RAJENDRA MAHTO Vs. HARI NARAYAN MAHTO

JUDGEMENT

(1.) The tenant-defendant of Eviction Suit No. 5 of 1984 of the court of Subordinate Judge, Madhubani has moved this Court against the order dated 11-7-1985 passed by the trial court by which it recalled its previous orders dated 31-5-1985 and 14-6-1 85. By the order, dated 31-5-1985 leave had been granted under the provisions of Section 14(4) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (Bihar Act 4 of 1983) (hereinarter referred to as the Act) and by the order dated 14-6-1985 the petitioner's written statement has been accepted in the suit which was fully covered by the provisions of Section 14 of the Act as the sole ground for eviction was alleged to be personal necessity. It is pertinent to take note of here that initially a composite suit was filed for eviction but subsequently the plaintiff opposite party (landlord) confined his suit for eviction only on the ground of personal necessity as laid down in Section 11(1)(c) of the Act for which a self contained Code has been incorporated in the Act in Section 14 thereof. Therefore for all practical purposes the suit is one which is governed purely by Section 14 of the Act.

(2.) There are only a few relevant facts necessary for the disposal of the case. On 23-4-1985 the trial court directed the plaintiff opposite party to deposit a cost of Rs. 32 for publication in the Gazette Notification for the appearance of the petitioner. As is provided for in sub-section (3) of Section 14 of the Act, the cost was deposited by the opposite party. As co-incidence would have it, the petitioner appeared thereafter on the same date i.e. on 23rd April, 1985, and prayed for time to file an affidavit. The next date fixed for further proceeding in the case was 31-5-1985. On that date the petitioner duly filed his affidavit stating the ground on which he sought to contest the suit and also prayed for leave to be granted to him. On 31-5-1985 itself the court accepted the affidavit filed on behalf of the petitioner and granted leave to contest the suit and the next date fixed was 14-6-1985 on which date the petitioner duly filed his written statement also which was accepted. As a matter of fact, on that very date an order was passed to the effect that issues shall be settled on 26-6-1985. Thereafter the opposite party plaintiff-landlord filed an application to recall the orders passed by the trial court both on 31-5-1985 and 14-6-1985 and these orders had been so recalled by the impugned order.

(3.) This application must succeed on some well-settled principles Firstly, when the cost of Gazette publication was deposited by the opposite party, the petitioner appeared and filed an application for time for doing the needful. On the very next date which was fixed i.e. 31-5-1985 the petitioner duly filed his affidavit, made a prayer for leave to contest the suit and the court below accepted the affidavit and granted leave to the petitioner to contest the suit for eviction. Thereafter on the next date i.e. 14-6-1985, as already stated above, a written statement was duly filed and accepted by the court below so much so that 26-6-1985 was the date fixed for the settlement of the issues in the suit. What has weighed with the trial court is that simultaneously with the appearance of the tenant defendant pursuant to the summons duly served on him he must file the affidavit stating the ground on which he seeks to make such contest and also to obtain leave from the court for doing it but that is not so. Section 14(4) mandates that the tenant, on whom the summon is duly served shall nol contest the prayer for eviction from the premises unless he files an affidavit.............and obtain leaves from the court as hereinafter provided (underlining is mine for the sake of emphasis). All that the statute in express term stipulates is that the tenant shall be deemed to have accepted the claim of the landlord and would be liable to eviction. There is a great difference between the words 'unless' and 'simultaneously'. All that the statute contemplates is that before the tenant is entitled to file a written statement he must file an affidavit stating the ground for contesting the eviction and he must obtain leave from the court to contest the suit. That is a pre-requisite. But it does not mean that in point of time it must be co-related with the time of the very moment of the appearance of the tenant defendant. The filing of the affidavit and obtaining of leave from the court must precede the filing of the written statement and contesting the suit and not that these two conditions must be fulfilled simultaneously with the very, first appearance of the tenant defendant. Taking any contrary view of the matter would be doing violence of the language of the legislature. If the view which has been taken by the court below be accepted as correct then there was no difficulty in the way of the legislature or the draftsman in saying so in categorical terms that the tenant on whom summons is duly served.........shall not contest the prayer for eviction from the premises unless he "simultaneously" files an application. To me at least it does not stand to reason as to how on the very moment of appearance the tenant defendant should be prepared with the affidavit containing the grounds. To test this by way of concrete example. Supposing X, a tenant, is served with a notice at 11.30 a.m. on a particular date living in the same town where the court is situate and soon thereafter he rushes to the court room on receipt of summons and after appearing before the court prays for time for filing the affidavit, obtaining leave and filing the written statement, would it be humanly possible to do all these things within a couple of minutes intervening the service of summons and the appearance of the tenant-defendant in the court. That could not have been the intention of the legislature at all and, therefore, intentionally the only word used in Section 14(4) of the Act is "unless he files an affidavit..........." If the tenant defendant has contested the suit even prior to the filing of the written statement he must obtain leave from the court which can be granted only when he files an affidavit stating the ground or grounds on which he seeks to contest the suit for eviction. In the instant case, the petitioner has done all that was required of him by the statute to do. First he filed an affidavit with the permission, although suit which was accepted, then he obtained leave from the court on the same date, and thereafter on the adjourned date he filed the written statement. There is no limitation prescribed for filing of the affidavit or obtaining leave from the court. The essence of the matter is that these two conditious must precede the filing of the written statement. In the present case they have preceded and not only that - the court has accepted the affidavit, granted the leave and accepted the written statement also on a subsequent date and fixed a date for settlement of issues. Even for the sake of academic discussion, if it he assumed that the statute mandates a simultaneous if not contemporaneous filing of the affidavit and obtaining the leave that is a duty fastened upon the court by the statute and the court has been given the right to accept it or to reject it. Having accepted it, it must be deemed that the court has waived its right and the plaintiff landlord in whose presence the entire proceedings were conducted has acquiesced in the matter and has waived any right following from any such technical formalities. But to take the line of least resistance, I may merely in the passing refer to the decision of this Court in the case of Ajit Kumar Sinha v. Anil Kumar Yadav and others, 1985 BBCJ 113, in which it has been laid down categorically that under Section 14 the court has the power and the right to extend the period for filing the writ statement after leave to contest the suit is granted. If the court has power to extend period for filing the written statement it has as much power to extend the time for filing the affidavit and obtaining the leave of the court. By accepting the prayer of the petitioner on 23-4-1985 granting time to file the written stat ment it follows inevitably that the court extended the time for filing the written statement and before that extended date the two pre-requisites namely, filing of the affidavit and the obtaining of the leave were already fulfilled by the petitioner. The court may have rejected the prayer of the petitioner on that date if it so chose. But by not doing so, rather allowing the prayer of the petitioner, it cannot now recall the order by which it had granted time to file the written statement and all that is required is that before the filing of the written statement the affidavit should be filed and leave should be obtained and that has been done by the petitioner in this case. Furthermore, there is no power of review laid down in Section 14 or anywhere else of the Act conferring such a power of review. If Section 14 of the Act be a self-contained code of prescribing summary procedure as I have indicated earlier, it goes without saying that the power of review being a creature of the statute and no such statutory provision having been engrafted in the Act, the so-called impugned Border recalling the previous orders in the garb of reviewing its own previous order is a manifestation of the trial court's erroneous exercise of jurisdiction.