BELA DAS & ORS. versus SAMARENDRA NATH BOSE

BELA DAS & ORS.

SAMARENDRA NATH BOSE December 11, 1974

[K. K. MATHEW, P. N. BHAGWAT! AND N. L. UNTWALIA, JJ.)

J.a111llord cmd tena111-S11it for evic1io11-Tena111s p/;ea that landlord alone couhi 1io1 ma/main suit as there were other co-share.rs-Striking out defence 011 the ground of 1wn-pnyme11t of a/'l'ears--Whether tenant could contest <m basis of title.

The respondent was tenant of certain premises. As result of decr1:e in partition suit the premises fell to the share of the appellants and th1:y tiled suit for eviction. They also applied under s. llA of the Bihar lluildings (Lease, Rent and Eviction) Control Act, 1947, for payment ot urrears •Jf rent, and the Court directed the respondents L'O pay into court the arrears and futuie rent. The respondent did not comply with the .order and his defen.;e !o the eviction suit was struck out. Thereafter. an cx-parte dccr.ee evicting 1h~ respondent was passed and it was confirmed by the first appellate Court. In second appeal, the High Court remitted the case to the trial Court on the ground l:ha:t since the respondent had not admitted the appellants to be lull owners of the premises but contended that other co-sharers of the appd-lant's family had also shares therein, ther(: was denial of the relationship of landlo ·ct and tenant between the pa·rties and so the order striking out the respond·~nt's defence qua t,nant did not prevent him from contesting the suit on the question of title.

Allowing the appeal to this Court,

HELD·. The respondent had admitted that he was tenant under the appd-lants and h"'1 paid rent to the appellants recognising them as his landlorcls. It was not therefore case of denial ·of relationship of land lord and tenant betwe~n the parties. Hi-3 plea was only that the appella·nts being landlords of share of the p;emises cou,ld not by themselves claim decree of evktion against him. Such plea was plea qua tenant and not ctehors it. The striking out ·of his defence had thµs, the effe,:t of striking out all the defences raised by the respondent qua tenant including his <lefonce that the appellants being co-sharer landlords were not entitled to maintain the suit for evictic1n. f!006 C-F] •

Mahabir Ram v. Shiva Shanker Prasad and Ors. A.LR. 1968 Patna 415 referred to. ·

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 425 of 1970.

Appeal by Special Leave from the judgment & decree dated the 17th September, 1969 of the Patna High Court in Appeal from Appel-late decree No. 262 of 1969. ·

Purshottam Chatterjee and H. K. Puri, for the appellants.

R. B. Dutar and D. N. Mukherjee, for the respondent.

The Judgment of the Court was delivered by

UNTWALIA, J.-This appeal by the plaintiffs filed by special leave of this Court against the defendant respondent arises out of suit for eviction instituted by the former against the latter from the suit pre-mises situated in the town of Patna. According to the- case of the plaintiffs the: defendant had been inducted as monthly tenant of the premises on rent of Rs. 135/- per month. Subsequent-ly, as result of decree in Parititon Suit between the plaintiffs and

their co-sharers the property was allc'ted to the former and they be-came the absolute owners thereof. Plaintiffs wanted to evict the / defendant on the ground of non-payment of rent, breach of the condi• tions of the tenency and on account .of their bonafide personal require-ments of the suit premises. The defendant in his defence took the plea that he was not the tenant of ilhe premises, the tenant was Liberty iX Co. and that the plaintiffs were not. the absolute owners thereof, as the decree for partition had been set aside in first appeal filed in the Pama High Court, there were others who also were the landlords. Some other pleas were 11lso raised to resist the suit for eviction. ·

. · The suit was instituted on 27-19-1962. On 18•12~1963 the plaintiffs filed petition under section 1 lA of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947-hereinafter called the Act-for directing the defendant to pay the arears of rent as also the current and future rent. The defendant resisted the claim of the plaintiffs under section l lA of the Act on the ground that besides thein there were other landlords of the building in question. But an order under section l lA of the Act was made against the defendent by the Trial Court on 6-2-1964. To safeguard the interest of the defendant the Court direc-ted that the plaintltfs would not withdraw the amounts deposited in . p\irsuance of the order made under section llA of the Act until the disposal of the suit. The defendant defaulted in compliance with the order. Hence his defence as against ejectment was struck: out by an order of the Trial Court made on 8-7-1964. The suit was eventually taken up for cx-parte hearing on 1·7-1967. The defendant wanted to obstruct the hearing of the suit proceeding ex-parte but failed.

