IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.317 of 2009
Vijay Kumar Srivastava S/O Late Prabhunath Prasad Srivastava
Resident of Mohalla Azad Nagar, Road No.1,P.O.Lohiya Nagar,
P.S.Kankarbagh, Dist-Patna
Petitioner
Versus
Shri Premchnad Prasad S/O Late Ram Dayal Sah
Resident of Mohalla Azad Nagar,Road No.1,P.O.Lohiya Nagar,
P.S.Kankarbagh,Dist-Patna
Opposite party
with
MJC No.880 of 2010
Vijay Kumar Srivastava S/O Late Prabhunath Prasad Srivastava
Resident of Mohalla Azad Nagar, Road No.1,P.O.Lohiya Nagar,
P.S.Kankarbagh, Dist-Patna
Petitioner
Versus
1.Shri Premchnad Prasad S/O Late Ram Dayal Sah
Resident of Mohalla Azad Nagar, Road No.1,P.O.Lohiya Nagar,
P.S.Kankarbagh, Dist-Patna
2. Shri Akhilesh Kumar Singh Execution Munsif-III,Patna
Opposite parties
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For the petitioner: Mr Prakash Srivastav, Advocate
Mr Shyam Kishore Das, Advocate
For the opposite party: Mr. Raghib Ahsan, Sr. Advocate
Mr Pravas Ranjan, Advocate
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PRESENT
Hon‟ble Mr Justice S. NAYER. HUSSAIN
S.N.Hussain,J Civil Revision No. 317 of 2009 has been filed by the sole
defendant- petitioner challenging the order of his eviction vide
judgment dated 12.01.2009 by which Munsif III, Patna decreed
Eviction Suit No. 48 of 2005 on contest with cost.
2. The aforesaid eviction suit was filed by the sole plaintiff-
opposite party for eviction of the defendant- petitioner from the suit
premises detailed in Schedule II of the plaint namely ground floor flat
containing three bed rooms, a verandah, a dining space, a kitchen, a
latrine, a bath room as well as open space with frontage bearing
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Holding no. 2911/1, Circle no.8A Ward no. 4 (new 3) of Patna
Municipal Corporation situated in Mohalla Azad Nagar, Kankarbagh
Road no. II, within Kankarbagh police station in the Town and District
of Patna on the sole ground of bonafide personal requirement, reserving
his right to file another suit for eviction of the defendant on other
grounds of default in payment of rent and breach of terms of tenancy
etc. The following reliefs were sought by the plaintiff in his plaint.
i) A decree of eviction of the defendant in favour of the
plaintiff from Schedule II property;
ii) a decree for the cost of the suit in favour of the
plaintiff;
iii) Any other relief or reliefs to which the plaintiff is
deemed entitled.
3. Originally, the said eviction suit was filed by Sri
Premchand Prasad along with his wife Smt. Meena Devi claiming that
original owners of the suit property were Sri Kameshwar Prasad Singh
and his wife Smt. Meri Singh who sold the entire house detailed in
Schedule I of the plaint, a portion of which is the suit premises detailed
in Scheduled II of the plaint, by registered deed dated 19.06.2003 to the
plaintiffs. It was also claimed that the plaintiffs had three sons and a
daughter and plaintiff no.1 Sri Premchand Prasad having retired from
a government post was living in the non-rented portion of the house
which was not sufficient for his large family and hence he required the
suit premises so that his entire family can be adjusted.
4. Subsequently, the plaintiffs filed an application for
amendment of the plaint which was allowed by the trial court on
13.02.2008. As per the said amendment the name of plaintiff no.2 Smt.
Meena Devi was deleted and paragraph 6(a) was added in the plaint.
By the said amendment, it was claimed that during the pendency of the
suit there was a litigation bearing Lok Adalat Case No. 307 of 2006
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filed by a son of the plaintiff against other members of the family, but
subsequently there was amicable settlement between all the members
of his family and a joint compromise petition was filed in the said case
which was allowed by the Patna Lok Adalat vide its order dated
13.02.2007 making the compromise petition part of the said order.
