the statement made at paragraph 22, there is no difficulty in coming to the conclusion that the cause of action for filing the suit is for default in making of rent. Although, the averment has been made at paragraph 21 that since tenanted premises became old and the plaintiff requires the same for their personal use and occupation for the benefit of their family by remodeling the same. 10. This Court has considered the statement made at paragraph 21 and considered the aforesaid submission in order to come to the logical end as to whether if the tenanted premises became old and the plaintiff will require it for personal use after remodeling the same will be said to be bona-fide or reasonable requirement. The bona-fide or reasonable requirement will be said to be bona-fide one if the landlord has got no alternative premises for accommodation and the premises is required immediately, but as would appear from the statement made at paragraph 21 of the plaint, the requirement is only after remodeling which does suggest that the premises is not required immediately for its use as such it is not a case of bona-fide requirement. Further as would appear from the bare reading of the plaint as per statement made at paragraph 17, 18, 19 along with paragraph 22 wherein the cause of action to file suit said to have arose in the Month, of January, 2006, hence the period of default in making payment of rent will be said to be the cause of action for filing the eviction suit. 11. In view thereof, this Court is of the view that merely by making an averment at paragraph 21 of the plaint to the effect that the premises has become old and the same required for their personal use after remodeling the same cannot be construed to be a ground for filing the eviction suit. Further the question as has been agitated by the learned senior counsel for the petitioner that under the provision of Law the reference of Act, 2000 has been made and therefore, it would be said to be the eviction suit under Section 14 of the Act, but this Court is of the view that merely by referring to the provision of Law and if the contents of the plaint is quite different to that of the provision of Law, the content is to be seen not the provision of Law. Even accepting the suit has been filed under Section 14 of the Act, 2000 which provides for eviction on the ground of bona-fide requirement the same will not prevail upon the averment and the ground agitated in the plaint in various paragraphs as referred hereinabove. 12. So far as the contention raised by the petitioner regarding the Stamp Act, this Court is of the view that the contents of the plaint as has been enumerated hereinabove would prevail for the purpose of considering the applicability of the provision of Section 11 or Section 14 as the case may be. 13. The further argument has been raised by making reference of Order 7 Rule 8 of the C.P.C. and by making reference thereof which has been submitted that since no relief about the recovery of the arrears of rent has been made it cannot be construed to be on the ground of default in making payment of rent. It has been evident from the provision of Order 7 Rule 8 of the C.P.C. which provides a provision to insert relief to be founded on separate grounds. It has been evident from the provision of Order 7 Rule 8 of the C.P.C. which provides a provision to insert relief to be founded on separate grounds. As per the said provision where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, it will be stated as far as may be separately and distinctly. 14. So far as the said contention is concerned, the same is to be reflected by the plaintiff and if there is any error in seeking such relief, he cannot be allowed to take advantage at the subsequent stage, the fact remains, although no relief to the effect for making payment of rent and if such relief has been made, the averment made at paragraph 17 onwards in the plaint except paragraph 21, cannot be said that the eviction suit has been filed on the ground of bona-fide requirement. 15. The petitioner dated 21.03.2015 has been filed by making such objection which has been rejected by the trial Court by considering the rejoinder filed by the defendant as dated 06.06.2015 by holding therein and making observation therein about the reference of statement made at paragraph 17 18, 19 and 20 to the plaint whereby and whereunder, the petitioner has made specific statement about non-payment of the rent from the Month of January, 2006 and therefore, the objection as has been raised by the petitioner vide petition dated 21.03.2015, has been rejected. 16. This Court, on the basis of the detailed discussion made hereinabove both on Law and fact, is of the view that while rejecting the petition dated 21.03.2015, the trial Court has committed no error warranting any interference by this Court under its revisional jurisdiction conferred under Article 227 of the Constitution of India. 17. In view thereof, the writ petition fails and hence it is dismissed.