Jharkhand High Court
Jaganath Prasad vs Santosh Kumar Sahu on 26 September, 2006
Equivalent citations: [2007(1)JCR206(JHR)], 2007 (1) AIR JHAR R 778, (2007) 1 JCR 206 (JHA), (2007) 1 RENCJ 298, (2007) 51 ALLINDCAS 988 (JHA)
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This application under Article 227 of the Constitution of India is directed against the order dated 22/8/2003 purported to have been passed under Section 15 of the Bihar Building (Lease, Rent & Eviction ) Control Act, 1982 (in short the said Act) in Eviction Suit No. 15 of 1994 by which the Munsif, Chaibasa directed the defendant-petitioner to deposit monthly rent at the rate of Rs. 20/- with a further direction that the amount of rent shall not be withdrawn by the plaintiff.
2. The learned Single Judge , differing with the view taken by a Bench of this court in the case of Mohammad lmteyaz Ahmad v. Abdul Quayum and Ors. 2003(2) JLJR, 17, referred the matter to the Division Bench for deciding the correctness of the said decision.
3. In Imteyaz Ahmad's case (supra) a Bench of this court held that if an application under Section 15 of the said Act is filed, the correct procedure would be that the court should tentatively examine the materials available and determine whether denial of relationship of landlord and tenant is bona fide or a mere pretence. The court is required to make a summary investigation and record a prima facie finding regarding existence of relationship of landlord and tenant before directing the defendant to deposit the rent. The court, in Imteyaz Ahmad's case, observed as under:
From bare perusal of the aforesaid provision it is clear that if in a suit for eviction the tenant contests the suit as, regards his ejectment, the landlord may move an application for an order on the tenant to deposit current rent as also arrears of rent. The court, before passing the order, shall give opportunity to the parties to be heard and prima facie record a finding as regards existence of relationship of landlord and. tenant between the parties. In other words, if an application under Section 15 of the said Act is filed in a eviction suit, the correct procedure would be that the court should tentatively examine the " materials available and determine whether denial of relationship is bona fide or a mere pretence.
It is, therefore, clear that before passing an order under Section 15 of the said Act the court is required to make a summary investigation and prima facie record a finding regarding existence of relationship of landlord and tenant before directing the defendant to deposit the rent in the manner as provided under Section 15 of the said Act.
4. The learned Single Judge, in the case in hand, is of the view that such inquiry and finding is not necessary in all cases. The question raised by the learned Single Judge, as to what is the procedure to be adopted by the court before passing an order under section. 15 of the said Act, has been fully discussed and decided by a Full Bench of the Patna High Court in the case of Mahabir Ram v. Shiva Shankar Prasad and Ors. . The Full Bench, condisidering the scope of Section 15 of the Act (section 11A of 1947 Act), observed:
Another decision of this court in Parbati Kueri v. Sugan Chand Jain is relevant while interpreting, the provisions of Section 11A. The suit there was for eviction and recovery of arrears of rent in respect of a house. The plaintiff opposite party No. 1 filed an application in the trial court under Section 11A but that application was opposed by the defendant petitioner on two grounds. The first ground was that there was no relationship of landlord and tenant between the parties and the second one was that there was no arrear of rent due to the plaintiff. The trial court recorded its findings holding that prima facie there was relationship of landlord and tenant between the parties and prima facie a certain sum was in arrears as rent. On those findings the court below directed the defendant t o deposit the arrears of rent and monthly rent within a certain time failing which the defence against ejectment had to be struck off. The petitioner being aggrieved by that order contended that the trial court was not justified in going into either of the two questions as both had to be decided as substantial; questions in the suit itself. G.N. Prasad, J. held that" even if those questions had to be decided finally in the suit, the jurisdiction of the court in passing an order under Section 11A was not ousted and the court had to pass the necessary order on the petition by the landlord under Section 11A . For that purpose it has to make a summary investigation with respect to both the questions raised by way of objection to the landlord's petition". In support of this view his Lordship referred to judgment of this court dated 28.11.1961 in Civil Revn. No. 710 of 1961. Azizur Rahman v. Abdul Amin where it was held that on an application under Section 11A it was incumbent upon the court to find out in a summary way on the materials before it whether the plaintiff's case in support of the petition under Section 11A was correct or not and the finding given at that stage was a finding only for the purpose of Section 11A o the Buildings Control Act. I am accordingly of the view that the questions arising under Section 11A have to be determined at that stage for the purpose of passing an order under that section and the same questions may gave to be gone into finally at the time of trial, but that would be no bar to a tentative determination of ' the question of relationship of landlord and tenant at the earlier stage when the provisions of Section 11A are resorted to by the landlord.
5. The aforesaid Full Bench decision was followed by this court in the case of Md. Imteyaz Ahmad v. Abdul Quayum and Ors. (supra). In the case of Shamim Ara Naz and Anr. v. Mohammad Quamruddin 1997 (1) PLJR, 526, a Bench of the Patna High court again considered the provisions of Section 15 of the said Act and held as under:
Having regard to the facts and circumstances of the case, I am of the opinion that when the learned court below has come to a prima facie finding that the plaintiff established his ownership over the suit premises then the application ought not to have been rejected on the ground that there was no evidence of payment of rent by the defendant to the plaintiff or their vendor. It is well settled hat in a case where defendant denies the relationship, the court has to examine the material then available and come to a conclusion whether such denial or a dispute as to tile of defendant denies the relationship , the court has to examine the material then available and come to a conclusion whether such denial or a dispute as to tile of the plaintiff is bona fide or a mere pretence and if the court finds that there is no prima facie merit in the said denial then the defendant can be called upon to make deposit of rent. In the instant case although that there is no prima facie merit in the said denial then the defendant can be called upon to make deposit of rent In the instant case although the defendant has claimed title in himself by virtue of alleged Heba made in his favour but no prima facie evidence was produced to establish the said defence. At the same time, no prima facie evidence has come on record to show that the defendant was paying rent to the plaintiff or their vendor ,Mr. Sonny Suleman Afazal. However, mere non payment of rent can not be a sole ground for rejecting the application under Section 15 of the said Act.
6. In the light of the decisions referred to hereinabove, we are of the view that this court has correctly decided the law in Imteyaz Ahmad's case (supra). So far the instant case is concerned, admittedly the court has recorded a prima facie finding that the plaintiff-respondent produced documents in support of his title . On the other hand, the stand of the defendant-petitioner is that he has been in possession of the suit property for a long time and thereby he has claimed title by adverse possession.
7. In the aforesaid premises we do not find any illegality in the impugned order passed by the court below directing the petitioner-defendant to deposit rent with a further direction to the plaintiff-respondent not to withdraw the rent amount. This writ application is, therefore, dismissed by answering the question referred by the learned Single Judge.