[ad_1]
Patna High Court
Babli Devi vs Suresh Ram on 6 May, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.54 of 2021
======================================================
Babli Devi, wife of Praveen Kumar, Resident of Mohalla- Durga Asthan,
Police Station- Hilsa, District- Nalanda
... ... Petitioner/s
Versus
1. Suresh Ram, Son of Late Birje Ram,
2. Amit Kumar, Son of Suresh Ram,
3. Pratik Kumar, Son of Suresh Ram,
All are residents of Mohalla- Durga Asthan, Police Station- Hilsa, District-
Nalanda
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. J.S. Arora, Senior Advocate
Mr. Rakesh Kumar, Advocate
Mr.Manoj Kumar, Advocate
For the Respondent/s : Mr. Shashi Shekhar Dvivedi, Senior Advocate
Mr.Rewti Kant Raman, Advocate
Mr. Parth Gaurav, Advocate
Mr. Govind Rah Shahi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 06-05-2025
The present petition has been filed by the petitioner
under Article 227 of the Constitution of India seeking following
reliefs :
"(i) For quashing the Judgment/Decree
dated 05.06.2020, passed in Eviction Appeal No. 2 of
2019 by the Court of Learned Additional District
Judge-1, Hilsa, whereby the said appeal preferred
against the Judgment/Decree dated 10.05.2019,
passed in Eviction Suit No. 6 of 2013 by the Court of
Learned Additional Munsif, Hilsa (Nalanda) has been
allowed and by setting aside the said judgment and
decree the suit in question has been dismissed, though
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
2/23
under Section 18 (8) of the Bihar Buildings (Lease,
Rent and Eviction) Control act, 1982 the Appellate
Court lacked jurisdiction to hear the said appeal and
the only remedy for respondent was to prefer revision
application before this Court.
(ii) Also for any other appropriate relief (s)
to which the petitioner is found to be entitled either in
the eye of law or on the facts and circumstances of the
case".
2. Briefly stated the facts of the case, as it appears from
the record. are that one Satya Prakash Arya owned and
possessed a piece of land with a house constructed thereon
appertaining to Plot Nos. 1960 and 1961 in Tauzi No. 12233 and
Khata No. 426 in Thana No. 177, having an area of 1.1055
decimals situated at Durga Asthan, Hilsa within the district of
Nalanda. At the ground floor of the said house, there is a shop of
9 feet x 9 feet in which the respondent was inducted as a tenant
under joint tenancy. The plaintiff/petitioner purchased the said
property from the erstwhile owner through a registered deed of
sale dated 21.12.2010. The plaintiff/petitioner claimed that
respondents, just prior to the purchase of the property, vacated
the suit premises. But taking undue advantage of absence of the
petitioner, the respondents again entered into the suit premises.
On the other hand, the respondents claimed that they never
vacated the said premises and they continued in it as tenant.
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
3/23
The petitioner filed Land Dispute Case No. 10 of 2011-
12 and vide order dated 27.07.2011, an order of removal of
respondents was passed. The respondents preferred Land
Dispute Appeal No. 103 of 2011 before the learned
Commissioner against the said order dated 27.07.2011, which
was dismissed. Thereafter, the respondents preferred CWJC No.
4351 of 2012 against the order of learned Commissioner. The
said writ petition was allowed and the matter was remitted back
to the learned Commissioner. The said order of the writ Court
was confirmed vide order dated 29.07.2013 passed in LPA No.
401 of 2012. The learned Commissioner finally heard the matter
and allowed it in favour of the respondents vide order dated
06.08.2013
with some observation. In these facts and
circumstances, the petitioner filed two eviction suits, vide
Eviction Suit No. 6/2013 for eviction of the respondents from
the suit premises on the ground of personal necessity under
Section 11 (1) (c) of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1982 (hereinafter referred to as the Act)
and Eviction Suit No. 7/2013 for a decree of eviction on the
ground of default.
It further transpires that the learned trial court stayed
the further proceedings of Eviction Suit No. 7/2013 by applying
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
4/23
the provisions of Section 10 of the Code of Civil Procedure
(hereinafter referred to as the Code) and continued with
Eviction Suit No. 6/2013 which was on the ground of personal
necessity.
