Jharkhand High Court
Mohammad Imteyaz Ahmad vs Abdul Quayum And Ors. on 23 January, 2003
Equivalent citations: 2003(51)BLJR484, [2003(2)JCR145(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. This revision application is directed against the order dated 7.12.2002 passed by Sub-Judge, IV, Dhanbad in Title (Eviction) Suit No. 1/2001 whereby he has allowed the application filed by the plaintiffs/opposite parties under Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (in short the said Act) and directed the defendant-petitioner to deposit the arrears of rent from June, 1998 as also the current rent on or before the 15th day of the continuing month.
2. The facts of the case lie in a narrow compass. The plaintiffs/opposite parties who are the sons of Hazi Sahadul Mian, filed the aforementioned suit for eviction of the defendant-petitioner from the suit premises and also for recovery of arrears of rent. Plaintiffs' case is that they are the owners of the suit premises and the defendant is the monthly tenant under them on monthly rent of Rs. 175/- per month. It is alleged that the defendant defaulted in payment of rent from March, 1998 and as such, became liable for eviction.
3. The defendant-petitioner contested the suit by filing written statement denying and disputing the relationship of landlord and tenant. Defendant's case is that the suit premises was constructed by his father-in-law, Md. Yasin who Is the brother of the plaintiffs and he has been residing with his father in-law in the suit premises with his family members. It is alleged that the defendant was never inducted by the plaintiffs as tenant in the suit premises nor he has ever paid rent to them. As a matter of fact, the suit premises was allotted in the share of the father In-law of the defendant who has been residing there with His daughter.
4. During the pendency of the suit the plaintiffs filed a petition under Section 15 of the said Act for direction to the defendant to deposit arrears of rent as also the current rent. In support of his claim the plaintiffs filed counter foil rent receipt book showing payment of rent by the defendant to the plaintiffs.
5. The court below, on the basis of the counter foil rent receipt book, prima facie held that there is non-payment of rent from May, 1998 and, accordingly, the impugned order was passed. The relevant portion of the order reads as under-
"On perusal of the record I find that the plaintiff has filed rent receipts from 5.4,95 to 5.5.98 which shows that the defendant, Md. Imtiyaz Ahmad is paying @ Rs. 175/- to the plaintiff but after 15.5.98 there is no payment receipt, In plaint the plaintiff has claimed recovery of arrear rent from March, 1998 to till today but rent receipt shows that rent has already been paid up to May, 1998. At this stage it is prima facie established by the plaintiff that the defendant is his tenant. So, the defendant has to pay monthly rent and arrear rent to the plaintiff. The petition under Section 15, BBC Act filed by the plaintiff is allowed and defendant is directed to pay arrear rent from June, 1998 to up till now within the next date and defendant is also directed to pay the current rent on and before 15 (fifteen) days of continuing month. Put up on 27.11.2002 for settlement of issues (Dictated)"
6. Mr. S.K. Sharma, learned counsel for the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the court below before passing the impugned order, has not prima facie determined the relationship of landlord and tenant between the parties. Learned counsel submitted that on the basis of the counter foil rent receipt book which does not bear the signature of the defendant-petitioner, has erroneously come to a finding that the defendant is a tenant.
7. Mr. M.M. Banerjee, learned counsel for plaintiffs/opposite parties, on the other hand, submitted that when the defendant appeared and contested the suit for eviction by filing written statement, the court is empowered to entertain the ap-
plication and pass order under Section 15 of the said Act. Learned counsel submitted that if there is a dispute about the relationship of landlord and tenant then the court may direct the plaintiffs/landlord not to withdraw the amount but in any case the defendant is bound to deposit the money.
8. Before appreciating the rival contentions of the parties I would first like to refer to Section 15 of the said Act which reads as under-
"Deposit of rent by tenants in suits for ejectment.--(1) If, In a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the court after giving opportunity to the parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before (or after the institution of the suit if any and on failure of the to deppsit the arrears of rent within 15 days of the date of order or the rent at such rate for any month by the 15 day of the next following month, the court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross examine the landlord's witnesses (2) If in any proceeding referred to in Sub-section (1) there is any dispute as to the person or persons to whom the rent is payable the court may direct the tenant to deposit in court the amount payable by him under Sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the court decide the dispute and makes an order for payment of the same. (3) If the Court is satisfied that any dispute referred to in Sub-section (2) has been raised by a tenant for reasons which are false and frivolous the court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in Sub-section (1)"
9. 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 pretense.
