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PETITIONER: BELA DAS & ORS.

       Vs.

RESPONDENT: SAMARENDRA NATH BOSE

DATE OF JUDGMENT11/12/1974

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. MATHEW, KUTTYIL KURIEN BHAGWATI, P.N.

CITATION:  1975 AIR  398            1975 SCR  (2)1004  1975 SCC  (1) 644  CITATOR INFO :  RF         1989 SC 162  (11,12)

ACT: Landlord  and  tenant suit for eviction--Tenants  plea  that landlord  alone could not maintain suit as there were  other co-sharers-Siriking out defence on the ground of non-payment of arrears-Whether tenant could contest on basis of title.

HEADNOTE: The respondent was tenant of certain premises.  As a  result of  a  decree in a partition suit the premises fell  to  the share of the appellants and they filed a suit for  eviction. They  also  applied  under s. 11A  of  the  Bihar  Buildings (Lease, Rent and Eviction) Control Act, 1947, for payment of arrears  of rent, and the Court directed the respondents  to pay into court the arrears and future rent.  The  respondent did  not  comply  with  the order and  his  detenue  to  the eviction  suit  was  struck out.   Thereafter.  an  ex-parte decree  evicting  the  respondent  was  passed  and  it  was confirmed  by the first appellate Court.  In second  appeal, the  High Court remitted the case to the trial Court on  the ground  that since  the respondent had  not  admitted  the appellants to be full owners of the prermises but  contended that  other  co-sharers of the appellant’s family  had  also shares  therein, there was a denial of the  relationship  of landlord  and  tenant between the parties and so  the  order striking  out  the respondent’s defence qua tenant  did  not prevent  him  from contesting the suit on  the  question  of title. Allowing the appeal to this Court, HELD.  The respondent had admitted that he was tenant  under the   appellants  and  had  paid  rent  to  the   appellants recognising  them as his landlords.  It was not therefore  a case  of  denial  of relationship of land  lord  and  tenant between the parties.  His plea was only that the  appellants being  landlords  of a share of the premises  could  not  by themselves  claim a decree of eviction against him.  Such  a plea was a plea qua tenant and not dehors it.  The  striking out of his defence had thus, the effect of striking out  all the  defences raised by the respondent qua tenant  including his  defence that the appellants being  co-sharer  landlords

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were  not entitled to maintain the suit for eviction.  [1006 C-F] Mahabir  Ram v. Shiva Shanker Prasad and Ors.   A.I.R.  1968 Patna, 415 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 425 of 1970. Appeal by Special Leave from the judgment & decree dated the 17th September, 1969 of the Patna High Court in Appeal  from Appellate decree No. 262 of 1969. Purshottam Chatterjee and H. K. Puri, for the appellants. R. B. Datar and D. N. Mukherjee, for the respondent. The Judgment of the Court was delivered by UNTWALIA, J.-,This appeal by the plaintiffs filed by special leave of this Court against the defendant respondent  arises out of a suit for eviction instituted by the former  against the  latter from the suit premises situated in the  town  of Patna.    According  to  the-case  of  the  plaintiffs   the defendant  had  been  inducted as a monthly  tenant  of  the premises  on a rent of Rs., 135/- per month.   Subsequently, as  a  result of a decree in a Parititon Suit  between  the plaintiffs and  1005 their co-sharers the property was allotted to the former and they became the absolute owners thereof.  Plaintiffs  wanted to evict the defendant on the ground of non-payment of rent, breach  of the conditions of the tenency and on  account  of their  bonafide personal requirements of the suit  premises. The  defendant in his defence took the plea that he was  not the tenant of the premises, the tenant was Liberty & Co. and that the plaintiffs were not the absolute owners thereof, as the  decree  for  partition had been set aside  in  a  first appeal filed in the Patna High Court, there were others  who also were the landlords.  Some other pleas were also raised to resist the suit for eviction. The  suit  was instituted on 27-9-1962.  On  18-12-1963  the Plaintiffs filed a petition under section 1 1 A of the Bihar Buildings  (Lease,  Rent and Eviction)  Control  Act,  1947- hereinafter  called the Act-for directing the  defendant  to pay the arears of rent as also the current and future  rent. The  defendant resisted the, claim of the  plaintiffs  under section 11A of the Act on the ground that besides them there were  other landlords of the building in question.   But  an order  under  section 11A of the Act was  made  against  the defendent by the Trial Court on 6-2-1964.  To safeguard  the interest  of  the  defendant the  Court  directed  that  the plaintiffs  would  not  withdraw the  amounts  deposited  in pursuance  of the order made under section 1 1 A of the  Act until the disposal of the suit.  The defendant defaulted  in compliance  with  the order.  Hence his defence  as  against ejectment was struck out by an order of the Trial Court made on 8-7-1964.  The suit was eventually taken up for  ex-parte hearing  On 1-7-1967.  The defendant wanted to obstruct  the hearing of the suit proceeding ex-parte but failed. At  the  ex-parte  hearing  plaintiff  no.  3  examined   as plaintiffs’  witness no. 1. He supported their case in  toto including their claim that they were the absolute owners  of the  building  of which the defendant was the  tenant.   The Munsif, third Court, Patna believed the evidence adduced  on behalf  of  the  plaintiffs and passed  on  ex-parte  decree directing eviction of the defendant.  The latter went up  in appeal  which  was  dismissed by  Subordinate  Judge,  First Court,  Patna on 21-4-1969.  All arguments raised on  behalf