Thereafter, it appears that the plaintiff/petitioner
sought for amendment in the plaint of Eviction Suit No. 6/2013
which was allowed and Relief No. A (1) was added that the
defendant be directed to pay the due rent till eviction of the suit
property and interest and Schedule 2 was added comprising in
its contents the details of due rent to be paid by the defendant to
the plaintiff, i.e., rent due since January 2011 till eviction of the
suit land with interest at the rate of Rs. 450/-per month. Eviction
Suit No.6/2013 was decreed and the respondents were directed
to vacate the suit premises within sixty days from the date of
order. However, respondents filed an appeal before the court of
learned Additional District Judge-1, Hilsa, Nalanda vide
Eviction Appeal No. 2 of 2019 and the said appeal was allowed
vide judgment dated 05.06.2020 by setting aside the judgment
dated 10.05.2019 and decree dated 17.05.2019 passed in
Eviction Suit No. 6/2013. The instant civil miscellaneous
petition has been filed against the judgment and decree of the
Eviction Appeal No. 2/2019 on the ground that the learned
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
5/23
appellate court lacks jurisdiction to hear the said appeal and
remedy for the respondents was to prefer revision before this
Court.
3. Mr. J.S. Arora, learned senior counsel appearing on
behalf of the petitioner submitted that since the decree in
Eviction Suit No. 6/2013 has been passed under Section 11 (1)
(c) of the Act, the only recourse available to the respondents was
to challenge the said judgment and decree of eviction passed by
the learned trial court before this Court by filing a revision
petition under Section 14 (8) of the Act. Thus, learned first
appellate court proceeded with the hearing of the appeal in an
illegal manner and it was suffering from inherent lack of
jurisdiction and it illegally assumed jurisdiction which was
never vested with it in view of bar created by the provision of
Section 14 (8) of the Act. Therefore, the judgment and decree of
the Eviction Appeal No. 2/2019 is out-rightly illegal, null and
void.
4. Mr. Arora further submitted that even after
amendment, the eviction suit remained a suit for eviction on the
ground of personal necessity as only amendment was made
seeking arrears of rent and no ground of default was taken.
Therefore, learned appellate court ought to have examined the
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
6/23
issue when the petitioner made objection regarding
maintainability of the appeal in question and for non-
consideration of this material aspect, the impugned judgment
and decree is perverse.
5. Mr. Arora further submitted that even one of the
issues framed by the learned trial court with regard to default of
payment of rent was without jurisdiction as no such averment
was made in the Eviction Suit No. 6/2013 and no such relief of
eviction on the ground of default of rent was sought by the
plaintiff/petitioner.
6. Mr. Arora further submitted that the Section 14
of the Act provides that if the suit is only on the ground of
personal necessity [Section 11 (1) (c)] or expiry of lease
[Section 11 (1) (e)], then no appeal would lie as provided under
Section 14 (8) of the Act, but it nowhere speaks that relief with
regard to arrears of rent could not be claimed. The suit before
the learned trial court was only on the ground of personal
necessity and no other ground was pleaded, hence, Section 14
(8) of the Act is very much applicable. The provision of Section
15 of the Act and remedy thereunder would also apply to all
suits filed on all grounds including the ground of personal
necessity.
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
7/23
7. Mr. Arora further submitted that even on merits, the
impugned judgment and decree are not sustainable. The learned
appellate court did not decide all points formulated for
determination in the form of issues and referred to a number of
decisions of Hon’ble Supreme Court in this regard.
8. Mr. Arora referred to the decision of Hon’ble
Supreme Court in the case of Madina Begum and another vs.
Shiv Murti Prasad Pandey, reported in AIR 2016 SC 3554,
wherein the Hon’ble Supreme Court held that the order of High
Court only considering the issue of limitation and not
considering other issues in appeal was not permissible. The
Hon’ble Supreme Court further held that as they do not agree
with the view taken by the High Court on the issue of limitation,
there was no option but to set aside the view expressed by the
High Court and remanded the matter to the High Court to decide
the remaining issues in the first appeal filed under Section 96 of
the Code of Civil Procedure.
