Sri Mishri Lal Yadav vs Budhdeo Yadav

B.K. Roy, J.—The Petitioner filed a suit for eviction of the opposite party which was decreed ex-parte on 30.9.1986. The opposite party filed an application under Order IX, Rule 43 of the CPC (hereinafter to be referred to as the Code) for setting aside the aforementioned ex-parte decree. His application was registered as Misc Case No. 34 of 1987. The Petitioner, who was impleaded as opposite party in the aforementioned case, filed an application u/s 15 of the Bihar Buildings (Lease, Rent and Eviction) Control (hereinafter to be referred to as the Act, 1982 Act). By the impugned order the aforementioned application has been rejected holding that no order u/s 15 of the Act can be passed in a Miscellaneous case under Order IX, Rule 13 of the Code. The Petitioner is aggrieved by the aforementioned order.

Mr. Rudra Deo Kumar Sinha, learned Counsel appearing for the Petitioner contends that the word ''suit'' in Section 15 of the Act has already been interpreted in Radha Kishan Sao Vs. Gopal Modi and Others, to include appeal'' and thus it should also be interpreted to include within its ambit a case under Order IX, Rule 13 of the Code, also.

Mr. Ray Shivaji Nath, learned Counsel appearing for the Opposite party, on the other hand contends that the word suit in Section 15 of the Act, should not be so interpreted. He also submits that the parties have already adduced their entire evidence in the aforementioned Miscellaneous Case and only arguments are to be made by them and thus no interference should be made by this court.

Section 15 of the Act runs as follow:

15 Deposit of rent by tenants in suits for ejectment - (1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order to the tenant to deposit rent month by month at a rate at which is; was last paid and also subject to the law of limitation the arrears of rent, if any and the court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent both of before and after the institution of the suit, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month the court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the court shall not allow the tenant to cross-examine the landlords witnesses.

(2) If in any proceeding referred to in Sub-section (1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in court the amount payable by him under Sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the court decides the dispute and makes an order for payment of the same.

(3) If the court is satisfied that any dispute referred to in Sub-section (2) has been raised by a tenant for reasons which are false or frivolous the court may order the defence against eviction to be struck off and proceed with the hearing of the suit as laid down in Sub-section (1).

From a bare perusal of the aforementioned section it is clear that the aforementioned provision is for the advantage of a landlord to got the arrears of rent as also the current rent deposited by the tenant who wishes to contest the suit Sub-section (2) confers a jurisdiction in the court to pass an order directing the parties not to withdraw the rent deposited in Court (sic) the dispute is finally decided. Sub-section (3) lays down that if the dispute raked under Sub-section (2) is false or frivolous the court may struck off the defence of the tenant and proceed with the hearing of the suit as contemplated in Sub-section (1). In my view, for arriving at the correct conclusion of the meaning of the word "suit" Sub-sections 1, 2 and 3 of Section 15 all have to be read together. A proceeding under Order IX, Rule 13 of the Code is an independent proceeding. It is a settled law that even an ex parte decree operates as res-judicial vide Ramcharitar Sah Vs. Bifai Mahto and Others, . The Act is a complete code in itself. The Legislature u/s 15 contemplates only a preliminary enquiry in regard to the relationship of landlord and tenant between the parties. In the ex parte decree the relationship between the parties has already been accepted by the Court. In my view, the Legislature never intended to have another preliminary enquiry under Order IX, Rule 13 of the Code after the decision of the suit though ex parte. The mere preference of an application under Order IX, Rule 13 of the Code cannot put the ex parte decision in abeyance and the ex parte decision and the decree shall be operative and effective against such an applicant.

In Paresh Chandra v. Krishna Chandra Ghosh AIR 1984 NOC 247 (Calcutta), a learned single Judge of the Calcutta High Court took a view to the effect that the proceeding under Order IX, Rule 13 is a proceeding independent of the suit.

A Division Bench of the same High Court in S.C. Bhoumick v. P. Gupta 87 CWN 719, while dealing with the Order IX. Rule 13 and West Bengal Premises Tenancy Act had already held as follows:

It has been submitted by Mr. Sati Nath Mukherjee learned Advocate appearing for the Petitioner in our view rightly, that proceeding arising out of an application under Order IX Rule 13 of the Code is a proceeding independent of the suit.

(emphasis added)

The Legislature had also. added a second provision to Order IX, Rule 13 of the Code according to which an exparte decree cannot be set aside merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the Defendant applicant had notice of the dates of hearing and had sufficient time to appear and answer the claim of his adversary.

I am thus of the view that the word "suit" u/s 15 includes within its ambit any Appear and revision and not a proceeding under Order IX, Rule 13 of the Code.

In fairness to Mr. Sinha, I must take note of the division bench decision of our court in Parwati Devi v. Sachchidanand Sah ILR LXI Patna 953. That case is clearly distinguishable the as question of applicability of Section 13 of the 1977 Act, which was akin to Section 15 of the present Act vis-a-vis Order IX, Rule 13 was not at all considered. It was merely laid down in that case that the court is not powerless to grant an interim relief to the landlord during the pendency of the suit u/s 13 of the 1977 Act.

For the reasons aforementioned, I do not find any merit in this application and accordingly, this application is dismissed but in the peculiar facts and circumstances there shall be no order as to cost.

Before I part, in view of the fact that the parties had already adduced evidence, I direct the court below to dispose of the petition under Order IX, Rule 13 of the Code expeditiously preferably within two months of the receipt of this order.