Judgment:
ORDER
V.K. Gupta, J.
1. This revision petition in terms of Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 has been filed by the defendant tenant against the Order dated 15.12.1997 passed by the learned Munsif, Ranchi, in Eviction Suit No. 26 of 1995 whereby the plaintiff- respondents' suit has been decreed ex parte with costs and the defendant-petitioners were directed to deliver the vacant possession of the suit premises to the plaintiffs within three months.
2. Brief facts giving rise to the filing of this Revision Petition are that the plaintiffs filed a suit for eviction of the defendants from the suit premises, which is a shop situated on the Main Road of Ranchi Town. The suit was filed in terms of Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act) on the ground that the plaintiffs reasonably and in good faith required the suit property for the use and occupation of their sons. Even though Section 11 of the Act provides for filing of the suit and passing of the decree of eviction on one or more of the grounds enumerated therein (the suit has been filed in terms of the grounds mentioned in Clause (c) of Sub-section (1), the procedure for the conduct and defence of such a suit has been provided in Section 14 of the Act. For the above purpose, Sub-section (4) of Section 14 of the Act is vitally important, inasmuch as it is under this sub-section that a tenant on whom the summons has been duly served is given the option of applying for leave to contest the suit by filing an affidavit in which the grounds for such contest are to be incorporated. Sub-section (4) of Section 14 of the Act clearly and unambiguously provides that if either the tenant-defendant does not appear in pursuance of the summons, or does riot obtain the leave for contesting the suit, statement made by the landlord on the plaint shall be deemed to be admitted by the tenant and thus the landlord would be entitled to an order of eviction on the grounds mentioned in the plaint, Sub-section (4) on Section 14 of the Act reads thus :--
'(4) The tenant on whom summons is duly served (whether by ordinary mail orby registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to make such contest and obtains leave from the Court as hereinafter provided; and in default of the appearances 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 3 for eviction on the ground aforesaid.'
3. Admittedly, the petitioners, even though they had been duly served the summonses, had initially appeared in the suit, did not apply for any leave to contest the suit on any of the grounds as might have been available to them, nor did they file any affidavit for this purpose. There is no dispute between the parties on this factual aspect of the matter. In as much as the defendant-tenant (the petitioners herein) having not obtained any leave in terms of Sub-section (4), (supra), the learned trial Court passed the decree of eviction against them in the aforesaid suit. It is noteworthy to mention here that the suit was decreed by the learned trial Court on the basis of the evidence adduced by the plaintiffs in support of their contention that the suit property was reasonably and bona fide required by them for the use and occupation of their sons.
4. It is under the aforesaid circumstances that this Civil Revision Petition has been filed by the defendant-petitioners against the order of eviction passed by the learned Court below.
Sub-section (8) of Section 14 of the Act provides for the filing of a civil revision petition against an order of eviction passed in a suit filed under Section 11 of the Act, Sub-section (8) of Section 14 reads thus :--
'(8) No appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with the 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 andpass such order in respect thereto as itthinks fit.'
5. At the very out set a preliminary objection was raised with regard to the maintainability of the present revision petition on the ground that the petitioners not having elected to contest the suit, in other words, having not opted or chosen to apply for permission to contest the suit in terms of Sub-section (4) of Section 14 of the Act, they should not be permitted to challenge the decree in this revision petition. In other words, it was contended on behalf of the plaintiff opposite parties that the omission on the part of the petitioners in not applying under the aforesaid Sub-section (4) of Section 14 of the act for permission to contest the suit on any of the grounds, in spite of due service of the summons, should be construed and treated as an admission and acquiescence on their part in clear contemplation of the language employed in Sub-section (4) (supra). Based on such acquiescence and admission on the part of the petitioners, the statement made by the plaintiffs in the suit should be deemed to be admitted. Therefore, once a tenant, even though entitled to apply for leave, does not elect to make any such application and rests contented, his such conduct should be construed as a dear and unequivocal admission (bordering on acquiescence). Such a tenant, later on should not be allowed to turn around and challenge the decree of eviction by filing a revision petition. In other words, it has been urged, that the decree of eviction having been passed on the basis of the admission and acquiescence of the defendant-tenant, the provision contained in Sub-section (8) (supra) should not be allowed to be invoked by filing a revision petition against the same. The argument appears to have enough force and merit. In normal circumstances, it does seem reasonable that a tenant, who has been served summons and who does appear in the Court pursuant to such summons, does not apply for contesting the suit in the Court, the suit proceeds without contest and a decree is passed thereon, should be treated to have waived his right of any contest, even though the law gave him such a right to contest such tenant who has waived his such right in normal circumstances should not be allowed to challenge the decree in revision. However, ever there may be some exceptions to this general proposition of law. The most im-portant exception is that the decree on the face of the judgment and the record is patently erroneous and suffers from a patent error of illegality, which is in clear violation of the provisions of the Act. Therefore, if a tenant defendant in a revision petition, as in the case in hand, satisfies the court that even though even did not contest the suit, the decree passed is on the face of it, erroneous and the error of law is patently writ-large in the body of the judgment or otherwise is full of such illegalities as would amount to violating the express provision of the Act, the Court cannot and should not preclude such a tenant from invoking the revisional jurisdiction of the court. Such a course may amount to putting premium to an illegal order passed by a Subordinate Court. The High Court in exercise 'of its revisional jurisdiction cannot be a mute spectator to an illegality committed by a Subordinate Court. The above therefore can be termed as a general proposition of law.