9. Mr. Arora further referred to the decision of the
Hon’ble Supreme Court in the case of H.K.N. Swami vs. Irshad
Basith (dead) by LRs. reported in (2005) 10 SCC 243 wherein
the Hon’ble Supreme Court held that the first appeal has to be
decided on facts as well as on law. In the first appeal, parties
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
8/23
have the right to be heard both on questions of law as also on
facts and the first appellate court is required to address itself to
all issues and decide the case by giving reasons. Finding the
order of the High Court cryptic and without reasons, appeal was
allowed and judgment of the High Court was set aside and
matter was remitted back to the High Court to decide it afresh.
10. Mr. Arora further referred to the decision of the
Hon’ble Supreme Court in the case of B.V. Nagesh and another
vs. H.V. Sreenivasa Murthy, reported in (2010) 13 SCC 530
wherein the Hon’ble Supreme Court held that the judgment of
the appellate court must reflect its conscious application of mind
and record findings supported by reasons, on all the issues
arising along with the contentions put forth, and pressed by the
parties for decision of the appellate court. The Hon’ble Supreme
Court further held that the first appeal is a valuable right and the
parties have a right to be heard both on questions of law and on
facts and the judgment in the first appeal must address itself to
all the issues of law and fact and decide it by giving reasons in
support of the findings.
11. Thus, Mr. Arora submitted that the learned first
appellate court, merely saying that after the decision of Issue
No. 1 that there is no relationship of landlord and tenant
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
9/23
between the plaintiff and the defendants, without assigning any
reasons, decided all other issues against the plaintiffs, which is
completely perverse order.
12. Mr. Arora further submitted that the learned first
appellate court completely erred on the point while deciding that
there was no relationship of landlord and tenant between the
plaintiff and defendants as it failed to appreciate that there had
been admission on the part of the respondent in his deposition
that Satya Prakash Arya was earlier owner of the property and
he transferred the same by registered deed of sale and the
respondent continued as tenant under the said tenancy
uninterruptedly. This fact is also supported by the finding of the
learned Commissioner of Patna Division in Land Dispute
Redressal Appeal No. 103/2011 vide order dated
23.07.2013/06.08.2013 wherein the learned Commissioner
reached the finding that the appellants/respondents herein were
tenants in the disputed property and it was not proved that they
forcibly entered into the suit property and thus, the learned
Commissioner held that it was not a case of land dispute rather
it is dispute between the landlord and tenant.
13. Mr. Arora further submitted that even on merits if
the relationship of landlord and tenant was not admitted by the
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
10/23
respondents herein, then by fiction of law, the said relationship
exits between the parties. It is well settled law that if admitted
landlord has lawfully transferred the property, then the
purchaser shall automatically become landlord of the tenant in
the suit property and no attornment of the tenant would be
needed. On this aspect of the matter, Mr. Arora referred to a
number of decisions of this Court. The Hon’ble Division Bench
of this Court in the case of Ram Tahal Modi vs. Ratan Lal
reported in 1988 PLJR 950 held that in terms of Section 109 of
the T.P Act, the transferees-plaintiffs came to possess all the
rights of the transferors-lessors with regard to the suit
properties. Another case, which has been referred by Mr. Arora,
is the case of Dinesh Kumar Purbey vs. Mahesh Kumar
Poddar, reported in 1991 (1) PLJR 650 wherein considering the
question whether upon transfer of interest, attornment by the
tenant is necessary or sine qua non in order to constitute a
landlord-tenant relationship between the parties, learned Single
Judge referred to the Division Bench judgment of the Calcutta
High Court in the case of Sri Manindra Chandra Dey &
Brothers vs. Smt. Gita Sen & Others (73 Calcutta Weekly
Notes 856) wherein criticizing the contention that the tenant
does not become the tenant of the transferee so long as he does
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
11/23
not attorn to the transferee as his new landlord by paying rent to
such a one amicably, or so long as he is not forced to pay rent to
such a one by a decree of the court and held that such
extravagant proposition was not warranted as it would throw the
transferee landlord at the mercy of a sitting tenant and it writes
off the positive and plain enactment in Section 109 of the
Transfer of Property Act, 1882. The learned Single Judge quoted
the observation made by the Hon’ble Division Bench of
Calcutta High Court wherein it has been held “the relationship
of landlord and tenant is there between the lessee and the
lessor’s assignee. And still the necessity of a fresh attornment,
which means acknowledgment by the lessee of the lessor’s
assignee as his landlord. It looks like acknowledging then the
fact that sun rises on the east”. Reference has also been made to
AIR 1939 Lahore 49 wherein it was held “A fresh attornment
by the lessee to the lessor’s assignee is not necessary under the
Transfer of Property Act“. Thus, learned single Judge came to
the conclusion that attornment is not a necessary condition to
create landlord tenant relationship between the parties. It has no
bearing whatsoever in cases of eviction on the ground of
personal necessity. The transfer takes place with all incidents of
right, title and interest of the lessor and the transferee is entitled
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
12/23
to sue the existing tenant on the ground of personal necessity
even if the tenant has not attorned to his tenancy under him.
