Bishun Prasad Gupta vs Jagmohan Swaroop

Shambhu Prasad Singh, J.—This second appeal by the defendant arises out of a suit for eviction under the Bihar Buildings (Lease Rent and Eviction) Control Act (hereinafter referred to as "the Act").

It is not necessary to state the facts of the case in detail for the decision of this appeal. On the 4th August, 1960, the trial court passed an order for deposit of rent u/s 11-A of the Act. The defendant defaulted in making the deposit, and, by an order, dated the 4th September, 1961, his defence was struck off. Thereafter, the plaintiff examined a witness in support of his case, and an ex parte decree was passed in his favour. Thereupon, an appeal preferred by the defendant in the Court of appeal below was also dismissed. Hence, this second appeal to this Court by the defendant. It came up for hearing before a learned Single Judge, who was pleased to refer it to a Division Bench.

It is contended by Mr. J.C. Sinha, appearing for the appellant, that, on the allegations made in the plaint and the evidence adduced at the ex parte hearing, the plaintiff has failed to prove that the tenancy was determined, as required u/s 106 of the Transfer of Property Act, and, therefore, the ex parte decree passed in his favour has to be set aside. In support of this contention, he relies on the Full Bench decision of this Court in Niranjan Pal v. Chaitanyalal Ghosh 1964 BLJR 583 where it was held that the lease must be determined before the landlord could maintain an action for eviction of the tenant u/s 11 of the Act; and it was for the plaintiff to mention in the plaint the fact of determination of the lease as one of the facts constituting the cause of action, which he was required to give under Rule 1 of Order VII of the Code of Civil Procedure. It was further observed that it was for the plaintiff to prove that fact; and the defendant could take the point about the non-maintainability of the suit for eviction on this ground for the first time even in second appeal.

Learned Counsel for the plaintiff-respondent, on the other hand, has urged that, in view of the fact that the defence of the appellant was struck off, it is not open to him to argue that the suit was not maintainable for want of notice u/s 106 of the Transfer of Property Act even if there was no averment regarding the determination of the lease in the plaint. In support of this contention, he relied on a Single Judge decision of the Calcutta High Court in Idannessa Bibi Vs. Syed Abdul Wadud, . In that case it was observed that the defence of the tenant having been struck out by the trial court, the appeal had become incompetent and the lower appellate court acted erroneously in law in referring to the plaint at the instance of the tenant for the purpose of holding that the tenant was not a defaulter. In spite of this observation, it appears that the decision does not support the contention of the learned Counsel for the plaintiff-respondent in the instant case. With reference to another Single Judge decision of that Court, where it was held that a tenant was not even entitled to challenge the validity of the notice of ejectment, after his defence was struck off, as the notice is connected with the question of ejectment, the learned Judge observed:

One may not agree with the view that in such a case the tenant is not even entitled to question the service or validity of the notice, because the notice is served u/s 106 of the Transfer of Property Act and has no direct bearing on the question of eviction.

In a recent Full Bench of this Court in Mahabir Ram v. Shiva Shankar Prasad 1968 PLJR 75 it has been held that, after the defence is struck off, the tenant cannot set up a defence even with regard to notice u/s 106 of the Transfer of Property Act. Therefore, this Full Bench decision of this Court may be of some help to the respondent, but not the decision of the Calcutta High Court in the case of Idannessa Bibi Vs. Syed Abdul Wadud, . However, since that decision has been cited before us, and this case was referred to a Division Bench to find out whether that decision was correct or not, I would express my opinion that I do not agree with and dissent from the view taken by Mukherjee, J. that, after the defence is struck off, even the plaint can not be referred to for the purposes of finding out whether the suit was maintainable or not, on the allegations in the plaint itself. That view is in conflict with the view taken by the Full Bench of this Court in Niranjan Pal''s case 1964 BLJR 583. In Matadin Agarwal v. Phulchand Jallan 1967 BLJR 201 Untwalia, J. has observed that "the Court is not to pass even an ex parte decree mechanically. The plaintiff will be entitled to such a decree if in the ex parte hearing he proves facts entitling him to get that decree, of course, without his witness being allowed to be cross examined by the defendant, whose defence as against ejectment has been struck out and without allowing the latter to adduce their own evidence on any point in regard to which the defence has been struck out." Respectfully, I agree with the above observations of Untwalia, J.

It was also urged by learned Counsel for the plaintiff-respondent that in the plaint his client did plead service of notice and that fact was admitted by the appellant in paragraph 10 of his written statement. We have examined the plaint, and there is no allegation in it that the notice was one as contemplated by Section 106 of the Transfer of Property Act, or that by the said notice the tenancy was determined. In paragraph 10 of the written statement, the defendant merely stated that he had replied to the said notice. That cannot be taken as an admission that there was determination of the tenancy and a notice was served upon the defendant, as required by Section 106 of the Transfer of Property Act. The notice referred to in the plaint has not been proved, nor has the only witness examined on behalf of the plaintiff stated that it was a notice for determining the lease of the defendant. In the circumstances, the plaintiff-respondent, by his pleadings or evidence, has failed to aver or prove that the tenancy had been determined; and, in absence of such allegation and proof, his suit has to be dismissed.

In the result, the appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit of the plaintiff is dismissed, but without costs, in the circumstances of the case.

R.K. Choudhary, J.

I agree.