PETITIONER: BELA DAS & ORS. Vs. RESPONDENT: SAMARENDRA NATH BOSE DATE OF JUDGMENT11/12/1974 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. MATHEW, KUTTYIL KURIEN BHAGWATI, P.N. CITATION: 1975 AIR 398 1975 SCR (2)1004 1975 SCC (1) 644 CITATOR INFO : RF 1989 SC 162 (11,12) ACT: Landlord and tenant suit for eviction--Tenants plea that landlord alone could not maintain suit as there were other co-sharers-Siriking out defence on the ground of non-payment of arrears-Whether tenant could contest on basis of title. HEADNOTE: The respondent was tenant of certain premises. As a result of a decree in a partition suit the premises fell to the share of the appellants and they filed a suit for eviction. They also applied under s. 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for payment of arrears of rent, and the Court directed the respondents to pay into court the arrears and future rent. The respondent did not comply with the order and his detenue to the eviction suit was struck out. Thereafter. an ex-parte decree evicting the 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 that since the respondent had not admitted the appellants to be full owners of the prermises but contended that other co-sharers of the appellant's family had also shares therein, there was a denial of the relationship of landlord and tenant between the parties and so the order striking out the respondent's defence qua tenant 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 appellants and had paid rent to the appellants recognising them as his landlords. It was not therefore a case of denial of relationship of land lord and tenant between the parties. His plea was only that the appellants being landlords of a share of the premises could not by themselves claim a decree of eviction against him. Such a plea was a plea qua tenant and not dehors it. The striking out of his defence had thus, the effect of striking out all the defences raised by the respondent qua tenant including his defence that the appellants being co-sharer landlords were not entitled to maintain the suit for eviction. [1006 C-F] Mahabir Ram v. Shiva Shanker Prasad and Ors. A.I.R. 1968 Patna, 415 referred to. JUDGMENT:
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
Appellate decree No. 262 of 1969.
Purshottam Chatterjee and H. K. Puri, for the appellants.
R. B. Datar 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 a suit for eviction instituted by the former against
the latter from the suit premises situated in the town of
Patna. According to the-case of the plaintiffs the
defendant had been inducted as a monthly tenant of the
premises on a rent of Rs., 135/- per month. Subsequently,
as a result of a decree in a Parititon Suit between the
plaintiffs and
1005
their co-sharers the property was allotted to the former and
they became the absolute owners thereof. Plaintiffs wanted
to evict the defendant on the ground of non-payment of rent,
breach of the conditions of the tenency and on account of
their bonafide personal requirements of the suit premises.
The defendant in his defence took the plea that he was not
the tenant of the premises, the tenant was Liberty & Co. and
that the plaintiffs were not the absolute owners thereof, as
the decree for partition had been set aside in a first
appeal filed in the Patna High Court, there were others who
also were the landlords. Some other pleas were also raised
to resist the suit for eviction.
The suit was instituted on 27-9-1962. On 18-12-1963 the
Plaintiffs filed a petition under section 1 1 A 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 11A of the Act on the ground that besides them there
were other landlords of the building in question. But an
order under section 11A 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 directed that the
plaintiffs would not withdraw the amounts deposited in
pursuance of the order made under section 1 1 A 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 ex-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 plaintiff no. 3 examined as
plaintiffs’ witness no. 1. He supported their case in toto
including their claim that they were the absolute owners of
the building of which the defendant was the tenant. The
Munsif, third Court, Patna believed the evidence adduced on
behalf of the plaintiffs and passed on ex-parte decree
directing eviction of the defendant. The latter 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 Patna. A learned Judge of that Court
sitting singly allowed the appeal and remitted the case back
to the Trial Court for a fresh trial and decision after
allowing opportunity to the parties to adduce their evidence
in 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 section 1 1 A of the Act as also the order
striking out his defence as against ejectment. But it has
taken the view following the full Bench decision of the
Patna High Court in the case of Mahabir Ram v. Shiva
Shanker Prasad and other(1) that since the defendant had not
admitted the plaintiffs to be his 16 annas landlord there
was a denial of relationship of landlord and tenant between
the parties and as such the order striking out the defence
is against ejectment of the defendant qua
(1) A.I.R. 1968 Patna 415.
1006
tenant could not prevent him from contesting the suit on the
question of title. In our opinion the High Court has fallen
into an error of law 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
tenant but the tenant was Liberty & Co. was a mere pretence.
The High Court has also not thought it fit to remit the case
back because of this defence. The defendant was carrying on
the business in the assumed name of Liberty & Co. which was
not any legal entity or a 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 landlords of the premises in question. It was not a
case of denial of relationship of landlord and tenant
between the parties. In the case of Mahabir Ram A.I.R. 1968
Patna 415, the tenant had denied the title of the plaintiffs
and set up a title in himself. In the instant case the plea
of the defendant has been that the plaintiffs being
landlords of the suit premises for a moiety of share could
not alone claim a decree for eviction against him. Such a
plea set up by the defendant to resist the suit for eviction
was a plea qua tenant and not dehors it. The striking 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 plaintiffs alone being co-sharer-landlords
were not entitled to maintain the suit for eviction. It may
also be added that the learned Munsif in. his order dated 8-
7-1964 striking out the defence, which order was confirmed
by a Bench of the High Court in Civil Revision No. 824 of
1964 decided on 21-4-1964, bad pointed out on the basis of
the defendant’s statements in his written statement as also
in his rejoinder to the plaintiffs’ petition under section
11A of the Act that the defendant had admitted that he was
paying rent to the plaintiffs and had recognised them to be
their landlords. In that view of the matter also the
plaintiffs were the landlords of the suit premises occupied
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 the, defendant in this case that his entire
defence in the suit was in his capacity as a tenant and on
its striking out it was struck out as a whole. The hearing
of the suit ex-parte was, therefore, legal and valid. The
contrary view taken by the High Court is erroneous in law.
Mr. H. B. Datar, learned counsel for the respondent
endeavoured to persuade us to remit back the case to the
High Court for the rehearing of the second appeal in order
to find out whether the exparte decree passed on the
evidence adduced was sustainable, in law. 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 eviction was rightly decreed.
In the result this appeal is allowed but without costs. The
judgment of the High Court is set aside.
V.P.S.
Appeal allowed.
1 0 0 7