Further reference has been made on the decision of the Division
Bench of this Court in the case of Smt. Kalawati Tripathi and
others vs. Smt. Damayanti Devi and another reported in AIR
1993 Patna 1 wherein the Hon’ble Division Bench of this Court
held that the attornment by lessee to the assignee of lessor is
not necessary for creating a subsisting tenancy, by referring to
the decisions of Dault Ram (supra) and Dinesh Kumar Purbey
(supra).
14. Mr. Arora further submitted that the respondents
claiming possession on the basis of filing a suit for Specific
Performance of Contract Act to enforce an agreement to sale
cannot be sustained as such plea is a mere ruse to deny the claim
of eviction of the plaintiff. Admittedly, the respondents were
tenants of the vendor of the plaintiff and after transfer of the suit
property by the erstwhile owner in favour of the plaintiff,
respondents cannot forestall the claim of the eviction on the
ground that they have filed a suit for specific performance of
contract. Mr. Arora, thereafter, referred to the decision of
Hon’ble Division Bench of this Court in the case of Dr. N.P
Tripathi vs. Smt. Dayamanti Devi and another, reported in
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
13/23
1987 PLJR 724 wherein the Hon’ble Division Bench held that
the petitioners making claim in an eviction suit for their
possession on the basis of filing of suit for specific performance
of contract and saying that after execution of the alleged deed
for sale, he continued to remain in possession not qua tenant but
de hors the tenancy for his own right as a transferee is not
permissible under the law.
15. Mr. Arora further referred to the decision of Full
Bench of this Court in the case of Priyavarte Mehta vs.
Amrendu Banerjee, reported in 1996 (1) PLJR 732 on the point
that Section 15 of the Act provides that when the tenant contests
the eviction suit filed by the landlord, the landlord can then file
an application under Section 15 of the Act for issue of direction
by the court to tenant asking him to deposit arrears of rent
subject to law of limitation and Section 15 applies to eviction
suit filed on any ground for eviction contemplated under Section
11.
16. Mr. Arora further referred to another decision of the
Full Bench of this Court in the case of Md. Jainul Ansari &
Ors. v. Md. Khalil, reported in 1990 (2) PLJR 378 regarding
applicability and scope of Section 14 (8) of the Act.
17. Thus, Mr. Arora submitted that the whole
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
14/23
proceeding before the learned first appellate court was without
jurisdiction and even on merits, the judgment and decree of the
learned first appellate court could not be sustained and both
needs to be set aside.
18. Mr. S.S. Dvivedi, learned senior counsel appearing
on behalf of the respondents at the outset submitted that the
appeal was maintainable before the learned first appellate court
for the simple reason that once the plaintiff/petitioner amended
the plaint filed under Section 11 (1) (c) of the Act seeking
eviction on the ground of personal necessity, after the addition
of further relief, the suit did not remain a suit filed on the
ground of personal necessity. Therefore, it came out of purview
of Section 14 (8) of the Act.
19. Mr. Dvivedi further submitted that it is not proper
to say that the learned first appellate court proceeded in the
matter in illegal manner as the petitioner never challenged the
jurisdiction of the appellate court and only when the petitioner
lost the appeal, he has been raising this point as she has already
submitted to the jurisdiction of the court. Mr. Dvivedi further
submitted that there has been never any admission of
relationship of landlord and tenant by the respondents. The
respondent no. 1 has all along been claiming that on 21.04.2010,
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
15/23
Satya Prakash Arya executed the agreement for sale and,
thereafter, permitted the tenant to remain in the suit premises as
proposed owner and since the sale deed was not executed within
the stipulated period, Title Suit No. 73/2010 has been instituted
by the respondents and there has been no relationship of
landlord and tenant between the petitioner and the respondents.
