S M SHOAIB Vs. KAMLA DEVI MOTANI

JUDGEMENT

(1.) HEARD learned counsel for the appellant and the respondents. The defendant is the appellant against the judgment of affirmance. This appeal is directed against the judgment and decree dated 12.10.2001, passed by the leaned 1st. Addl. District Judge, West Champaran, Bettiah, in Title Appeal no. 57/98 (S.M.Shoaib V/s. Smt. Kamla Devi Motani), whereby he dismissed the defendant 'sappeal and upheld the judgment and decree dated 6.7.1998, passed by the learned Munsif, Bettiah, in Title Eviction Suit No. 159/94 (Smt. Kamala Devi Motani V/s. S.M. Shoaib). The trial court by his judgment has decreed the suit and ordered for eviction of the defendant from the suit premises on the ground of default in payment of rent. We shall go by the description of the parties in the plaint.

(2.) THE original plaintiff (Munnalal Motani) had instituted a suit for eviction of the defendant from the suit premises. The original plaintiff died during the pendency of the suit and was substituted by his widow and the son. According to the plaint, the plaintiff had let out the suit premises to the defendant for commercial purposes on a monthly rental of Rs. 400/ - per month. The defendant defaulted in payment of rent from June 1989 to July, 1994, as a result of which the plaintiff instituted the eviction suit. During the pendency of the suit, the defendant filed an application under section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter referred to 4/1/2013 Page 75 Karu Mian Alias Md.Karu,Gul Mohammad,Amina Khatoon Versus State Of Bihar as the 'Act ') for deposit of the rent which was allowed by order dated 17.5.95, and it was ordered that the defendant may deposit at the rate of Rs. 2000/ - per month provisionally until further orders of this Court. The defendant did not deposit the sum at all, as a result of which his defence was struck off in terms of section 15 of the Act by order dated 29.6.1998. Thereafter the defendant filed an application for amendment of the written statement to the effect that the suit premises consisted of two shops and he had been evicted from one of them during the pendency of the suit. The said application for amendment of the written statement was rejected by. the learned trial court by his order dated 26.6.96, and was upheld by order dated 27.9.96 passed in civil revision no. 1207 of 1996. As stated hereinabove, the suit was decreed by judgment dated 6.7.1998. The trial court held that there was default in payment of rent from June 1989 to July 1994, and decreed the suit for eviction and arrears of rent for three years prior to the institution of the suit. He futher held that the defendant had defaulted in deposit of the current rent in terms of the order dated 17.5.1995.

(3.) PURSUANT to the order of the Supreme Court, the parties were engaged in disposal of the issue of additional evidence before the court of appeal below which was after due consideration rejected by order dated 28.5.2001. Feeling dissatisfied with this order, the defendant preferred civil revision no. 1100 of 2001 in this Court which, according to the defendant (appellant) remains pending. The defendant did not take any interest in the Civil revision application and in view of the position that no stay order was passed the appellate court proceeded to dispose of the appeal by the impugned judgment whereby he has dismissed the appeal and upheld the findings of facts 4/1/2013 Page 76 Karu Mian Alias Md.Karu,Gul Mohammad,Amina Khatoon Versus State Of Bihar recorded by the trial court. In other words, he has held that the defendant was inducted as a tenant on a monthly rental of Rs. 400/ - per month. The defendant had defaulted in payment of rent for the period from June 1989 to July 1994, and has thereby rendered himself liable for eviction on the ground of default in payment of rent in terms of section 11 (1) (d) of the Act and the defendant is liable to pay the arrears of rent for a period of three years prior to institution of the suit. He has further held that the defendant failed to deposit the current rent in terms of the order of the trial court dated 17.5.95, and, therefore the trial court was right in passing the order dated 29.6.1998, whereby the defence of the defendant in terms of section 15 of the Act was struck off. Hence the present appeal at the instance of the defendant.