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of the defendant appellant to challenge the ex-parte  decree failed.  He preferred second appeal no. 262/1969 in the High Court of Judicature at Patna.  A learned Judge of that Court sitting singly allowed the appeal and remitted the case back to  the  Trial Court for a fresh trial  and  decision  after allowing opportunity to the parties to adduce their evidence in  the  light  of  the Judgment of  the  High  Court.   The plaintiffs  appellants challenge the propriety and  legality of the High Court Judgment passed in the second appeal. The  High Court rejected some of the contentions  raised  of behalf  of  the defendant to challenge the legality  of  the order made under section 1 1 A of the Act as also the  order striking  out his defence as against ejectment.  But it  has taken  the  view following the full Bench  decision  of  the Patna  High  Court  in the case of  Mahabir  Ram  v.  Shiva Shanker Prasad and other(1) that since the defendant had not admitted  the plaintiffs to be his 16 annas  landlord  there was a denial of relationship of landlord and tenant  between the  parties and as such the order striking out the  defence is against ejectment of the defendant qua (1)  A.I.R. 1968 Patna 415. 1006 tenant could not prevent him from contesting the suit on the question of title.  In our opinion the High Court has fallen into an error of law in applying the ratio of the Full Banch decision of the High Court referred to above to the facts of the instant case. The  defence  set up by the defendant that he  was  not  the tenant but the tenant was Liberty & Co. was a mere pretence. The High Court has also not thought it fit to remit the case back because of this defence.  The defendant was carrying on the business in the assumed name of Liberty & Co. which  was not  any  legal  entity  or  a  person  different  from  the defendant. The defendant had admitted that he was the tenant under  the plaintiffs  but  was merely asserting that there  were  some more  landlords of the premises in question.  It was  not  a case  of  denial  of relationship  of  landlord  and  tenant between the parties.  In the case of Mahabir Ram A.I.R. 1968 Patna 415, the tenant had denied the title of the plaintiffs and set up a title in himself.  In the instant case the plea of  the  defendant  has  been  that  the  plaintiffs   being landlords  of the suit premises for a moiety of share  could not  alone claim a decree for eviction against him.  Such  a plea set up by the defendant to resist the suit for eviction was  a plea qua tenant and not dehors it.  The striking  out of  the defence on 8-7-1964 had the, effect of striking  out all defence raised by the defendant qua tenant including his defence that the plaintiffs alone being  co-sharer-landlords were not entitled to maintain the suit for eviction.  It may also be added that the learned Munsif in. his order dated 8- 7-1964  striking out the defence, which order was  confirmed by  a Bench of the High Court in Civil Revision No.  824  of 1964  decided on 21-4-1964, bad pointed out on the basis  of the defendant’s statements in his written statement as  also in  his rejoinder to the plaintiffs’ petition under  section 11A  of the Act that the defendant had admitted that he  was paying rent to the plaintiffs and had recognised them to  be their  landlords.   In  that view of  the  matter  also  the plaintiffs were the landlords of the suit premises  occupied by the defendant within the meaning of clause (d) of section 2  of  the  Act. In either view of the matter  there  is  no escape  for  the, defendant in this case that  his  entire defence  in the suit was in his capacity as a tenant and  on its striking out it was struck out as a whole.  The  hearing

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of  the suit ex-parte was, therefore, legal and valid.   The contrary view taken by the High Court is erroneous in law. Mr.  H.  B.  Datar,  learned  counsel  for  the   respondent endeavoured  to  persuade us to remit back the case  to  the High  Court for the rehearing of the second appeal in  order to  find  out  whether  the exparte  decree  passed  on  the evidence  adduced was sustainable, in law.  We did not  feel persuaded  to  accede to this request of the counsel  as  on perusal  of the judgment of the Trial Court as also  of  the first appellate Court we found no error of law in them.  The suit for eviction was rightly decreed. In the result this appeal is allowed but without costs.  The judgment of the High Court is set aside. V.P.S. Appeal allowed. 1 0 0 7