Dineshwar Prasad Bakshi v. Parmeshwar Prasad Sinha

JUDGMENT

S.B. Sinha, J.

1. This second appeal raises a question of interpretation of order viii, rule 10 of the civil p.c.

2. The facts of this case lie in a Very narrow compass.

3. The plaintiff-respondent brought a suit for eviction from the premises in suit against the defendant-appellant and also for a decree for a sum of Rs. 5,824,54 on account of arrears of rent and electric charges. In the said suit, summons was issued to the appellant who appeared in the trial Court on 25th Feb., 1985, and filed an application for time to file written statement which was allowed and the appellant was granted time to file his written statement till 23rd Mar., 1985, on which date also, no written statement was filed and, again, an application for time was filed on behalf of the appellant. The learned Court below granted time to the defendant to file written statement till 30th April, 1985. On 30th April, 1985, neither any application for time was filed nor any step therefore was taken. The learned trial Court below thereafter proceeded to pass a decree in favour of the respondent and against the appellant, purported to be in terms of order viii, rule 10 of the civil procedure code.

4. According to the learned trial Court, the plaintiff was entitled to a decree in the suit in terms of order viii, rule 10 of the civil p.c., as the defendant did not file his written statement during the prescribed period.

5. The appellant being aggrieved by and dissatisfied with the judgment aforementioned preferred an appeal in the Court of the Judicial Commissioner, Ranchi, which was registered as Title Appeal No. 29 of 1985 and the same was eventually transferred to the Court of the 4th Additional Judicial Commissioner, Ranchi, for disposal, who, by his judgment dt. 6th Dec., 1986, dismissed the said appeal.

6. This second appeal arises in the aforementioned circumstances.

7. By an order dt. 2nd Mar., 1987, while admitting this appeal, the following substantial question of law was framed by this Court.

''When the time is granted by the Court to defendant to file written statement, whether order 8, rule 10 of the civil p.c. shall apply."

However, by the said order, an opportunity was given to the appellant to frame other substantial question of law at the time of hearing.

8. Mr. N. K. Prasad, learned Senior Counsel appearing on behalf of the appellant, has raised another question of law at the time of hearing of this appeal which being a pure question of law, I permitted him to raise which is as follows : --

"Whether in view of section 11 of the bihar buildings (lease, rent and eviction) control act, 1982, which requires a satisfaction on the part of the Court before it pronounces its judgment of eviction with regard to the existence of one or other of the factors mentioned in various clauses contained therein, the provisions of order viii, rule 10 of the civil p.c. can be said to have any application.''

9. order viii, rule 10 of the civil p.c. reads as follows : --

"When any party from whom a written statement is required under Rule 1 or 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."

10. From a perusal of the aforementioned rule, it would be evident that the power has been conferred on the Court under this Rule to pronounce the judgment when a written statement demanded by the Court from the defendant has not been presented within the time permitted or fixed by the Court, Earlier some of the High Courts were of the view that order viii, rule 10 of the civil p.c. applies in cases where the parties fail to produce written statement in terms of Order VIII, Rr. 1 and 9 of the Civil P.C.; whereas, some of the High Courts took a contrary view and held that the said rule had the application only in a case where the written statement required under order viii, rule 9 of the Civil P.C was not presented by the defendant within the time fixed by the Court. The Patna High Court had taken a conflicting view in the case of Govind Ram Agarwala v. Harsukhrai Doshi, 1969 EUR 367 and in the case of Binda Prasad v. United Bank of India Ltd., AIR 1961 Pat 152.

11. However, on a plain reading of the aforementioned Rule, as the same stands amended under the Civil P.C. (Amendment) Act, 1976, there cannot be any doubt that written statement therein refers to a written statement which is required by the Court. The requirement of the Court to file a written statement may be both under order viii, rule 1 or order viii, rule 9 of the civil p.c.

