Patna High Court
Mahendra Mohan Dey vs Jyotish Lal Sahu And Ors. on 7 April, 2000
Equivalent citations: 2000(2)BLJR1530
Author: P.K. Deb
Bench: P.K. Deb
ORDER P.K. Deb, J.
1. This revision petition has been preferred against the judgment and order dated 14.2.2000 passed by the VIIth Additional Judicial Commissioner, Ranchi in Misc. Appeal No. 27 of 1999 whereby it was held that the main appeal was not maintainable under Order XLI of the Code of Civil Procedure.
2. The facts of the case run as follows. The opposite party as plaintiffs, filed Title Eviction Suit No. 26/95 for eviction of the defendant-petitioner on grounds as contemplated under Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the BBC Act). On receipt of summons, the defendant-petitioner appeared and took adjournment for filing written statement. On subsequent dates also, adjournments were sought for and granted by the original Court but on one occasion, the same was rejected holding that the defendant had not taken leave of the Court as contemplated under Section 14 of the B.B.C. Act. Ultimately, the defendant gave up taking adjournment for filing written statement and then, the case proceeded ex pane. After hearing the plaintiff and his witnesses, exparte the suit was decreed. Against that decretal of eviction suit ex parte. the petitioners tiled Misc. Case No. 1 of 1998 under Order IX, Rule 13 read with Section 151 of the Code of Civil Procedure (for short CPC) for setting aside the ex parte decree passed in Eviction Title Suit No. 26 of 1995 as the petitioners were debarred on sufficient grounds from contesting the suit. It was alleged in the petition that as the petitioner had fallen ill and as such, he could nor take steps in the suit and as such, the suit was decreed ex parte. The said Misc. Case was contested from the side of the opposite party by filing objections and alter considering the materials on record and the evidence adduced by the parties, the learned Munsif at Ranchi held that the petitioner could not show sufficient ground which dabar him from contesting the suit and hence, the petition was dismissed filed under Order IX, Rule 13 C.P.C. It was further held that even if the petitioner who was defendant No. 1, was said to be an ailing but still then he has major sons who could have taken steps and then defendant No. 2 was very much there in the suit itself but no steps were taken by defendant No. 2 also. Against that order of dismissal, the petitioner filed Misc. Appeal No. 27 of 1991 which had been rejected by the impugned judgment and order and hence this revision petition.
3. Very short point has been raised by Mr. P.K. Prasad, learned Counsel appearing for and on behalf of the petitioner that the learned appellate Court should not have rejected the Miscellaneous Appeal holding the same to be not maintainable relying on 1992 (2) PLJR 91, Santosh Singh and Ors. v. Ram. Chandra Sah and Ors. His contention is that the suit in the present case had never proceeded under the summary procedure as contemplated under Section 14 of the BBC Act and as such, there was no scope to hold that the decree was passed under Sub-section (4) of Section 14 of the BBC Act and hence, there was no scope to hold that in such a proceeding, Order IX, Rule 13, C.P.C. has no application relying on the said judgment of the Division Bench of this Court. His submission is that when the Munsif, that is, the original Court, had given up from the very beginning of the suit, the procedure of summary proceedings as contemplated under Section 14 of the BBC Act and proceeded just like a regular suit, and then an ex parte decree was passed, it should be construed that such ex parte decree was a decree in a regular suit and hence Order IX, Rule 13, C.P.C. was very much applicable. His further contention is that the bar created under Section 13 of the Act, shall have no bearing in the present circumstances and in that way, the learned appellate Court committed error of law in dismissing the appeal holding that the appeal was not maintainable as the petition under Order IX, Rule 13, C.P.C. was of no avail to the petitioner.
4. Mr. Devi Prasad, learned Counsel, by referring to Order No. 27 of the eviction suit, has stated that the suit proceeded very much under the summary proceedings as contemplated under Section 14 of the Act. At the initial stage, the Munsif committed some error by granting time to the petitioner for filing written statement but afterwards, on realizing his fault, he had reverted to the summary proceeding by recording the Order No. 27 and although the order was passed as an exparte order, but the same relates to eviction decree on presumption admission being made from the side of the defendant and such decree should be construed as a decree under Section 14 of the BBC Act and as such, Division Bench judgment had been rightly relied on by the learned appellate Court.