According to the said compromise, the suit premises detailed in
Schedule II of the plaint was allotted to plaintiff no.1 whereas other
portions of the said house as well as of the other house were allotted to
the share of other members of the family. Hence it was claimed by
plaintiff no.1, who remained as sole plaintiff of the suit, that having no
other property left he required the suit premises for his own residence
as he had already retired from his service.
5. The defendant appeared in the suit and contested the claim
of the plaintiff stating that defendant was the tenant in the suit premises
since much prior to the plaintiff‟s purchase and after his purchase he
had been paying rent to the plaintiff regularly. It was also claimed that
the electric charges were included in the rent of Rs 2,300.00 per month
and had to be paid by the plaintiff to the Electricity Department but the
plaintiff did not deposit the said electric charges to the Electricity
Department due to which the electricity of the suit premises was
disconnected. Hence the defendant had to file BBC Case No. 60 of
2005 before the House Controller who vide his order dated 25.02.2006
allowed the said case and directed the plaintiff to pay the electric bills
of the suit premises and the said order of the House Controller was
affirmed by the Collector and the Commissioner in appeal and revision
filed by the plaintiff and immediately thereafter Lok Adalat Case was
instituted merely for the purpose of ousting the defendant, as the
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plaintiff had no intention to pay the electricity bills and wanted to oust
the defendant for getting higher rent. It was also stated that Lok Adalat
Case was showy and the plaintiff and his family had sufficient
accommodation in the house detailed in Schedule I of the plaint as well
as in the adjacent house and the requirement alleged by the plaintiff
was not genuine and bonafide.
6. Considering the respective pleadings of the parties and
also considering the issues suggested by them the trial court framed
following issues for deciding the suit:-
i) Whether the suit filed by the plaintiff is
maintainable?
ii) Whether the plaintiff has got any cause of action or
right to sue?
iii) Whether the suit has been filed within the time of
limitation?
iv) Whether there is relationship of landlord and tenant
between the plaintiff and the defendant?
v) Whether the plaintiff has got personal necessity of
the suit premises which is bonafide?
vi) Whether the defendant is liable to be evicted from
the suit premises?
vii) Whether partial eviction will satisfy the plaintiff or
not?
viii) Whether the plaintiff is entitled to any other relief
or not?
7. In support of his claim, the plaintiff produced six witness,
out of whom PW 5 was the plaintiff himself, PW 4 was his son and PW
1 was his wife, whereas PW 6 was formal in nature, apart from whom
there were two independent witnesses namely PW 3 who was his
neighbour and PW 2 who was his other tenant and both of them fully
supported the claim of the plaintiff.
8. The plaintiff also produced several documentary evidence
out of which exhibit 1 series were Municipal receipts; exhibit 2 was
legal notice sent by the plaintiff to the defendant; whereas exhibits 3, 4
5 and 6 were UPC, receipt, envelope and acknowledgement due
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showing service of the said notice; exhibit 7 was the sale deed dated
19.06.2003 executed by the original owner in favour of the original
plaintiff; exhibit 8 was salary certificate; exhibit 9 was Malguzari
receipt of the original owner; exhibit 10 series were counter foils of
Kirayanama; exhibit 11 was marriage card; exhibits 12 and 13 were
ordersheet and award of Lok Adalat Case No. 307 of 2006.
9. On the other hand, the defendant produced three witnesses,
out of whom DW 1 was the defendant himself, DW2 was his brother
who supported the case of the defendant and DW3 was a petty
contractor through whom the defendant took work. Apart from the
aforesaid witnesses, the defendant produced documentary evidence,
namely exhibit A series which were rent receipts showing payment of
rent by the defendant to the plaintiff and exhibit B series which were
money order A/d sent by the defendant to the plaintiff.
10. Considering the respective pleadings and evidence of the
parties, Munsif III, Patna vide his judgment dated 12.01.2009 decreed
the suit on contest with cost and ordered for eviction of the defendant
after arriving at following findings:-
a) Defendant has accepted that he was a tenant of the
plaintiff. Hence there is relationship of landlord and
tenant between the plaintiff and the defendant.
b) Plaintiff has got personal necessity of the suit
premises which seems to be bonafide and the defendant
is liable to be evicted from the suit premises
c) Partial eviction of the defendant from the suit
premises is not possible as it is a flat consisting of three
bed rooms, dining space, one kitchen, one latrine, one
bathroom, which can not be partitioned.