20. Mr. Dvivedi further submitted that so far as
challenge to the learned appellate court’s judgment and decree
on the ground that all issues were not considered and disposed
of by the reasoned order, the same is immaterial for the reason
that once the learned first appellate court came to the finding
that there existed no relationship of landlord and the tenant,
there was no need to decide any issue because those issues were
with regard to personal necessity, default of rent etc.
21. Mr. Dvivedi further submitted that after bringing
amendment the nature of the suit changed and referred to first
paragraph of judgment of learned trial court and also referred to
second last page first prayer and further relief granted. Mr.
Dvivedi vehemently contended that the claim of the learned
senior counsel appearing on behalf of the petitioner regarding
additional relief being sought under Section 15 of the Act is not
sustainable as no petition was filed during the pendency of the
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
16/23
suit under Section 15 of the Act and the relief was sought in the
main suit itself. Moreover, there could be no application of
Section 15 of the Act and the nature of relief makes the suit of
the plaintiff/petitioner a money suit. Mr. Dvivedi stressed that
petition under Section 11 (1) (c) of the Act needs to be
unadulterated for application of Section 14 (8) of the Act and
mixing the relief of claim of arrears of rent took the eviction suit
out of the ambit of Section 11 (1) (c) and thus, the judgment and
decree of the learned trial court became appealable. Further,
civil miscellaneous petition against the appeal would not be
maintainable as no revision would lie under the un-amended
provision of Section 115 of the Code as revision would lie only
against those orders against which there is no appeal.
22. Mr. Dvivedi further submitted that in fact the
present proceeding under Article 227 of the Constitution of
India is not maintainable against the judgment and decree of the
learned first appellate court. Once it is found that appeal is
maintainable, only a second appeal would lie against the
judgment and decree of the learned first appellate court and all
issues raised in the civil miscellaneous petition would be subject
matter of the second appeal. Only the court hearing the second
appeal is competent to decide all issues and not this Court
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
17/23
exercising the jurisdiction under Article 227 of the Constitution
of India.
23. Thus, Mr. Dvivedi submitted that there is no error
in the proceeding which took place before the learned first
appellate court and even the judgment and decree are not
assailable before this Court in a proceeding under Article 227 of
the Constitution of India on any ground and hence, the present
civil miscellaneous petition is without any merit and the same
be dismissed.
24. By way of reply, Mr. Arora submitted that the
powers under Article 227 of the Constitution of India are
unfettered and referred to the decision of the Hon’ble Supreme
Court in the case of Shalini Shyam Shetty and another vs.
Rajendra Shankar Patil reported in (2010) 8 SCC 329 wherein
referring to the case of Surya Dev Rai vs. Ram Chander Rai
reported in (2003) 6 SCC 675, the Hon’ble Supreme Court held
that supervisory jurisdiction under Article 227 of the
Constitution is exercised for keeping the subordinate courts
within the bounds of their jurisdiction. When a subordinate
court has assumed a jurisdiction which it does not have or has
failed to exercise a jurisdiction which it does have or the
jurisdiction though available is being exercised by the court in a
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
18/23
manner not permitted by law and failure of justice or grave
injustice has occasioned thereby, the High Court may step in to
exercise its supervisory jurisdiction. Mr. Arora further referred
to the decision of the Constitution Bench of the Hon’ble
Supreme Court in the case of Waryam Singh and another vs.
Amarnath and another reported in AIR 1954 SC 215 wherein
the Hon’ble Supreme Court observed that the High Court in
exercise of its jurisdiction of superintendence can interfere in
order only to keep the courts and tribunals subordinate to it
“within the bounds of their authority”. Thus, Mr. Arora
submitted that the Court has got ample powers under Article 227
to set aside the order which has been passed without jurisdiction
by a subordinate courts.
25. I have given my anxious consideration to the rival
submission of the parties and perused the record.