12. Sufferance of a judgment without being allowed to contest entails a grave consequence so far as a litigant is concerned. order viii, rule 10 of the civil p.c. is one of such provisions and thus the same, in my view, requires strict interpretation,

13. The judgment pronounced under order viii, rule 10 of the civil p.c. must satisfy the requirement of the judgment as defined in section 2, sub-section (9) of "the civil p.c. and, therefore, the Court should go into the case and pronounce its judgment upon the facts, so far as they were before it. In a case wherein the satisfaction of the Court to pass a decree of eviction is circumscribed by the conditions enumerated in different clauses of section 11(1) of the bihar buildings (lease, rent and eviction) control act; there cannot be any doubt that in pronouncing the judgment the facts must appear on the face of it before a decree can be pronounced.

14. section 11(1) of the bihar buildings (lease, rent and eviction) control act reads as follows : --

"11(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one of more of the following grounds :--

(a) for breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;

(b) where the condition of the building has materialy deteriorated owing to acts of waste by, or negligence or default, of, the tenant or of any person residing with the tenant or for whose behaviour the tenant is responsible;

(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord :

Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building arid allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of Clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under Section 5;

(d) where the amount of two months' rents, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16;

In case of a tenant holding on a lease for a specified period on the expiry of the period of the tenancy; and

(d) the landlord requires the premises in order to carry out any building work at the instance of the Government or the Municipality, or Municipal Corporation or the Notified Area Committee or the Regional Development Authority or any other Authority within whose jurisdiction the building lies and such building work cannot be properly and fully carried out without the premises being vacated."

15. So far as the judgments under rent legislations are concerned, they must ex facie demonstrate the application of mind failing which the decree shall be a nullity. Such an application of mind is required even where the judgment is passed on consent.

16. section 11(1) of the bihar buildings (lease, rent and eviction) control act contains a non obstante clause. The words 'notwithstanding anything contained in any contract or law to the contrary', are of wide amplitude. The existence of one or the other conditions mentioned in various clauses of section 11(1) is a condition precedent to exercise jurisdiction by the Court before it can pass a decree for eviction.

In such a situation, the Court must state the grounds for its conclusion and passing of a mere decree mechanically without application of mind as has been sought to be done in the instant case does not satisfy the requirement of the judgment as defined in section 2(9) of the code.

The power of the Court to grant time to file written statement must necessarily include a power to extend the same as has been held in Mahanth Ram Das v. Ganga Das., AIR 1961 SC 882. It is a cardinal principle of interpretation of statutes that the Courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect [See J. K. Cotton Spinning Weaving Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170]. "

17. Further, the words used in order viii, rule 1, are absolutely unambiguous. In terms of the said rule, a party is entitled to file written statement till the date of first hearing, i.e., the settlement of issues or within such time as the Court may permit. The Court has, therefore, jurisdiction to accept the written statement even after the date of first hearing. In terms of order viii, rule 1 of the civil p.c. as amended by the 1976 Amendment Act, it has become imperative on the part of the defendant to file his written statement.

18. Reading order viii, rule 1 and order viii, rule 10 together, there cannot be any doubt that both have got to be construed harmoniously.

In my opinion, it is not imperative on the part of the Court to pronounce its judgment on the basis of the plaint alone on the ground that no written statement has been filed by the defendant. Although as mentioned hereinbefore the filing of the written statement has been made obligatory and the Court has been empowered to pass its judgment on the basis of the plaint, the discretion of the Court has been preserved and despite non-filing of the written statement, the Court "may pass any other order as it may think fit" or in terms of order viii, rule 10, the Court may further in its discretion require any particular fact mentioned in the plaint to be proved as laid down under order viii. rule 5, sub-rule (2) of the civil p.c. It may further be borne in mind that none of the procedural provisions contained in the Civil Procedure Code fetters the discretion of the Court for extending the time to file written statement in view of the provisions contained in sections 148 and 149 of the civil p.c. Even if in the opinion of the Judge the defendant is found to be adopting dilatory tactics, in such case, also the Court should examine the case of the plaintiff on its merits before it passes a decree. However, as far as possible, passing of an ex parte decree should be avoided as the same may give rise to various other complications. Reference in this connection may be made to the case of State of U.P. v. Dharam Singh Mahra AIR 1983 All 130.