11. Against the aforesaid judgment and order of eviction the
sole defendant filed the instant civil revision under the Proviso to Sub-
Section (8) of Section 14 of the Bihar Buildings (Lease, Rent &
Eviction) Control Act, 1982 (hereinafter referred to as „the Act‟ for the
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sake of brevity) and the said civil revision was admitted for final
hearing vide order of this court dated 06.07.2009. The sole opposite
party who was the plaintiff in the trial court also appeared in the instant
revision and filed Caveat No. 14 of 2009 contesting the claim of the
defendant- petitioner.
12.At the time of final hearing of the case, the petitioner has
raised two points for consideration and this court has formulated the
said two points raised by the petitioner for deciding the instant civil
revision, which are as follows:-
i) Whether the grounds set forth by the plaintiff-opposite
party for eviction of the defendant- petitioner on the
ground of personal necessity was reasonable?
ii) Whether application filed by son of the plaintiff-
opposite party before Lok Adalat for partition of the
entire property and compromise petition filed therein
were bonafide or were merely to defeat the claim of the
defendant- petitioner?
13. So far the first point raised by learned counsel for the
defendant- petitioner is concerned, it is claimed that originally eviction
suit was filed by two plaintiffs namely Premchand Prasad and his wife
Smt. Meena Devi, claiming necessity of the entire family including
their children with respect to the suit premises. But the defendant
claimed that there was no documentary evidence at all to prove the said
personal necessity as plaintiffs had two houses , out of which house
detailed in Schedule I of the plaint was a double storied house over
two kathas ten dhurs of land having two flats on each floor whereas the
adjacent house was a triple storied house over two kathas of land
having two flats on ground floor and on first floor whereas there was a
fifth flat on the second floor from where the said house was also
connected to Schedule I house. Hence it was claimed that the plaintiff-
opposite party had totally nine flats situated exactly at the same place
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and out of them only two flats occupied by the defendant as well as
PW2 were on rent whereas remaining seven flats were vacant which
were sufficient for the requirement of the plaintiff and his family. It is
also claimed that existence of the said facts were admitted by the
plaintiff‟s witnesses themselves.
14. It was further claimed by the defendant- petitioner that
one son of the plaintiff was working in Bihar Sanchar Nigam Limited
and had gone to Faizabad for training, whereas second son of the
plaintiff was in Research work in Delhi and third son of plaintiff was
doing Management in S.P. Jain College, Mumbai whereas the
plaintiffs‟ daughter was married and was living with her husband. It
was also averred that the said facts were admitted by the plaintiff‟s
witnesses themselves. Hence it was claimed that plaintiff had no
bonafide and genuine personal requirement of the suit premises.
15. So far the second point raised by learned counsel for the
defendant- petitioner is concerned, it is claimed that Lok Adalat Case
no. 307 of 2006 was filed for partition of the entire joint family
property including the suit premises before Lok Adalat Patna in the
year 2006 immediately after passing of orders dated 25.02.2006 and
28.06.2006 by the House Controller and the Collector in BBC Case No.
60 of 2005 and BBC (Appeal) No.05 of 2005-06 directing the plaintiff
to pay electric charges of the suit premises . Hence it was claimed that
the said order and award of Lok Adalat was not bonafide and was
prepared due to collusion of the parties in Lok Adalat who were all
family members of the plaintiff of this eviction suit and was filed
merely with a view to some how defeat the claim of the defendant-
petitioner in the eviction suit so that he may be ousted from the suit
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premises.
16. On the other hand, learned counsel for plaintiff-opposite
party has stated that earlier suit for eviction was for the personal
necessity of the plaintiff‟s family but after order of partition passed by
Lok Adalat dated 13.02.2007, only the suit premises was left in the
share of the plaintiff and hence it remained the only place where the
plaintiff could reside and which he required genuinely for himself. It
was also claimed that monthly rental of the suit premises was Rs
2,300/- which excluded electric charges. It was also stated that although
the defendant- petitioner had claimed that the said electric charges
were not included in the rent but he had failed to produce order of the
House Controller and the Collector regarding payment of electric dues.