26. At the outset, the objection has been raised on
behalf of the respondents that the present petition is not
maintainable as the petitioner has filed the present civil
miscellaneous petition against the order passed by the learned
Additional District Judge-I, Hilsa in Eviction Appeal No. 2/2019
and against the judgment and decree of the first appellate court,
only a second appeal could be preferred. Though it has been
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
19/23
vehemently contended on behalf of the petitioner that the
learned first appellate court has no jurisdiction to hear the matter
in appeal as the Eviction Suit No. 06/2013 has been filed on the
ground of personal necessity under Section 11 (1) (c) of the Act
and, therefore, only revision was maintainable under Section 14
(8) of the Act. I am afraid this is not the correct appreciation of
facts and law. No doubt, initially the Eviction Suit No. 06/2013
was filed on the ground of personal necessity under Section 11
(1) (c) of the Act, but once the petitioner introduced another
relief by way of amendment, the suit did not continue as a suit
only on the ground of personal necessity and was taken out of
the ambit of Section 11 (1) (c) of the Act. Hence, the final order
passed would be appealable under Section 14 (1) of the Act
27. Section 11 (1) (c) of the Act puts stringent
condition for the tenant and the tenant is required to seek leave
to defend. If the suit is filed on the ground of personal necessity,
mixing of relief would take the suit out of the purview of
Section 11 (1) (c) of the Act and, for this reason, the order
would be an appealable order and not a revisable order. So, it
has been rightly contended by Mr. Dvivedi that a petition under
Section 11 (1) (c) of the Act needs to be unadulterated and no
relief other than on the ground of personal necessity could be
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
20/23
claimed.
28. So far as submission of Mr. Arora that additional
relief was sought under Section 15 of the Act is concerned, the
same is without any merit being contrary to the facts on record.
Section 15 of the Act envisages filing of a petition during the
pendency of the suit for deposit of rent but the same is not the
case here. The rent was claimed by making amendment in the
main petition and the relief was sought that defendant be
directed to pay the due rent till eviction suit with interest.
29. Section 15 of the Act reads as under :
“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 on the tenant to deposit rent month by month
at a rate at which it was last paid and also subject
to the law to 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 before or 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
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
21/23placed 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 landlord’s 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
the eviction to be struck off and proceed with the
hearing of the suit as laid down in sub-section (1)”.
30. Now it cannot be said that the prayer was made for
directing the defendant/tenant to deposit rent month by month at
the rate of last paid. Therefore, whatever may be the submission
of the learned senior counsel for the petitioner, the relief could
not be considered to be a relief under Section 15 of the Act and
the relief was sought in the main petition itself. By introducing
this relief in her main petition, the petitioner’s case was taken
out of the purview of Section 11 (1) (c) of the Act and it was not
a suit simpliciter filed on the ground of personal necessity and
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
22/23
seeking relief of eviction on the said ground.
31. For the aforesaid reasons, the present civil
miscellaneous petition is not maintainable when there is specific
provision making the impugned judgment and decree
appealable. Once it has been held that the present civil
miscellaneous petition is not maintainable, all the points and
issues raised against the judgment and decree of the first
appellate court need no consideration by this Court.
32. Another contention by the learned senior counsel
appearing on behalf of the petitioner about the powers of this
Court under Article 227 of the Constitution of India referring to
the decisions of Shalini Shyam Shetta (supra), Surya Dev Rai
(supra) and Waryam Singh (supra) are misplaced for the reasons
that the power under Article 227 of the Constitution of India is
an extra-ordinary power and has been conferred upon this Court
only to keep the courts and tribunals subordinate to it within the
bounds of their authority and not for correcting mere errors as
has been held in the case of Waryam Singh (supra). So, this
power is to be exercised most sparingly and only in appropriate
cases. Evidently, the petitioner has failed to make out a case for
exercise of power under Article 227 of the Constitution of India.
Though a long list of authorities have been cited on behalf of the
Patna High Court C.Misc. No.54 of 2021 dt.06-05-2025
23/23
petitioner, however, they are simply not applicable to the facts
of the case and none of these authorities supports the claim of
the petitioner that power under Article 227 of the Constitution of
India can be applied even when statutory appeal is provided
under the law.
33. Therefore, in the light of the discussions made
hereinbefore, I do not find the present petition is maintainable
and, hence, the same is dismissed.
34. However, the petitioner is at liberty to have
recourse of law in appropriate proceeding.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR AFR CAV DATE 20.03.2025 Uploading Date 07.05.2025 Transmission Date NA
[ad_2]
Source link