Rajendra Prasad @ Rajendra Pd. Agrawal Vs. Shri Sheo Narayan Singh - Court Judgment

Excerpt:
civil procedure code, 1908, order ix, rule 13 - bihar buildings (lease, rent and eviction) control act, 1982, sections 14(5), 14(7), 14(8); provincial small cause courts act, 1887, section 17--non-maintainability of application under order ix, rule 13, cpc--title eviction suit under section 14 of act, 1982--decreed on contest--defendants application under order ix, rule 13, cpc seeking recall rejected as not maintainable--appeal against allowed--hence present revision--eviction suit duly contested and was filed but no evidence produced nor case argued inspite of several opportunities--held--revision allowed and decreetal of suit confirmed. - - 10. the contention of the learned counsel for the petitioner is that the provision of order ix, rule 13 is applicable for setting aside a decree only when the summon was not duly served upon the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, but here in the instant case the defendant has neither claimed that summon was not duly served upon him, nor he had stated that he was prevented by any cause from appearing in the suit, rather the admitted fact is that after receipt of the summon the defendant had appeared and filed written statement and even cross-examined the witnesses of the plaintiff but thereafter did not produce any evidence due to which the evidence was closed, whereafter at the time of argument also the defendant filed his attendance on several dates but when no argument was made on his behalf the suit was decided on contest after considering the pleadings of both the parties as well as the evidence on re janki manchanda, reported in, air 1987 sc 42, as well as a division bench decision of this high court in the case of santosh singh and ors. hence, he submitted that even if the learned court below had stated in the judgment that the suit was decreed on contest, the same was in fact decided ex parte and so the provision of order ix, rule 13 of the code was clearly applicable. he further contended that as per the provision of section 14(7) of the act the provisions of small causes courts act was applicable to the suits under section 14 of the act and hence the miscellaneous case under order ix, rule 13 of the code was clearly maintainable and the learned lower appellate court has rightly relied upon the decisions in the cases of prakash chander manchanada, (supra) and santosh singh and others, (supra) and hence the learned counsel for the opposite party claimed that the impugned order of the court of appeal below is quite legal and justified and requires no interference. it is also apparent from the records that six adjournments were given to the defendant to produce his evidence but when he failed to do that, his evidence was closed but thereafter on his application the said order was recalled and again six adjournments were given to enable him to produce his evidence but even then he did not produce any witness and hence his evidence was again closed. hence the plaintiff's argument was started and was closed, whereafter more than a month time, which included several adjournments was granted to the defendant to give his reply to the plaintiff's argument, but when no reply was given the suit was fixed for judgment and the judgment was finally delivered on 13.11.2003 after considering the pleadings of the plaintiff as well as of the defendant, whereafter the suit was decreed on contest with cost. (supra) were not at all applicable as the defendants in those cases had throughout absented and those suits were clearly decreed ex parte. 15. learned counsel for the opposite party even failed to show that the provision of section 17 of the provincial small causes courts act was followed at the time of filing of the miscellaneous case under order ix, rule 13 of the code and the decreetal amount or its security was deposited. hence, the learned court below was fully justified in decreeing the suit on merits after considering the evidence on record and the said decree was clearly a decree on contest as has been mentioned in the judgment in question and as the court had decided the suit after considering the pleadings of both the parties, which were on record. s.n. hussain, j.1. this civil revision is directed against the impugned order dated 31.7.2004, by which the learned 4th additional district judge, patna allowed misc. appeal no. 06 of 2004 and set aside order dated 09.2.2004, by which the learned 3rd munsif, patna had dismissed misc. case no. 15 of 2003 as not maintainable under order ix, rule 13 of the code of civil procedure (hereinafter referred to as 'the code' for the sake of brevity).2. petitioner was plaintiff of title eviction suit no. 37 of 2000, which he had filed for eviction of the opposite party on the sole ground of personal necessity and hence the suit proceeded under the provision of section 14 of the bihar buildings (lease, rent and eviction) control act, 1982 (hereinafter referred to as 'the act' for the sake of brevity).3. after receipt of notice the defendant-opposite party appeared in the suit and sought leave to contest under section 14(4) of the act, which was granted by the court, whereafter the defendant filed his written statement admitting the relationship of landlord and tenant between the parties but contesting the plaintiffs claim of personal necessity.4. the said suit was contested, issues were framed, whereafter the plaintiff examined his witnesses, who were also cross-examined by the defendant, but inspite of several adjournments the defendant did not produce any evidence and hence his evidence was closed on 