Smt. Shanti Devi Vs. Sri Md. Farppque Azam - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....orderm.y. eqbal, j.1. this application at the instance of the defendant petitioner under article 227 of the constitution of india is directed against the under dated 12.2.2004 passed by munsif-i, dhanbad in title (eviction) suit no. 7/01 whereby he has decided the preliminary issue on an application filed by the petitioner under order 14 rule 2(2) of the code of civil procedure and held that suit is maintainable under the provision of bihar buildings (lease, ren and eviction) control act, 1982.2. the case of the defendant-petitioner is that plaintiff filed the aforementioned suit for eviction under bihar buildings (lease, rent and eviction) control act, 1982 (in short the act) for eviction of the petitioner from the suit property consisting of two rooms and verandah along with land being.....

Judgment:
ORDER

M.Y. Eqbal, J.

1. This application at the instance of the defendant petitioner under Article 227 of the Constitution of India is directed against the under dated 12.2.2004 passed by Munsif-I, Dhanbad in Title (Eviction) Suit No. 7/01 whereby he has decided the preliminary issue on an application filed by the petitioner under Order 14 Rule 2(2) of the Code of Civil Procedure and held that suit is maintainable under the provision of Bihar Buildings (Lease, Ren and Eviction) Control Act, 1982.

2. The case of the defendant-petitioner is that plaintiff filed the aforementioned suit for eviction under Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (in short the Act) for eviction of the petitioner from the suit property consisting of two rooms and verandah along with land being portion of Municipal Holding No. 496 measuring an area of two kathas 'situated at Katras Road, Dhanbad. Petitioner's case is that the lease deed by which the suit premises was leased out shows that the property in question is not a building within the meaning of Section 2(b) of the Act, inasmuch as leased out premises is a land and not a building. Petitioner filed separate application under Order 14 Rule 2(2) of the Act for deciding preliminary issue as to whether the suit is maintainable under the said Act.

3. A rejoinder was filed by the plaintiff controverting the allegation made in the application stating that two rooms and verandah alongwith vacant land was let out by virtue of indenture of lease. Plaintiffs case is that the suit premises is a building within the meaning of the Act.

4. I have heard Mr. Indrajit Sinha, learned Counsel for the petitioner and Mr. Manoranjan Nath Sinha, learned Counsel for the respondent.

5. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 has been enacted to regulate letting of buildings and the control of the rent of such buildings and unreasonable eviction, of tenants there from. Section 2(b) of the Act defines the term 'building' which reads as under:

building' means any building, or hut or a part of the building or hut, let or to be let separately for residential or non-residential purposes, and includes-

(i) the garden, grounds and out-houses, if any, appurtenant to such building or hut or part of such building or hut; and

(ii) any furniture supplied by the landlord for use in such building or hut or part of a building or hut;

6. Prom plain reading of the aforesaid definition, it is clear that building includes hut, or part of a building or hut, which includes business premises also. Building also denotes a structure to the nature of premises intended for human habitant or for the use of non-residential purposes such as business.

7. The Supreme Court in the case of Suryakumar Govindjee. v. Krishnammal and Ors. : [1990]2SCR782 has considered the definition of building under the T.N.Buildings (Lease, and Rent Control) Act1960. Their Lordships observed:

We have not been able to get at the exact meaning of the Tamil word KAICHALAI. It, however, seems to denote a structure or a roof put up by hand. Whatever may be the precise, meaning of the term, we think that the definition of Section 2(2) clearly includes the kaichalai in the present case. Since the Act applies to residential and non-residential buildings alike, the expression 'hut' cannot be restricted only to huts or cottages intended to be lived in. It will also take in any shed, hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use of any purpose- residential or non-residential in the same manner as any other first class construction. The kaichalai is a structure, which falls within the purview of the definition. Counsel for the appellant is perhaps understanding its utility by describing it as a mere cattle shed. The area of the shed is quite substantial and, as will be explained later, the parties also appear to have attached some importance to its existence on the site. It is very difficult to hold, in view of the above definition, that the Kaichalai is not a 'building' within the meaning of Section 2(2).

8. In the case of Mohammad Shah Alam. v. Abdul Hamid (1984)PLJR-102, a Bench of Patna High Court while considering the definition of the term 'building observed:

Thus the definition of the word 'building', set out above, as in very wide terms and includes not only garden, grounds and out-houses, if any, appurtenant to the building or hut or part of such building or hut, but also furniture supplied by the landlord for tenant's use in such building or hut or part of a building or hut, thus indicating that the legislature has provided for all kinds of letting. Hence it is difficult to accept the contention of the learned lawyer appearing for the defendant-petitioner. It cannot be contended that the legislature intended the provisions of the Act to a have a limited application depending upon the terms, which an astute landlord may impose upon the tenant and the Court has to give them the widest application possible within the term of the statute. Having these considerations in view, I do not think that the supply of furniture would make any difference to the application of Section 13 of the Act in respect of the premises in question

9. In the instant case the plaintiff /opposite party filed the suit for eviction from the suit premises consisting of two rooms and verandah alongwith vacant land being Municipal Holding No. 496, situated at Katras Road, Dhanbad. Petitioner annexed copy of the lease agreement which Annexure -1 to the writ application. In the lease deed, schedule of the premises has been described and map was also attached forming part of the lease deed. The map attached with the lease deed shows that the suit premises consist of two rooms and verandah along with vacant land. I have therefore, no doubt in my mind to hold that if the building consisting of rooms and structures along with vacant land is let out by a lease deed then such premises comes within the definition of building as defined under Section 2(b) of the Act. The Court below, therefore, rightly held that the suit is maintainable under the Bihar Buildings (Lease, Rent and Eviction) Control Act. I do not find any error in the impugned order.

10. For the aforesaid reasons, there is no merit in this writ application, which is accordingly, dismissed.