BISHUN PRASAD GUPTA Vs. JAGMOHAN SWAROOP

JUDGEMENT

(1.) This second appeal by the defendant arises out of a suit for eviction under the Bihar Buildings (Lease Rent and Eviction) Control Act (hereinafter referred to as "the Act").

(2.) It is not necessary to state the facts of the case in detail for the decision of this appeal. On the 4th August, 1960, the trial court passed an order for deposit of rent under Section 11 -A of the Act. The defendant defaulted in making the deposit, and, by an order, dated the 4th September, 1961, his defence was struck off. Thereafter, the plaintiff examined a witness in support of his case, and an ex parte decree was passed in his favour. Thereupon, an appeal preferred by the defendant in the Court of appeal below was also dismissed. Hence, this second appeal to this Court by the defendant. It came up for hearing before a learned Single Judge, who was pleased to refer it to a Division Bench.

(3.) It is contended by Mr. J.C. Sinha, appearing for the appellant, that, on the allegations made in the plaint and the evidence adduced at the ex parte hearing, the plaintiff has failed to prove that the tenancy was determined, as required under Section 106 of the Transfer of Property Act, and, therefore, the ex parte decree passed in his favour has to be set aside. In support of this contention, he relies on the Full Bench decision of this Court in Niranjan Pal v. Chaitanyalal Ghosh 1964 B.L.J.R. 583, where it was held that the lease must be determined before the landlord could maintain an action for eviction of the tenant under Section 11 of the Act; and it was for the plaintiff to mention in the plaint the fact of determination of the lease as one of the facts constituting the cause of action, which he was required to give under Rule 1 of Order VII of the Code of Civil Procedure. It was further observed that it was for the plaintiff to prove that fact; and the defendant could take the point about the non -maintainability of the suit for eviction on this ground for the first time even in second appeal.