05.5.2003. later on 07.7.2003 the court below recalled its said order and again provided opportunity to the defendant to produce evidence daily.5. but even after several adjournments he did not produce any evidence, hence his evidence was again closed by the court below on 28.7.2003. however, on 18.8.2003 the defendant filed a petition in the court below that he was going to file a civil revision against the said order, but no civil revision was filed, nor the said order dated 28.7.2003 was ever challenged and hence it attained finality.6. it further transpires that thereafter the defendant became absent since 02.9.2003 and did not submit his arguments, although he filed attendance on several dates and the suit had to be adjourned on those dates, hence the court had no option but to start the argument of the plaintiff, which ended on 29.9.2003.7. thereafter the defendant was asked to submit his reply to the arguments of the plaintiff, but when even after several adjournments till 06.11.2003 the defendant did not appear to give his reply, the hearing of the case was closed and the suit was fixed for judgment. finally judgment was passed by the learned trial court on 13.11.2003, by which the suit was decreed on contest with cost and the defendant was directed to be evicted from the suit premises.8. against the said order of eviction no appeal or revision was filed by the defendant, who merely filed misc. case no. 15 of 2003 before the same court under order ix, rule 13 of the code for setting aside the said decree claiming it to be an ex parte decree against the defendant. however, the learned 3rd munsif, patna rejected the said case vide order dated 09.2.2004 on the ground that the said miscellaneous case was not maintainable under order ix, rule 13 of the code as the decree in question was passed on contest and was not ex parte.9. the defendant challenged the said order dated 09.2.2004 in miscellaneous appeal no. 06 of 2004 under order xliii, rule 1(d) of the code, which was heard by the learned 4th additional district judge, patna, who by his impugned order dated 31.7.2004 allowed the miscellaneous appeal and set aside the order of the court below holding that the miscellaneous case was maintainable as the provisions of order ix, rule 13 of the code shall apply by virtue of section 17 of the small causes courts act read with section 14(7) of the b.b.c. act and directed the court below to decide the miscellaneous case on merit.10. the contention of the learned counsel for the petitioner is that the provision of order ix, rule 13 is applicable for setting aside a decree only when the summon was not duly served upon the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, but here in the instant case the defendant has neither claimed that summon was not duly served upon him, nor he had stated that he was prevented by any cause from appearing in the suit, rather the admitted fact is that after receipt of the summon the defendant had appeared and filed written statement and even cross-examined the witnesses of the plaintiff but thereafter did not produce any evidence due to which the evidence was closed, whereafter at the time of argument also the defendant filed his attendance on several dates but when no argument was made on his behalf the suit was decided on contest after considering the pleadings of both the parties as well as the evidence on record, hence the provisions of order ix, rule 13 of the code was not applicable an miscellaneous case filed under the said provision was not maintainable.11. learned counsel for the petitioner also claimed that the learned appellate court wrongly relied upon the decision of hon'ble supreme court in the case of prakash chander manchanda and anr. v. smt. janki manchanda, reported in, air 1987 sc 42, as well as a division bench decision of this high court in the case of santosh singh and ors. v. ram chandra sah and ors., reported in 1992 (2) bljr 1413, and the said rulings were not applicable to the facts of this case as in both the said cases the defendant of those cases had left pairvi totally and throughout absented themselves from the proceeding of the suit. but here the defendant was always present at every stage of the suit and but intentionally did not produce any witness nor submitted his arguments. in this connection the learned counsel for the petitioner relied upon a decision of this court in the case of rekha basu and anr. v. hari ram belbariar @ hari ram belwariar, reported in, 2001 (2) bljr 1445, in which case the defendant's similar petition under order ix, rule 13 of the code was rejected up to this court.12. learned counsel for the petitioner also averred that section 14 of the act provides special procedure for disposal of cases for eviction on the ground of bona fide requirement and the suit in question proceeded after the defendant was granted leave to contest under the provision of sub-section (5) on the affidavit filed by the defendant. he further contended that as per section 13 of the act the provisions of section 14 had effect notwithstanding any thing inconsistent therewith elsewhere in this or any other law. hence the said provision had overriding effect upon any other general law. it was also the contention of the learned counsel for the petitioner that sub-section (7) of section 14 of the act provides that the court while hearing a suit under the said section shall follow the practice and procedure of a court of small causes, whereas section 17 of the provincial small causes courts act, 1887 provides that even when in a suit under small causes court act an ex parte decree is passed the provision of the code of civil procedure