17. It was also claimed by the plaintiff-opposite party that
subsequent event namely partition of the property by Lok Adalat vide
order and award dated 13.02.2007 (exhibits 12 and 13) had to be
considered in such case and the trial court after hearing all the parties
rightly passed the impugned order. It was also claimed that paragraph 6
(a) was added in the plaint by amendment at the instance of the
plaintiff, in which the statement with regard to the aforesaid subsequent
event i.e. order and award of Lok Adalat was detailed and the said
amendment was allowed by the trial court vide order dated 13.02.2008,
but the said order was never challenged by the defendant. Hence it was
claimed by the plaintiff -opposite party that in the said circumstances,
no case of the defendant- petitioner is made out and the civil revision is
fit to be dismissed.
18. After considering the arguments of learned counsel for
parties as well as their pleadings and evidence on record, it is quite
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apparent that the relationship of landlord and tenant between the
plaintiff and the defendant with respect to the suit premises is admitted.
The only dispute between the parties is with regard to the genuiness of
plaintiff‟s claim of personal necessity as the defendant had claimed that
the plaintiff and his family had got nine flats in the vicinity including
the house in question as well as its adjacent house and out of those nine
flats only two flats were in occupation of the tenants including the
defendant whereas remaining seven flats were vacant which could have
been used by the plaintiff and his wife as his sons were in service and
his daughter was married and was living with her husband.
19. In this regard the defendant- petitioner had two fold
objections; firstly, that the order and award of partition passed by Lok
Adalat was not bonafide; and secondly that on the basis of subsequent
event the suit for eviction can not be decreed as crucial date to
determine personal necessity was the date of filing of the suit.
20. From the pleadings of parties specially the claim of the
defendant, it is quite apparent that all the properties concerned
belonged to joint family of the plaintiff but his children were living
separately. Hence any of the said children of the plaintiff were quite
justified in filing a case for partition of the joint family property rather
it was quite natural for a member of the joint family in such
circumstances to seek partition of the joint family property. Hence, no
malafide can be attributed to the son of the plaintiff or to any other
member of the family including the plaintiff in the filing of the said
Lok Adalat Case or in the filing of the compromise petition therein on
the basis of which order was passed and award was prepared for
partition of the joint family property. Although onus was squarely upon
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the defendant- petitioner to prove the claim of malafide but from the
evidence on record it transpires that he had miserably failed to prove
the same by any piece of evidence in as much as exhibit A series and
exhibit B series produced by him were only rent receipts and money
order A/d sent by the defendant to the plaintiff which had no concern
with the said issue whereas three witnesses have been produced by the
defendant including himself as DW 1 and his brother as DW 2 as well
as his contractor as DW 3 who also could not prove any such malafide.
21. It may be noted here that much importance has been
placed by the defendant- petitioner on the order of the House Controller
and the Collector passed in BBC Case and BBC Appeal directing the
plaintiff to pay electric charges but the said orders were not even
exhibited in the suit. However, the defendant has annexed the said
orders as annexures 4 and 4/A to the civil revision petition but a perusal
of the same does not show that there was any bar in filing Lok Adalat
Case for partition. From the said materials on record there appears to be
no connection between the said BBC Case and Lok Adalat Case or the
orders passed therein as in any view of the matter, the plaintiff is bound
to comply the said orders of the House Controller and Collector if not
reversed by any higher court. Furthermore, the order and award of the
Lok Adalat is final and binding on all persons concerned. Law is also
well settled in this regard that in a suit for eviction on the ground of
personal necessity, a tenant has no locus standi to challenge landlord‟s
title over the suit property on the ground of validity of a partition
decree specially when the relationship of landlord and tenant is not
denied. Reference in this regard may be made to a decision of this court
in the case of Abdul Rashid vs Smt. Kishori Singh Sikriwal reported in
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2000(I) PLJR 438.