19. It may further he observed that in passing a decree in terms of order viii, rule 10 of the civil p.c., the Court must exercise the same with due care and caution and its discretion must be based on relevant circumstances, before it proceeds to pronounce its judgment without going into the merits of the plaintiffs case.

20. In the instant case, neither the requirement of order viii, rule 10 of the civil p.c. has been fulfilled nor the Court passed a judgment in accordance with section 11(1) of the bihar buildings (lease, rent and eviction) control act. There has been no application of mind whatsoever on the part of the learned trial Court. The impugned judgment, therefore, cannot be sustained.

21. Before, parting with the case, the two submissions made on behalf of the respondent should be noticed. Mr. P. K. Sinha, learned counsel for the respondent submitted that the defendant has no right to file written statement after the date of the first hearing, i.e., the date of the settlement of issues. In this connection, he has referred to the cas.e of Sial Sinha v. Shivadhari Sinha, AIR 1972 Pat 81 and Smt. Ram Surat Devi v. Smt. Satraji Kuer, AIR 1975 Pat 168. There is no dispute so far as the proposition of law enumerated in the aforesaid decisions is concerned.

However, as found hereinbefore, the Court has an unlimited power to exercise its discretion to grant further time to the defendant to file written statement even if he fails to do so on the date of the first hearing, as order viii, rule 1, civil p.c. provides that the defendant shall present a written statement on or before the first hearing or within such time as the Court may permit (underlining is mine for emphasis). In view of the fact that it is for the trial Court to consider as to whether it should grant further time to the defendant to file written statement or not, I am not expressing any opinion in this regard.

22. Mr. Sinha also submitted that, by order dt. 11th Nov., 1987, this Court directed that the application filed by the respondent for deposit of rent in terms of the order passed by the House Controller should be considered at the time of the final hearing of this appeal. From the order dt.2nd Mar., 1987, it appears that an ad interim order of stay was passed staying the delivery of possession in Execution Case No. 40 of 1985. By an order dt. 11th Mar., 1987, the said interim order of stay was made absolute, subject to the condition that the appellant would deposit in the executing Court the arrears of rent, if any, up to the month of Feb., 1987, at the rate of Rs. 200/-per month by the 15th April, 1987, and further the appellant was directed to deposit the rent for Mar., 1982, and all subsequent months in the executing Court by the 15th of the next month following.

The respondent thereafter filed an application for a direction by this Court that the appellant should deposit the rent at the rate of the fair rent fixed by the Controller but the said prayer was expressly refused by this Court by an order dt. 2nd July, 1987.

However, upon another application having been filed, this Court by an order dt. 11th Nov., 1987, observed that the application for deposit of rent in terms of the order passed shall be considered at the time of final hearing of this appeal.

23. Having heard the learned counsel for the parties, I am of opinion that no order should be passed at this stage on the aforementioned application in view of the fact that such a prayer was expressly refused by the order dt. 2nd July, 1987. However, in view of the fact that all the orders aforementioned have been passed by this Court in exercise of its power under order xli, rule 5 of the civil p.c., it would be open to the appellant to file a fresh application before the learned Court below in this regard who shall dispose of the same in accordance with law.

24. In the result, this second appeal is allowed, the judgment and decree passed by the Court below is set aside and the case is remitted back to the trial Court for disposal in accordance with law. In view of the fact that one of the grounds of eviction being personal necessity of the landlord, the learned trial Court must dispose of the suit within two months from the date of receipt of lower Court records. However, in the circumstances of this case, there will be no order as to costs.