10. In the case of Mahabir Ram v. Shiva Shankar Prasad and Ors., AIR 1968 Pat 415 a Full Bench of the Patna High Court while considering the scope of Section 15 of the Act held-
"Another decision of this, court in Parbati Kueri v. Sugn Chand Jain, AIR 1967 Pat 415, is relevant while interpreting the provisions of Section 11A. The suit 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 arrears 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 arrear as rent. On those findings the court below directed the defendant to 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 in to 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 lordships referred to a 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 plaintiffs case in support of the petition under Section 11A was correct or not and the finding given at that stage was finding only for the purpose of Section 11A of 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 have 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 restored to by the landlord."
11. 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.
12. Coming back to the instant case, as noticed above, the only pleading of the plaintiffs is that they are the owners of the suit premises constructed by them and the defendant is the monthly tenant. Paragraphs 1 and 2 of the plaint are worth to be quoted hereinbelow:--
"1. That the plaintiffs are the owners of the house premises constructed by them described in Schedule A below at mouza Chitarpur within the jurisdiction of this court.
2. That the defendant is a monthly tenant under the plaintiffs on a monthly rent of Rs. 175/- per month payable according to the English Calander month in respect of the schedule A premises."
13. The aforesaid paragraphs 1 and 2 of the plaint have been controverted in paragraphs 7 to 10 of the written statement filed by the defendant-petitioner. Paragraphs 7 to 10 of written statement are reproduced hereinbelow:--
"7. That the statements made in para 1 of the plaint are totally false and incorrect arid this defendant vehementally denies that the plaintiffs are the owners of the house premises detailed in schedule A of the plaint and it is also denied that the house premises constructed by them. The plaintiffs did not construct the house premises by themselves. They never possesses the schedule A property of the plaint
8. That the house premises described in schedule A of the plaint has been constructed by Md. Yashin s/o late Hazi Sahadul Mia, the father in-law of the defendant (Mohammad Imtiyaz) who has been in possession thereof and has also been residing therein with their family members wife and only daughter and son in-law Mohammad Imtiyaz Ahmad, and that the said house was allotted to Mohammad Yashin on partition.
9. That the statements made in para 2 of the plaint are also false and untrue and incorrect. The defendaht-Moham-mad Imtiyaz Ahmad is not a tenant under the plaintiffs nor did he ever inducted as a tenant by the plaintiffs in respect of the house as detailed in schedule A of the plaint.
10. That there is no relationship of landlord and tenant between the plaintiffs and the defendant (Mohammad Imtiyaz Ahmad) ever existed or in respect of the Schedule A land and house of the plaint and the question of payment of monthly rent @ Rs. 170/- (one hundred seventy) does not arise at all The defendant never paid rent as stated in paras 2 and 3 of the plaint to the plaintiffs. As there is no relationship of landlord and tenant the payment of monthly rent or any rent does hot arise according to the English Calendar month or any date."
14. Admittedly the father-in-law of the defendant is the brother of the plaintiffs and it is the specific case of the defendant that the suit premises was constructed by his father-in-law and was allotted to his father-in-law in partition where the defendant and his family members are living along with the father-in-law.
15. Having regard to pleadings of the parties the court below ought to have recorded a prima facie finding with regard to relationship of landlord and tenant. For that purpose the counter foil rent receipt book produced by the plaintiffs which does not bear the signature of the defendant, cannot be a conclusive evidence for recording a prima facie finding with regard to relationship of landlord and tenant When the defendant contested the suit and questioned the title of the plaintiffs over the suit premises, the plaintiffs were required to produce before the court some material evidence in support of their claim of title and possession over the suit premises. The counter foil rent receipt book can be created and manufactured at any time by any person. The matter would have been different when the counter foil rent receipt book bears the signature of the defendant acknowledging payment of rent and receiving rent receipt. The court below, therefore, in my opinion, has committed serious error of law in passing the Impugned order simply by showing the counter foil rent receipt without investigating the question and wiihout determining- that prima facie relationship of landlord and tenant exists between the parties. The impugned order, therefore, cannot be sustained in law.
16. For the aforesaid reasons this civil revision application is allowed and the impugned order is set aside. The matter is remitted back to the court below for considering the application under Section 15 of the said Act afresh after giving opportunity of hearing to the parties.
17. Before parting with this Order 1 must clarify that while disposing of the application under Section 15 of the Act or even while disposing of the suit the court below shall not be influenced by any of the observation made in this order.