22. The crucial date for determining the requirement of the
plaintiff is also in dispute as the defendant- petitioner relying upon a
decision of a Division Bench of this court in the case of Madhusudan
Prasad Agarwal vs Smt. Shusma Bala Dasi and another reported in AIR
1979 Patna 6 has claimed that crucial date to determine the requirement
of the plaintiff is date on which suit is filed and hence the trial court
had to see the situation on the date of filing of eviction suit in the year
2005 when there was no such partition in the family and had no
authority or jurisdiction to look into the subsequent event of partition
in the family and award prepared by Lok Adalat. From a reading of
the aforesaid case law, it is quite apparent that it was passed absolutely
in a different set of facts as in that case it was the defendant tenant who
was claiming that although on the date of filing of the suit the plaintiff
landlord had no other vacant premises but subsequently he was able to
take possession of another portion of the same building. Here in the
instant case matter is absolutely different as it is the plaintiff who has
claimed subsequent event during the pendency of the suit itself
claiming that during the pendency of the suit there was an award of
partition by Lok Adalat, according to which the suit premises was the
only premises left for the plaintiff. In the instant case, the said
subsequent event was pleaded by the plaintiff in the eviction suit by
way of amendment in the plaint which was allowed by the trial court
and the said order allowing amendment having not been challenged by
the defendant has attained finality. Thus the said case law relied upon
by the petitioner namely Madhusudan Prasad Agarwal (Supra) is not
applicable in this case.
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23. In the facts involved in this case the cause of action as to
personal necessity of the plaintiff with respect to the suit premises has
to be in existence on the date on which order of eviction was passed as
has been held by a bench of this court in the case of Tapsendra Nath
Lal vs Norodh Baran Haldar reported in 1986 PLJR 734 relying upon a
decision of the Apex Court in case of Hasmat Rai and another vs
Raghunath Prasad reported in AIR 1981 SC 1711. Recently also a
bench of this court in case of Sachendra Kumar Singh vs. Vinod
Nandan Sinha reported in 2007 (2) PLJR 488 while considering a
similar matter held that from the start to the ultimate termini a lis takes
several years and during this long interval many events are bound to
take place in relation to parties as well as subject matter of the lis and
if such subsequent events on account of the malady of the system is
submerged with the cause of action, it shall shatter the confidence of
the litigant in the judicial system and hence subsequent event had to be
taken into account by the court hearing such matter. This view had
been succinctly put forth by the Supreme Court in the case of
Shakuntala Bai vs Narayan Das reported in AIR 2004 SC 3484.
24. In the said circumstances, the court below was quite
justified in considering the aforesaid subsequent event which was fully
proved by the plaintiff not only by his oral evidence but also by his
documentary evidence including certified copies of order and award of
Lok Adalat (exhibits 12 and 13) dated 13.02.2007 passed in Lok Adalat
Case No. 307 of 2006. The said order and award are legal and binding
on all parties concerned and the defendant had failed to prove that it
was not bonafide as has been discussed earlier. The said award of
partition is subsequent event as it was passed during the pendency of
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the suit and the plaintiff got his plaint amended by way of adding a
separate paragraph giving detail of the said award. The said amendment
having been allowed by the trial court and having not been challenged
by the defendant it has attained finality and hence the defendant can not
legally raise any such objection with respect thereto at this stage.
25. From perusal of the said order and award of Lok Adalat
(exhibits 12 and 13), it is quite apparent that all properties of the family
mentioned above were subject matter of the said case and order has
been passed and award has been prepared on the basis of compromise
with respect to all the aforesaid properties giving specific portion
thereof to each of the member of the joint family, out of whom the
plaintiff was allotted only the suit flat and no other premises. Hence the
claim of the defendant that the plaintiff had so many premises can not
be upheld as the plaintiff had no property left except the suit premises.
The plaintiff can not legally have any claim over the property allotted
to his children by the court nor he wants to live with his wife in the flat
allotted to her in the first floor in Schedule I as they have been living
separately. Since the plaintiff has retired from his service and has now
only one flat namely the suit premises, it is quite apparent that his
requirement is bonafide and reasonable and can not be termed as a
mere desire as he has been able to prove his personal necessity and
need for the suit premises. Thus on the said basis defendant is liable to
be evicted from the suit premises.
