MAHENDRA MOHAN DEY Vs. JYOTISH LAL SAHU

JUDGEMENT

(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 Sec. 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 Sec. 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 Sec. 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/s. 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 Sec. 14 of the BBC Act and as such, there was no scope to hold that the decree was passed under Sub -section (4) of Sec. 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 Sec. 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 Sec. 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.