5. The legal position remains that in a eviction suit, normally, if it is covered on the grounds on which the eviction is sought under Section 11 of the Act, then summary proceeding is adverted to as contemplated under Section 14 of the Act. But, if for some reasons or others, the summary procedure is not adopted and the suit proceeded as a regular suit and then all the provisions of the Civil Procedure Code are applicable. But, once it is adverted to the summary procedure as contemplated under Section 14 of the Act, then Section 13 of the Act shall apply having over-riding effect of Section. 14 on other provisions under the C.P.C. Then, the only question remains as to whether the original Court had resorted to the summary proceeding as contemplated under Section 14 of the Act or not.
6. If one goes through the whole order-sheet of the suit, then it would appear that at the initial stage, definitely, the Munsif did not care for proceeding under Section 14 of the Act but after realizing the mistake, he had adverted to Section 14 of the Act. The way the decree has been passed, it is the contention of Mr. Prasad appearing for and on behalf of the petitioner that it is a simple ex parte decree as contemplated under Order IX of the CPC and as such, Order IX, Rule 13, C.P.C. is definitely applicable. It appears on going through the whole of the order-sheet and the ex parte decree passed that the learned Munsif did not proceed with the clear-cut proceedings whether under the summary procedure under Section 14 of the Act or as a regular suit. So, there was definitely confusion and perhaps, for that reason, the Munsif concerned has entertained the petition under Order IX, Rule 13, C.P.C. and rejected the same on merit alone.
7. On going through the appellate judgment, it appears that the main intention of the appellate Court was that the petition under Order IX. Rule 13, C.P.C. was not applicable as the eviction decree was passed under Section 14(4) of the Act itself. But then, he has also considered that even if the adjoining Section 151, C.P.C. which was added in the petition filed, under Order IX, Rule 13, C.P.C., then also the appeal is not maintainable. There can be only revision against the order passed. But in the appellate Judgment itself, although in a very short-cut manner, the learned appellate Court considered the merit also but such consideration of merit was not in the regular process of consideration by the appellate Court.
8. On going through the whole materials on record as already mentioned above, I find and held that the learned Munsif, at the very out-set, was confusing as to what procedure he should adopt in disposal of the eviction suit. But afterwards, he had adverted to the summary proceedings as contemplated under Section 14 of the Act and then the judgment and order passed, cannot be subjected to Order IX, Rule 13, C.P.C. because of the bar created under Section 13 of the Act and hence, definitely, order 9, Rule 13, C.P.C., cannot be applicable in the present case. But, it is made clear if the regular procedure is adopted in passing the ex pane decree, then definitely, Order IX, Rule 13, C.P.C. would be applicable and Section 13 of the Act, cannot create a bar and the Division Bench judgment, as mentioned above, would not be applicable. But in the present case, I find that the Munsif had ultimately adverted to summary procedure under Section 14 of the Act and hence, Order IX, Rule 13, C.P.C. has no application. But then, definitely Section 151, C.P.C. is applicable under the inherent jurisdiction to question the exparte decree even passed under Section 14 of the B.B.C. Act and then, such order passed under Section 151, C.P.C., is definitely not appelable and hence, the appellate Court is right in holding that the appeal was not maintainable. But then against that order, revision is maintainable before this Court and if we consider the present revision petition against the order passed by the Munsif rejecting the petition under Section 151, C.P.C deleting the intermittent procedure of filing the appeal, then it is to be considered by this Court whether the same order passed by the Munsif can be interfered was the narrow scope under Section 115, of the C.P.C. or not.
9. There is elaborate consideration of the evidence of both the parties regarding sufficient cause of debarring the petitioner from contesting the eviction suit and the learned Munsif came to the finding that no sufficient cause was proved from the side of the petitioner. In such finding, there is no jurisdictional error committed by the learned Munsif. Again, non-giving of chance to the petitioner for cross-examination of the witnesses, would also not arise when the petitioner, from his own end, deliberately remained absent during the subsequent proceeding in the suit.
10. Thus, in any view of the matter, I do not find any force in this revision petition and hence, the same is rejected having no force.