At the ex-parte hearing p~aintiff no. 3 examined as plaintiffs' wit· ness no. 1. He supported th.cir case in tote including their claim that they were the .absolute owners of the building of which the defendant was the tenant. Thp Munsif, third Court, Patna believed .the evidence adduced on behalf of the plaintiffs af!d passed on ex-parte decree directing eviction of the defendant. The fatter went up in appeal which was dismissed bY Subordinate Judge, First Court, Patna on 21-4·1969. All arguments raised on behalf of the defendant appellant to challenge the ex-parte decree failed. He preferred second appeal no. 262/1969 in the High Court of Judicature at P•atna. learned Judge of that Court sitting singly allowed the appeal and remitted the case back to the Trial Court for fresh trial and decision after allowing opportu-nity to the parties to adduce their evidence ia the light of the Judgment of the High Court. The plaintiffs appellants challenge the propriety and legality of the High Court Judgment passed in the second appeal.

The High Court rejected some of the contentions raised of behalf of the defendant to challenge the legality of the order made under o.ection l lA of the Act as also the ordeP striking out his defence as .gainst ejectment. But it bas taken the view following the full Bench decision· of the Patna High Court in the case of Mahabir Ram v. Shiva Shanker Prasad and oth<:r(') that since the defendant had not admitted the plaintiffs to be his 16 annas landlord there was denial of relation-ship of landlord and tenant between the parties and as such the order striking out the defence as against cjectment of the def;;-ndant qua ··(!) A.I.R. 1968 Patna 415.

1 Ootl

tenant could not prevent him from contesting the suit on the question of title. In <)ur opinion the High Court has fallen into an error of faw in applying the ratio of the Full Banch decision of the High Court referred to above to the facts of the instant case.

The defence set up by the defendant that he was not the. tena.nt but the tenant was Liberty & Co. was mere pretence. The High Court has also not thought it fit to remit the case back because of thi> defence. The defendant was carrying on the business in the assumed name of Liberty & Co. which was not any legal entity or person different from the defendant.

The defendant had admitted that he was the tenant under the plaintiffs but was merely asserting that there were some more randlords of the premises in question. lt was not case of denial of relation-ship of landlord and tenant between the perties. In ~he case of Maha-C bir Ram A.l .R. 1968 Pat1rn 4 J 5. the tenant had denied the title of the plaintiffs and set up title in himself. In the instant case the pica of the defendant has been that the plaintiffs being landlords of the suit premises for moiety of share could not alone claim decre for evic-tion against him. ~uch plea set up by the defendant to resist the suit for eviction was .plea qua tenant and not dehors it. The strik-ing out of the defence on 8-7-1964 had the effect of striking out all· defence raised by the defendant qua tenant including his defence that the plain\iffs alone being co-sharer-landlords 'were not entitled to main-tain the suit for eviction. It may also be added that the !carnied Munsif in his order dated 8-7-1964 striking out the defence, which order was confirmed by Bench of the High Court in Civil Revision No. 824 of 1964 decided on 21-4-1964, had pointed out on the basis or the defendant's statements in his written statement as also in his rejoinder to the plaintiffs' petition under section 1 lA of the Act tlrnt the defendant had admitted that he was paying rent to the plaintiffs and had recognised them to be their landlords. fa that view of the matter also the plaintiffs were the landlords of the suit premises occu-pied by the defendant within the meaning of clause ( d) of section 2 of the Act. In either view of the matter there is no escape for tll1e 1[, ]defendant in this case that his entire defence in the suit was in his capacity as tenant and on/ its striking out it was struck out as whole. The hearing of the suit ex:,parte was, therefore, legal and valid. The contrary view taken by the ·High Court is erroneous _in Jaw.

· whole. The hearing of the suit ex:,parte was, therefore, legal and valid.

Mr. H. B. Datar, learned counsel for the respondent endeavoured to persuade us to remit back the case to the High Court for the rehe•aring of the second appeal in order to find· out whether the ex-parte decree passed on the evidence adduced was sustainable, in Jaw. We did not feel persuaded to accede to this request of the counsel as on perusal of the judgment of the Trial Court as also of the first appellate Court we found no error of law in them. The suit for evic-tion was rightly decreed.

In the result this appeal is allowed but without costs. The judg-ment of the High Court is set aside.