shall apply, but at the time of presenting his application for setting aside the ex parte decree, the defendant should either deposit in the court the decreetal amount or give such security, but here in the instant case neither the decree in question was an ex pane decree, nor the defendant deposited the decreetal amount or the security at the time of filing of the miscellaneous case, hence under the said provisions also the miscellaneous case under order ix, rule 13 of the code was not maintainable and the only remedy for the defendant was to file a revision under the proviso to section 14(8) of the act but the same was never availed by the defendant and hence the learned munsif had rightly rejected the misc. case as not maintainable and the learned lower appellate court wrongly reversed the said order assuming that the misc. case was maintainable.13. on the other hand, learned counsel for the opposite party contested the claim of the petitioner and submitted that although the defendant appeared in the suit and filed written statement but he could neither produce his evidence nor could present his argument and in fact he was absent since 02.9.2003, whereafter argument of plaintiff was heard and judgment was reserved. hence, he submitted that even if the learned court below had stated in the judgment that the suit was decreed on contest, the same was in fact decided ex parte and so the provision of order ix, rule 13 of the code was clearly applicable. he further contended that as per the provision of section 14(7) of the act the provisions of small causes courts act was applicable to the suits under section 14 of the act and hence the miscellaneous case under order ix, rule 13 of the code was clearly maintainable and the learned lower appellate court has rightly relied upon the decisions in the cases of prakash chander manchanada, (supra) and santosh singh and others, (supra) and hence the learned counsel for the opposite party claimed that the impugned order of the court of appeal below is quite legal and justified and requires no interference.14. after hearing the learned counsel for the parties and after perusing the material on record, it is quite apparent that the suit for eviction on the ground of personal necessity was filed by the petitioner in the year 2000 but the defendant after grant of leave to contest started dilly-dallying the matter for three years, although the relationship of landlord and tenant was admitted by him. it is also apparent from the records that six adjournments were given to the defendant to produce his evidence but when he failed to do that, his evidence was closed but thereafter on his application the said order was recalled and again six adjournments were given to enable him to produce his evidence but even then he did not produce any witness and hence his evidence was again closed. but this order was never challenged by the defendant-tenant. however, when the time of argument came several adjournments were given by the court below to enable the defendant to present his argument but inspite of filing his attendance in the court, no one came to argue the case on his behalf. hence the plaintiff's argument was started and was closed, whereafter more than a month time, which included several adjournments was granted to the defendant to give his reply to the plaintiff's argument, but when no reply was given the suit was fixed for judgment and the judgment was finally delivered on 13.11.2003 after considering the pleadings of the plaintiff as well as of the defendant, whereafter the suit was decreed on contest with cost. hence the decisions in the cases of prakash chander manchanda (supra) and santosh singh and ors. (supra) were not at all applicable as the defendants in those cases had throughout absented and those suits were clearly decreed ex parte.15. learned counsel for the opposite party even failed to show that the provision of section 17 of the provincial small causes courts act was followed at the time of filing of the miscellaneous case under order ix, rule 13 of the code and the decreetal amount or its security was deposited. hence on that score also the said miscellaneous case filed by the defendant was not maintainable.16. furthermore, in the instant case the defendant was admittedly a tenant of the plaintiff. hence the only question for decision in the suit was personal necessity, which was proved by the plaintiff's witnesses, who were also cross-examined by the defendant, but the defendant could not contradict the said ground by his own evidence. hence, the learned court below was fully justified in decreeing the suit on merits after considering the evidence on record and the said decree was clearly a decree on contest as has been mentioned in the judgment in question and as the court had decided the suit after considering the pleadings of both the parties, which were on record.17. however, if the learned trial court had not considered any evidence properly, then the remedy was not to file a miscellaneous case, rather the defendant should have challenged the same in revision. but not having done so, there was no occasion for the defendant to file a miscellaneous case merely to persist with his dilatory tactics verging on abuse of the process of the court.18. in the aforesaid circumstances, the miscellaneous case filed by the defendant-opposite party under order ix, rule 13 of the code was not maintainable and hence the impugned order of the court of appeal below dated 31.7.2004 is set aside and the order of the learned 3rd munsif, patna passed in misc. case no. 15/2003 on 09.2.2004 is affirmed.19. this civil revision is, accordingly, allowed.

