Rita Lal vs Raj Kumar Singh

Leave granted.

The appellant, a widow and having undergone akidney transplant, initiated an eviction petition underSection 14 of the Bihar Buildings (Lease Rend and Eviction) Control Act, 1982 (hereinafter "the Act", forshort). According to the appellant, the respondent anemployee of the appellant, was inducted into possession ofthe premises under an agreement of lease dated 10thFebruary, 1997. The grounds on which eviction is soughtfor are more than one and include the genuine requirementof the premises for landlord's self occupation and therespondent being a defaulter in payment of rent.

The respondent-tenant sought for leave to defendunder Sub-section (4) of Section 14 of the Act denying thelandlord-tenant relationship and submitting that the suitproperty was owned by one R.N. Chakraborty, whose titleon his death had devolved upon his son, Dr. RajatChakraborty and from the latter the respondent hadpurchased the property under registered deed of sale dated24th February, 1998. It was submitted that as there wasno landlord-tenant relationship between the parties, therespondent was not liable to pay rent and certainly notliable to be evicted. In the submission of therespondent, the pleadings raised a triable issue and,therefore, leave to defend ought to have been granted.

The learned Trial Court having taken intoconsideration the pleadings of the parties, the contentsof the affidavits and the supporting documents formed anopinion that the pleas raised by the respondent-tenantwere false and frivolous and wholly unsustainable in lawand hence no prima facie case was made out worthconsideration for granting leave to defend. Leave todefend was, therefore, refused. Feeling aggrieved by theorder of the Trial Court, the tenant preferred a revisionin the High Court which revision has been allowed by thelearned Single Judge forming an opinion that a triableissue within the meaning of Sub-section (4) and (5) ofSection 14 of the Act did arise on the pleadings of theparties and, therefore, the leave to defend deserves to begranted to the respondent-tenant.

The pleadings, affidavits and the documentsavailable on record go to show that the respondent was anemployee under the appellant. On 10th day of February,1997, an agreement to lease was executed between theparties. Though the execution thereof is disputed butwhat is not disputed are the signatures of therespondent-tenant on each of the pages of the agreement onwhich the agreement is inscribed. In the year 1993, atitle suit was filed by this very appellant against RajatChakraborty and therein this very respondent had appearedas a witness for the plaintiff. He was examined on oathon 29th June, 1994 in the Court of Munsif, Hazaribag. Inhis deposition he has traced the source of title of theplaintiff therein (i.e the appellant herein) narratingthe chain of sale deeds by successive owners of theproperty including the last one of the year 1998 wherebythe property was purchased by the appellant herein fromone Sanjay Kumar Sinha, the then owner of the property.The land having been purchased, the respondent went on todepose, the appellant constructed two houses on the landsurrounded by the boundary wall. The respondent veryclearly stated that the defendant (that is RajatChakraborty) had no title or interest in the property andthe suit had to be filed by the plaintiff (i.e. theappellant herein) because Rajat Chakraborty and otherdefendants were trying to take forcible possession of theproperty.

There is a very clear admission made by therespondent on the title of the appellant in his depositionmade on oath unjudicial proceedings. Not a word he hasstated in the pleadings showing how and under whatcircumstances the statement came to be made and how doesthe respondent wriggle out of a clear admission madein his deposition? So also the respondent does notfurnish any explanation worth being considered, much lessaccepted, as to how his signatures appear at more than oneplaces, that is, on every page of the rent note dated 10thFebruary, 1997 he cannot escape the consequences flowingfrom execution of rent note. The tenant having beeninducted by the landlord so long as he remains inpossession cannot deny the title of his landlord in viewof the rule of estoppel contained in Section 116 of theEvidence Act.

Recently in Vashu Deo Vs. Bal Kishan, , we had an occasion to sum up the law asto estoppel of tenant and as to eviction by titleparamount and we held:

"The rule of estoppel betweenlandlord and tenant enacted in Section116 of the Evidence Act has three mainfeatures: (i) the tenant is estoppedfrom disputing the title of hislandlord over the tenancy premises atthe beginning of the tenancy; (ii)such estoppel continues to operate solong as the tenancy continues andunless the tenant has surrenderedpossession to the landlord; and (iii)Section 116 of the Evidence Act is notthe whole law of estoppel between thelandlord and tenant. The principlesemerging from Section 116 can beextended in their application and alsosuitably adapted to suit therequirement of an individual case."

"...the rule of estoppel ceasesto have applicability once the tenanthas been evicted. His obligation torestore possession to his landlord isfulfilled either by actuallyfulfilling the obligation or byproving his landlord's title havingbeen extinguished by a paramounttitle-holder."

The trial court rightly formed the opinion that no triableissue was raised.

The learned counsel for the respondent has placedreliance on the law laid down by this Court in the case of Charan Dass Duggal v. Brahma Nand, (1983) 1 SCC 301 andtwo decisions of Patna High Court in Md. Fahimuddin v.Godhan Pd. Singh, 1992 (2) PLJR 352 and Bijoy Kumar Singhv. The State of Bihar and Ors., 1992 (1) PLJR 123. Therecan be no quarrel with the proposition laid down in thesedecided cases relied on by the learned counsel for therespondent. The law is settled that if the tenant hasmade cut a prima facie case raising such pleas that atriable issue would emerge then that would be sufficientto grant leave. The case law cited at the Bar itself goesto show that even at that stage the Trial Court is notprecluded from forming an opinion whether on the materialavailable on record, a triable issue, that is, issue worthbeing tried arises or not. Raising a triable issue, asSub-section (5) of Section 14 suggests is disclosing bytenant in his affidavit such facts as would disentitle thelandlord from obtaining an order of eviction. If theCourt is satisfied that though in the pleadings an issueis raised but that is not a triable issue than the Courtis justified in refusing the leave to defend. A defence,which is practically moonshine, sham or illusory cannot beheld to be raising a triable issue. Else the wholepurpose behind enacting a provision for granting leave todefend, and not permitting a contest unless leave wasgranted, would stand defeated.

In the facts and circumstances of the case, noticedhereinabove, it is clear that the defendant is raising aplea which he is estopped from raising and, therefore, theplea raised by him in his affidavit seeking leave todefend does not amount to raising a triable issue. In ouropinion, the High Court, in exercise of revisionaljurisdiction, ought not to have interfered with the wellconsidered and reasoned order of the Trial Court.

For the foregoing reasons, the appeal is allowed.The impugned order of the High Court is set aside and thatof the Trial Court restored. The respondent shall pay thecosts incurred by the appellant.