6. Mr. Prasad, learned counsel for the petitioners, pointed out two illegalities in the judgment under challenge in this revision petition. Firstly, there is no finding by the learned Court below with respect to the suit property being reasonably and bona fide required by the landlord for the use and occupation of his sons and secondly, the learned court below omitted to comply with the mandatory requirement of law in considering as to whether the partial eviction from the property in question can satisfy the requirement of the landlord.
In so far as the first point is concerned, on going through the judgment under appeal, I find that Mr. Prasad's contention is without any force. The judgment has been passed by the learned Court below on appreciation of the evidence led by and on behalf of the plaintiffs. Based on such appreciation, the court below has clearly returned a finding that the sons of the plaintiffs are eligible to start business of general stores and embroidery and that they require the suit premises for their own use and occupation for such business, The learned Court below has clearly held that there is nothing on the record to disbelieve or discredit the testimony of the witnesses of the plaintiffs. Based on such findings, the court below has clearly held that they are entitled to a decree for eviction on the aforesaid grounds. Undoubtedly, the judgment is very brief, not full of long worded reasonings; but.if one reads it between the lines, one finds that the element of basic requirement has been incorporated in the judgment so as to make out a case for meeting with the mandatory requirement of the property being required for use and occupation of the plaintiffs, reasonably and bona fide.
In so far as the second contention raised by Mr. Prasad, according to him, the learned Court below committed an error In not considering the question of partial eviction.
7. Mr. S. Chaudhary, learned counsel for the plaintiff opposite parties has submitted that even though in normal circumstances, the requirement of taking into consideration the question of partial eviction is mandatory, but a cumulative and Joint reading of the proviso to Clause (c) of Sub-section (1) of Section 11 and Section 14(4) of the Act does clearly and conspicuously suggest that the agreement of the tenant to the question of partial eviction being a sine qua non to such consideration by the learned trial Court, the express omission on the part of the tenant in applying for and obtaining leave to contest the suit in terms of Section 14(4) clearly leads one to a situation where the Court can draw an inference that the tenant was not interested even in partial retention of accommodation and, thus in his partial eviction and thus can be said not to be agreeable to partial eviction. The proviso to Clause (c) of Section 11(1) reads thus :--
'(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'.
8. I think. I find myself in agreement with the aforesaid reasoning of Mr.Chaudhary's argument and hold that such an agreement of the tenant with regard to the partial eviction of the suit property being a mandatory requirement and being integral part thereof, no partial eviction can be ordered, unless the tenant conveys his agreement to the Court that he is ready and willing for such a partial eviction. The omission on the part of the tenant in not applying for leave to contest the suit clearly signalled and signified that he was not in agreement with the partial eviction from the suit property.
9. Leaving aside the aforesaid reasonings or interpretation of the proviso to Clause (c) of Section 11(1) of the Act, even on the actual question of consideration for partial eviction (assuming that it is a mandatory requirement of law even in the facts and circumstances of the present case). I am of the view that in the light of the peculiar facts and circumstances of this case and the backdrop In which the suit has proceeded in the absence of any application filed by the' petitioners in terms of Sub-section (4) (supra), there is no necessity of remanding the suit to the trial Court for considering the question of partial eviction and returning any finding thereupon. On the other hand, I am of the view that if I myself in this revision petition take up the burden of considering the question of partial eviction in the light of the facts and circumstances of this case, such a course of action would be in conformity with the principles of natural justice and would meet with the requirements of protecting and safeguarding the interests of both the parties.
10. Mr. Prasad, learned counsel appearing for the petitioners has clearly told me that the size of the shop in question is 28' long and 8' wide. He has also told me that this shop has only one opening on the front which is 8' wide find on three other sides, there is neither any opening nor any possibility of any opening because these three sides are blocked by buildings etc. On being asked by me if there is any scope of any opening in the suit shop from any one of these three sides, his answer is an emphatic 'no'. Therefore, the only way that this shop can be partitioned is by its vertical division from the mid-point of the width. The two shops which might thus come into existence after such a partition would have the width of just about 3-1/2 ft. each, keeping aside left wide wall tocater to the partition. The width of 3-1/2 ft. would undoubtedly be wholly inappropriate, insufficient and totally disproportionate to the requirement of any business, much less the shoe business being carried out by the petitioners at present, or any business which the plaintiffs propose to do. Based on the aforesaid facts, therefore, in my view, it would be an exercise in futility to remand the suit to the trial court for consideration on the question of partition.
11. I, thus, on my own consideration, find that the suit shop is not capable of being partitioned in any manner to any extent inasmuch as I am of the firm opinion that partitioning the suit shop will neither meet the requirements of the landlord nor the tenant and that by partitioning the suit shop, the character of the shop will be totally destroyed and the shop will not be of any worthwhile use to any of the parties.
12. For the reasons aforesaid, this civil revision petition is dismissed.
13. Revision petition dismissed.