Judgment:

S.N. Hussain, J.

1. This civil revision is directed against the impugned order dated 31.7.2004, by which the learned 4th Additional District Judge, Patna allowed Misc. Appeal No. 06 of 2004 and set aside order dated 09.2.2004, by which the learned 3rd Munsif, Patna had dismissed Misc. Case No. 15 of 2003 as not maintainable under Order IX, Rule 13 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity).

2. Petitioner was plaintiff of Title Eviction Suit No. 37 of 2000, which he had filed for eviction of the opposite party on the sole ground of personal necessity and hence the suit proceeded under the provision of Section 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act' for the sake of brevity).

3. After receipt of notice the defendant-opposite party appeared in the suit and sought leave to contest under Section 14(4) of the Act, which was granted by the Court, whereafter the defendant filed his written statement admitting the relationship of landlord and tenant between the parties but contesting the plaintiffs claim of personal necessity.

4. The said suit was contested, issues were framed, whereafter the plaintiff examined his witnesses, who were also cross-examined by the defendant, but inspite of several adjournments the defendant did not produce any evidence and hence his evidence was closed on 05.5.2003. Later on 07.7.2003 the Court below recalled its said order and again provided opportunity to the defendant to produce evidence daily.

5. But even after several adjournments he did not produce any evidence, hence his evidence was again closed by the Court below on 28.7.2003. However, on 18.8.2003 the defendant filed a petition in the Court below that he was going to file a civil revision against the said order, but no civil revision was filed, nor the said order dated 28.7.2003 was ever challenged and hence it attained finality.

6. It further transpires that thereafter the defendant became absent since 02.9.2003 and did not submit his arguments, although he filed attendance on several dates and the suit had to be adjourned on those dates, hence the Court had no option but to start the argument of the plaintiff, which ended on 29.9.2003.

7. Thereafter the defendant was asked to submit his reply to the arguments of the plaintiff, but when even after several adjournments till 06.11.2003 the defendant did not appear to give his reply, the hearing of the case was closed and the suit was fixed for judgment. Finally judgment was passed by the learned Trial Court on 13.11.2003, by which the suit was decreed on contest with cost and the defendant was directed to be evicted from the suit premises.

8. Against the said order of eviction no appeal or revision was filed by the defendant, who merely filed Misc. Case No. 15 of 2003 before the same Court under Order IX, Rule 13 of the Code for setting aside the said decree claiming it to be an ex parte decree against the defendant. However, the learned 3rd Munsif, Patna rejected the said case vide order dated 09.2.2004 on the ground that the said miscellaneous case was not maintainable under Order IX, Rule 13 of the Code as the decree in question was passed on contest and was not ex parte.

