Saiyed Azam Kaifi v. Tahir Hussain Tegi

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.124 of 2016 ====================================================== Saiyed Azam Kaifi .... .... Appellant/s

Versus

Tahir Hussain Tegi .... .... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Arvind Kumar For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 02-09-2016 Heard learned Senior Counsel Mr. Baxi S.R.P. Sinha for the petitioner and Mr. Arun Kumar Sinha for the plaintiffrespondent. Perused the order dated 01.04.2016 passed by the learned Munsif, Sherghati, Gaya in Eviction Suit No.02 of 2015. It appears that the eviction suit has been filed by the plaintiff-respondent on the ground of personal necessity. The defendant-petitioner after summons appeared and filed affidavit praying for leave to contest on 09.11.2015. Thereafter the court below instead of hearing the parties on the said application according to the provision provided under Sections 14 (5) and (6) of the Bihar Building (Lease, Rent & Eviction) Control Act heard the parties under Section 89 of the Code of Civil Procedure. Subsequently the court below heard the parties on the application for several dates but by the impugned order dated 01.04.2016

Patna High Court C.Misc. No.124 of 2016 (4) dt.02-09-2016 rejected the affidavit filed by the defendant-petitioner seeking leave to contest the suit on the ground that there is no sufficient reason as to why this application to obtain leave was pressed earlier. Now after two stages i.e. hearing under Section 89 CPC and suggested issues are filed by the parties, the application is being pressed.

It may be mentioned here that under Section 14(5) it is the duty of the Court to give the leave to the tenant to contest the suit, if the affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for eviction. From perusal of the impugned order, it appears that the court below has not at all examined this aspect of the matter as to whether the affidavit filed by the tenant discloses any such fact to disentitle the landlord from obtaining an order of eviction but the court below has rejected the affidavit and application only on the ground that earlier it was not pressed and two stages have been passed without looking into the provision as contained in Section 14 wherein it is specifically provided that the suit for eviction on the ground of bonafide requirement shall be dealt with in accordance with the procedure specified in this Section. Therefore, the Court is required to deal the matter according to Section 14 of the B.B.C. Act. This procedure prescribed for disposal of eviction

Patna High Court C.Misc. No.124 of 2016 (4) dt.02-09-2016 suit on the ground of bonafide requirement is a special procedure and according to Section 14(7) the procedure is to be followed is the procedure of a Court of Small Causes. Therefore, no doubt there is no bar in framing the issues but at the same time it is not compulsory to frame issue according to special procedure. The court below did not consider all these aspects of the matter and on technical ground has rejected the application filed by the tenantpetitioner. Thus, this civil miscellaneous application is allowed. The impugned order dated 01.04.2016 passed by Munsif, Sherghati, Gaya in Eviction Suit No.02 of 2015 is hereby set aside. The court below is directed to pass a fresh order according to law on the affidavit filed by the petitioner after hearing the parties.

(Mungeshwar Sahoo, J) Harish/- U