Patna High Court
Madan Sah vs Laleshwar Choubey And Anr. on 22 December, 1993
Equivalent citations: AIR1994PAT149, AIR 1994 PATNA 149, (1995) 1 RENCR 589, (1994) 2 PAT LJR 846, (1994) 1 BLJ 710, (1995) 2 RENCJ 192
JUDGMENT Nagendra Rai, J.
1. The tenant-petitioner has filed the present application under Section 14(8) of the Bihar Building (Lease, Rent and Eviction) Control Act (hereinafter referred to as the Act) against the order dated 30-4-1993 passed by the learned Munsif, Darbhanga, in Eviction Suit No. 31/92, by which he has decreed the suit of the plaintiffs-opposite parties for eviction against the petitioner and directed him to vacate the suit premises within the period fixed in the order, failing which the plaintiffs would be entitled to get the decree executed against the defendant through the process of the court.
2. The factual foundation essential for the disposal of the present application is that the plaintiffs-opposite parties filed the aforesaid suit for eviction against the petitioner on the ground of personal necessity.
3. The plaintiffs' case, in brief, is that they have their house on holding No. 34, Ward No. 10 in Mohalla Jurawan Singh in the district of Darbhanga. They are living with their family members in the said house and have constructed some shops on the southern side and let out the same to different tenants. They have also constructed one 'Enchari' with tiled roof and let out the same to the defendant-petitioner on a monthly rental of Rs. 200/- with Sahan. Plaintiff No. 2, who is son of plaintiff No. 1 is unemployed and he intends to start a business in plastic and plastic goods and the suit building is suitable place of starting the said business. The plaintiffs requested the defendant-petitioner to vacate the said building and on their refusal filed the present suit.
4. As the suit for eviction was filed on the ground of personal necessity, the procedure as provided under Section 14 of the aforesaid Act was followed. The court ordered for issuance of summons in ordinary course as well as under registered cover. Thereafter, in appears that the valid service reports were received in the court. After the receipt of the valid service reports the plaintiffs made a prayer before the court on 3-3-1993 to proceed with the suit ex parte as the defendant had not appeared in spile of service of summons. On the same date the court below fixed the suit for ex pane hearing on 31st March, 1993. On 31st March, 1993, the case was again adjourned to 22-4-1993. On that date a prayer was made by the plaintiffs to pass an order in terms of Section 14(4) of the Act, which was allowed and the learned Munsif heard the counsel for the plaintiff-opposite parties and passed the impugned order decreeing the plaintiffs' suit in their favour on the ground that the defendant had not appeared in spite of service of summons and as such he would be deemed to have admitted the claim of eviction.
5. In this case, though the vakalatnama has been filed on behalf of the opposite parties but no counsel appeared when the case was taken up for disposal.
6. Learned counsel for the petitioner contended that in this case the order of eviction is contrary to law in as much as the court below has passed the order of eviction only on the basis of deemed admission by the petitioner of the statement made in the suit by the landlord without considering the question as to whether on the basis of the facts deemed to have been admitted by the petitioner, the landlord-opp. party is entitled to an order of eviction.
7. The question for determination is as to whether after the deemed admission of the statements made by the landlord in the suit by the tenant due to his non-appearance after service of summons or due to refusal to grant leave to contest the suit as provided under Section 14(4) of the Act, the court has no option but to pass a decree on the basis of such statements or it has discretion to consider as to whether even on the basis of those admitted statements the plaintiff is entitled to an order/ decree for eviction or not.
8. To appreciate the point, it would be apt to quote sub-section (4) of Section 14 of the B.B.C. Act, which runs as follows:-
"The tenant on whom summons is duly served (whether by ordinary mail or registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided; and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid."
9. The suit filed by the landlord for eviction of the defendant from the suit premises on the ground of personal necessity, as mentioned in clause (c) and on the expiry of lease, as mentioned in Section 11(1) of the Act, is tried in accordance with the special procedure provided under Section 14 of the Act. In default of appearance of the defendant after service of summons or in the case of refusal to grant leave to contest the suit, the consequences as mentioned under Section 14(4) of the Act ensue. The statements made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order of eviction on the aforesaid ground. The word 'suit' as mentioned in Section 14(4) of the Act is not an appropriate word. It should have been 'plaint' in place of the suit for the reason that the suit is not defined under the Civil Procedure Code. Section 26 of the Act provides that the suit shall be instituted by the presentation of the plaint and, as such the statement made in the plaint by the landlord is deemed to be admitted by the tenant.
10. Pleading should contain only the material facts and not the law. In the plaint the plaintiff is required only to state the material facts on which he relies for his claim. He is not required to state the law or the legal inferences which are to be drawn from the facts. It is for the court to apply the law in a given case on the basis of the facts proved or admitted. The word "statement" made by the landlord in Section 14(4) means the statement of facts made by the landlord in the plaint in support of his case and not the statement of law. Only statement on facts should be deemed to have been admitted by the tenant.
11. Even after the deemed admission by the tenant of the statement made by the landlord in suit for eviction the duty is cast on the court to see whether on the basis of the admitted facts the plaintiff is entitled to a decree for eviction in law. The statements deemed to have been admitted by the court may not be sufficient to prove the requirement of Section 11(1)(c) or (e) of the Act and in such case the court is not bound to pass an order for eviction. In many cases the admitted statements may not disclose a cause of action at all or the facts stated therein may show that the suit is not maintainable on other ground. In a suit for eviction on the ground of personal necessity even if the court finds that the admitted facts prove the reasonable and bona fide need of the plaintiff and he is entitled to a decree for eviction on the said ground, it cannot pass an order for eviction unless he considers the question of partial eviction as required by proviso to Section 11(1)(c) of the Act. In my view, after the deemed admission of the statement made in the plaint by the tenant the plaintiff-landlord is not entitled to an order of eviction ipso facto, the court has to keep the law in mind and to decide as to whether on the admitted facts the plaintiff is entitled to an order for eviction in terms of Section 11(1)(c) of the Act. After the deemed admission of the statements of the plaint by the tenant, the function of the court is not a mechanical one in the sense that without considering the question whether the plaintiff is entitled to an order for eviction or not in law, it can pass an order of eviction only on the basis of deemed admission.
12. Coming to the facts of the present case, it is apparent that the court below has passed the order for eviction only on the ground that as the petitioner did not appear after service of summons on him, he will be deemed to have admitted the claim of eviction. The court below has not considered the question as to whether on the basis of the deemed admission of the statement by the tenant, a ground for eviction of the petitioner under Section 11(1)(c) of the Act was made out or not. It has also not considered the question of partial eviction, as provided by proviso to Section 11(1) (c) of the Act.
13. For all the reasons, the impugned order is set aside and the matter is remitted back to the court below to consider the same in accordance with law.