9. The defendant challenged the said order dated 09.2.2004 in Miscellaneous Appeal No. 06 of 2004 under Order XLIII, Rule 1(d) of the Code, which was heard by the learned 4th Additional District Judge, Patna, who by his impugned order dated 31.7.2004 allowed the miscellaneous appeal and set aside the order of the Court below holding that the miscellaneous case was maintainable as the provisions of Order IX, Rule 13 of the Code shall apply by virtue of Section 17 of the Small Causes Courts Act read with Section 14(7) of the B.B.C. Act and directed the Court below to decide the miscellaneous case on merit.

10. The contention of the learned counsel for the petitioner is that the provision of Order IX, Rule 13 is applicable for setting aside a decree only when the summon was not duly served upon the defendant or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, but here in the instant case the defendant has neither claimed that summon was not duly served upon him, nor he had stated that he was prevented by any cause from appearing in the suit, rather the admitted fact is that after receipt of the summon the defendant had appeared and filed written statement and even cross-examined the witnesses of the plaintiff but thereafter did not produce any evidence due to which the evidence was closed, whereafter at the time of argument also the defendant filed his attendance on several dates but when no argument was made on his behalf the suit was decided on contest after considering the pleadings of both the parties as well as the evidence on record, hence the provisions of Order IX, Rule 13 of the Code was not applicable an miscellaneous case filed under the said provision was not maintainable.

11. Learned counsel for the petitioner also claimed that the learned Appellate Court wrongly relied upon the decision of Hon'ble Supreme Court in the case of Prakash Chander Manchanda and Anr. v. Smt. Janki Manchanda, reported in, AIR 1987 SC 42, as well as a Division Bench decision of this High Court in the case of Santosh Singh and Ors. v. Ram Chandra Sah and Ors., reported in 1992 (2) BLJR 1413, and the said rulings were not applicable to the facts of this case as in both the said cases the defendant of those cases had left pairvi totally and throughout absented themselves from the proceeding of the suit. But here the defendant was always present at every stage of the suit and but intentionally did not produce any witness nor submitted his arguments. In this connection the learned counsel for the petitioner relied upon a decision of this Court in the case of Rekha Basu and Anr. v. Hari Ram Belbariar @ Hari Ram Belwariar, reported in, 2001 (2) BLJR 1445, in which case the defendant's similar petition under Order IX, Rule 13 of the Code was rejected up to this Court.

12. Learned counsel for the petitioner also averred that Section 14 of the Act provides special procedure for disposal of cases for eviction on the ground of bona fide requirement and the suit in question proceeded after the defendant was granted leave to contest under the provision of Sub-section (5) on the affidavit filed by the defendant. He further contended that as per Section 13 of the Act the provisions of Section 14 had effect notwithstanding any thing inconsistent therewith elsewhere in this or any other law. Hence the said provision had overriding effect upon any other general law. It was also the contention of the learned counsel for the petitioner that Sub-section (7) of Section 14 of the Act provides that the Court while hearing a suit under the said section shall follow the practice and procedure of a Court of small causes, whereas Section 17 of the Provincial Small Causes Courts Act, 1887 provides that even when in a suit under Small Causes Court Act an ex parte decree is passed the provision of the Code of Civil Procedure shall apply, but at the time of presenting his application for setting aside the ex parte decree, the defendant should either deposit in the Court the decreetal amount or give such security, but here in the instant case neither the decree in question was an ex pane decree, nor the defendant deposited the decreetal amount or the security at the time of filing of the miscellaneous case, hence under the said provisions also the miscellaneous case under Order IX, Rule 13 of the Code was not maintainable and the only remedy for the defendant was to file a revision under the proviso to Section 14(8) of the Act but the same was never availed by the defendant and hence the learned Munsif had rightly rejected the misc. case as not maintainable and the learned Lower Appellate Court wrongly reversed the said order assuming that the misc. case was maintainable.