26. So far question of partial eviction is concerned, the court
below has framed specific issue no. (vii) with respect thereto and has
decided the same in paragraph 17of the impugned order considering the
available space, the plaintiff‟s requirement and also the possibility of
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partial eviction from flat containing only one toilet, one bathroom and
one kitchen etc and rightly came to the specific finding that order of
partial eviction can not be justifiably passed in the instant case. This
court finds the said reasonings to be correct and justified.
27. In the said circumstances, this court does not find any
illegality or jurisdictional error in the impugned order of the court
below and accordingly, this civil revision (C.R. No. 317 of 2009) is
hereby dismissed and the judgment and order of eviction dated
12.01.2009 passed by Munsif III, Patna in Eviction Suit No. 48 of 2005
is affirmed. However, in the facts of this case there would be no order
as to cost.
28. MJC No. 880 of 2010 has been filed on behalf of the
defendant-petitioner for initiating a proceeding of contempt against the
plaintiff-opposite party as well as against Execution Munsif III, Patna
before whom the impugned decree was pending for execution. It is
claimed by the petitioner that for execution of the impugned order of
eviction the plaintiff had filed Execution Case No. 2 of 2009 which was
pending before Execution Munsif III, Patna but this court vide order
dated 06.07.2009 passed in C.R. No. 317 of 2009 stayed further
proceeding of the said execution case, whereafter in spite of the said
order the defendant-petitioner was dispossessed from the suit premises
on 09.02.2010 on the order of Execution Munsif III, Patna in the
aforesaid execution case.
29. Similarly, I.A. No.2042 of 2010 has been filed by the
petitioner under the provision of sections 144 and 151 of the Code of
Civil Procedure for restitution of possession as he was dispossessed by
the executing court during the pendency of the civil revision although
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execution proceeding was stayed by this court vide order dated
06.07.2009 passed in Civil Revision No. 317of 2009.
30. Although notices were sent to both the opposite parties of
the MJC case but only opposite party no.1,namely the plaintiff,
appeared and filed his rejoinder to the MJC case as well as to the
interlocutory application tendering unqualified apologies, but claiming
that neither any order has been violated nor any of the opposite parties
disobeyed any order of this court as vide order dated 06.07.2009 stay
was granted only till 31.07.2009 and it was never prayed to be extended
after 31.07.2009 by the petitioner although the case was placed before
the court on several occasions and hence much thereafter on
09.02.2010 delivery of possession was effected in the execution case.
31. Considering the averments made by learned counsel for
the parties as well as the materials on record, it is quite apparent that
vide order dated 06.07.2009, Civil Revision No. 317of 2009 was
admitted wherein it was observed as follows:
“Considering the urgency of the matter let this
civil revision be placed for hearing within top ten
cases on 31st of July, 2009. Till then let further
proceeding of Execution Case No.02 of 2009 pending
before the learned Execution Munsif III, Patna shall
remain stayed.”
32. In view of the specific wording of the said order, it is
quite apparent that the civil revision was directed to be placed for
hearing on 31st July, 2009 and till then further proceeding of the
execution case was directed to remain stayed. The words” till then”
were clearly used in relation to the words “31st July 2009” which were
used just before it and hence the order of stay was effective only till
that date and not thereafter. It further transpires that thereafter the civil
revision was heard on several dates i.e. 19.08.2009, 06.01.2010 and
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13.01.2010 but no prayer was made on behalf of the defendant-
petitioner to extend the order of stay any further after 31.07.2009 and
hence delivery of possession was admittedly effected more than six
months thereafter on 09.02.2010.
33. In the said circumstances, it is quite apparent that there
was no fault either of the plaintiff-opposite party-decree holder or of
the executing court nor there was any violation or disobedience of any
order of this court and delivery of possession was effected as per the
due process of law. Accordingly MJC No. 880 of 2010 as well as I.A.
No. 2042 of 2010 both are hereby dismissed as this court does not find
any occasion either for punishing the opposite parties for contempt or
for restitution of possession in favour of the petitioner.
(S.N.Hussain, J)
Patna High Court
Dated 9th April, 2010
NAFR/ Shahid