Patna High Court
Shamim Ara Naz And Anr. vs Mohammad Quamruddin on 18 February, 1997
Equivalent citations: 1997(1)BLJR836
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This civil revision application is directed against the order dated 22.9.1995 passed by learned Munsif, Patna City, in Title Friction Suit No. 28 of 1992 whereby and whereunder learned Munsif rejected the application filed by the plaintiff-petitioner under Section 15 of the Bihar Building (Lease, Rent and Eviction Control) Act, 1982 (hereinafter referred to as the 'said Act') for a direction to the defendant-opposite party for payment of arrears of rent from the date of initiation of the suit, The aforesaid suit was filed by the plaintiff-petitioner for a decree of eviction by the defendant from the building premises which is the subject matter of the suit,
2. The plaintiff's case, inter alia, was that the building premises originally belonged to Mr. Sonny Suleman Affal and the defendant-opposite party was a tenant in respect of the said building under him on payment of monthly rent of Rs. 200/-. The plaintiff purchased the building from Mr. Sonny Suieman Afzal by virtue of registered deed of sale dated 12.5.1989 and came in possession of the same as .owner thereof. The plaintiff's case was that the building premises was purchased by them for their own residential purposes and, therefore, they called upon the defendant-opposite party to vacate part of the building premises which was in their occupation as a tenant. It is further alleged that the defendant was apprised about the purchase of the property by the plaintiff and he was called upon to pay arrears of rent and vacate the suit premises. During the pendency of the suit the plaintiff-petitioner filed an application under Section 15 of the said Act praying for a direction to the defendant-opposite party to deposit the arrears of rent and also current rent as provided and the said application was contested by the defendant by filing rejoinder. The learned court below by the impugned order dated 22.9.1995 rejected the prayer of the plaintiff for depositing of rent.
3. Mr. Rajiv Kumar Verma, learned Counsel appearing on behalf of the petitioners assailed the order passed by the learned court below as being illegal and wholly without jurisdiction. Learned Counsel submitted that when the court below has come to a finding that the plaintiff has established prima facie title over the suit premises then there was no reason for rejecting the application of the plaintiff.
4. On the other hand, Mr. Asgar Hussain, learned senior counsel appearing on behalf of the defendant-opposite party supported the impugned order and submitted that when the relationship of landlord and tenant was not established then there was no occasion for the court below to make a direction for payment of rent as contemplated under Section 15 of the said Act.
5. I have gone through the impugned order passed by learned court below. It appears that in the re-joinder filed by the defendant to the application of the plaintiff under Section 15 of the said Act the relationship of landlord and tenant was denied. It was stated in the said re-joinder that the defendant is residing in the house in the capacity of owner. In other words, take defendant has claimed titled in himself on the basis of Heba (gift). Learned court below after considering all the facts and the documents filed by the parties came to a prima facie finding that the plaintiff has established title over the suit premises. However, the court below has held that the plaintiff has failed to establish that the defendant everpaid rent of the suit premises to the erstwhile owner Sonny Suleman Afzal. Learned court below therefore rejected the application of the plaintiff.
6. 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 that 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 title 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 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 Afzal. However, mere non-payment of rent cannot be a sole ground for rejecting the aplication under Section 15 of the said Act.
7. For the reason aforesaid, this civil revision application is allowed and the impugned order passed by the learned court below is set aside. However, in the facts and circumstances of the case, I direct the defendant-opposite party to deposit month to month rent only beginning from February, 1997 by 15th of the next following month and continue to deposit the said current rent till the disposal of the suit. The deposit so made shall not be withdrawn by the plaintiff till the suit is finally disposed of in their favour. It is made clear that the learned court below shall not be prejudiced by this order while deciding the suit and the same shall be decided on its own merit.