Barun Konar vs Sameena Jahan And Ors

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for quashing order dated 06.05.2019 (Annexure-7 to the writ petition) passed by the Civil Judge (Junior Division), Dhanbad in Title (Eviction) Suit No. 34/2009, whereby the application filed by the respondents on 28.02.2019 under Order XXII Rule 2 and 3 read with Section 151 CPC has been allowed without considering the fact that the original plaintiff-Mashood Alam - the landlord of the premises (since deceased) had filed the aforesaid eviction suit on the ground of his personal necessity of the suit premises which had in fact extinguished after his death as the ground of personal necessity of the landlord no more survived.

Heard the learned counsel for the parties and perused the content of the writ petition including the impugned order dated 06.05.2019 passed by the learned court below.

The main contention of the learned counsel for the petitioner is that the application under Order XXII Rule 2 and 3 CPC was filed belatedly by the respondents [the heirs of the original plaintiff of Title (Eviction) Suit No. 34/2009] and, therefore, the delay caused in filing of the said application should not have been condoned by the learned court below. Further argument of the learned counsel for the petitioner is that since the Title (Eviction) Suit was filed by Late Mashood Alam under the provisions of Section 11(1)(c) read with Section 14 of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2011 on the ground of his personal necessity of the suit premises, the said ground no more existed after his death and, therefore, instead of allowing the said application of the respondents, the court below should have disposed of the suit as abated in view of the provisions of Order XXII Rule 3(2) CPC.

I do not find force in the said submission of the learned counsel for the petitioner. The learned court below while passing the impugned order dated 06.05.2019 dealing with the issue of delay in filing of the application under Order XXII Rule 2 and 3 CPC by the respondents, has appreciated the fact that the conducting lawyer of the deceased (the original plaintiff) had also died due to which the respondents (the heirs of the original plaintiff) could not know about the pendency of the case in time. So far as the issue with regard to the abatement of the suit after the death of the original plaintiff is concerned, I am of the view that if the original suit was filed by the plaintiff on the ground of personal necessity of the suit premises, the said ground did not extinguish after his death as his heirs (the respondents herein) had stepped into the shoes of the original plaintiff. It is not the case of the petitioner that any material was brought on record before the learned court below substantiating the contention that the suit premises was not at all required by the heirs of original plaintiff for their personal necessity.

Hence, I see no infirmity in the order dated 06.05.2019 passed by the Civil Judge (Junior Division), Dhanbad in Title (Eviction) Suit No. 34/2009.

The writ petition being devoid of merit is accordingly dismissed.