13. On the other hand, learned counsel for the opposite party contested the claim of the petitioner and submitted that although the defendant appeared in the suit and filed written statement but he could neither produce his evidence nor could present his argument and in fact he was absent since 02.9.2003, whereafter argument of plaintiff was heard and judgment was reserved. Hence, he submitted that even if the learned Court below had stated in the judgment that the suit was decreed on contest, the same was in fact decided ex parte and so the provision of Order IX, Rule 13 of the Code was clearly applicable. He further contended that as per the provision of Section 14(7) of the Act the provisions of Small Causes Courts Act was applicable to the suits under Section 14 of the Act and hence the miscellaneous case under Order IX, Rule 13 of the Code was clearly maintainable and the learned Lower Appellate Court has rightly relied upon the decisions in the cases of Prakash Chander Manchanada, (supra) and Santosh Singh and others, (supra) and hence the learned counsel for the opposite party claimed that the impugned order of the Court of appeal below is quite legal and justified and requires no interference.

14. After hearing the learned counsel for the parties and after perusing the material on record, it is quite apparent that the suit for eviction on the ground of personal necessity was filed by the petitioner in the year 2000 but the defendant after grant of leave to contest started dilly-dallying the matter for three years, although the relationship of landlord and tenant was admitted by him. It is also apparent from the records that six adjournments were given to the defendant to produce his evidence but when he failed to do that, his evidence was closed but thereafter on his application the said order was recalled and again six adjournments were given to enable him to produce his evidence but even then he did not produce any witness and hence his evidence was again closed. But this order was never challenged by the defendant-tenant. However, when the time of argument came several adjournments were given by the Court below to enable the defendant to present his argument but inspite of filing his attendance in the Court, no one came to argue the case on his behalf. Hence the plaintiff's argument was started and was closed, whereafter more than a month time, which included several adjournments was granted to the defendant to give his reply to the plaintiff's argument, but when no reply was given the suit was fixed for judgment and the judgment was finally delivered on 13.11.2003 after considering the pleadings of the plaintiff as well as of the defendant, whereafter the suit was decreed on contest with cost. Hence the decisions in the cases of Prakash Chander Manchanda (supra) and Santosh Singh and Ors. (supra) were not at all applicable as the defendants in those cases had throughout absented and those suits were clearly decreed ex parte.

15. Learned counsel for the opposite party even failed to show that the provision of Section 17 of the Provincial Small Causes Courts Act was followed at the time of filing of the miscellaneous case under Order IX, Rule 13 of the Code and the decreetal amount or its security was deposited. Hence on that score also the said miscellaneous case filed by the defendant was not maintainable.

16. Furthermore, in the instant case the defendant was admittedly a tenant of the plaintiff. Hence the only question for decision in the suit was personal necessity, which was proved by the plaintiff's witnesses, who were also cross-examined by the defendant, but the defendant could not contradict the said ground by his own evidence. Hence, the learned Court below was fully justified in decreeing the suit on merits after considering the evidence on record and the said decree was clearly a decree on contest as has been mentioned in the judgment in question and as the Court had decided the suit after considering the pleadings of both the parties, which were on record.

17. However, if the learned Trial Court had not considered any evidence properly, then the remedy was not to file a miscellaneous case, rather the defendant should have challenged the same in revision. But not having done so, there was no occasion for the defendant to file a miscellaneous case merely to persist with his dilatory tactics verging on abuse of the process of the Court.

18. In the aforesaid circumstances, the miscellaneous case filed by the defendant-opposite party under Order IX, Rule 13 of the Code was not maintainable and hence the impugned order of the Court of appeal below dated 31.7.2004 is set aside and the order of the learned 3rd Munsif, Patna passed in Misc. Case No. 15/2003 on 09.2.2004 is affirmed.

19. This civil revision is, accordingly, allowed.