IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1867 of 2009 DEO PRAKASH, son of Bhagwan Das, resident of Mohalla Prasad Bigha, in the town of Nawada, presently residing in Mohalla Garhpar New Area Nawada, P.O. & District Nawada ... Defendant/Petitioner Versus RUDRESHWAR PRASAD GRIYAGEY, son of later Bishun Prasad, Advocate, resident of Kutchery Road, Vijay Bazar Nawada, P.S. and District Nawada ... Plaintiff/ Opp.Party ----------- 14. 10.12.2010 I.A.No. 10307/2010 Having heard learned counsel for the petitioner as also counsel for the opposite party this Court is of the considered opinion that the prayer made therein for addition of one Barhan Devi as O.P.No.2 to this civil revision application is wholly misconceived, inasmuch as the issue involved in this civil revision application is with regard to the judgment and decree dated 15th April, 2009 in Eviction Case No. 158 of 2004 which was filed by the opposite party. It is not in doubt that the said eviction suit filed by the opposite party was decreed on 15.4.2009, whereafter the execution case was also levied by the opposite party being Execution Case No. 1 of 2009 in which an order for vacating the premises was passed on 22.2.2010. It is only 2 after this that the opposite party, the plaintiff landlord, had executed a sale deed on 8.3.2010 in which there is a clear recital not only containing the full facts of the connected eviction suit contested between the petitioner and the opposite party but also that the possession of the premises would be handed over to the purchaser Barhan Devi only after disposal of the execution case wherein an order for vacating the premises had already been made on 22.2.2010. In that view of the matter, this Court does not find the presence of Barhan Devi necessary for adjudication of the issue involved in this civil revision application and therefore, the prayer for addition of Barhan Devi as O.P.No.2 to this civil revision application being wholly misconceived is hereby rejected. C.R.No. 1867/2009 Coming to the merits of the case this Court would find that though the facts lie in a very narrow compass, the usual practice of the tenant to protract such litigation arising out of the eviction case 3 has also been followed with niceties by the petitioner tenant. The case of the plaintiff opposite party in fact was that there was a lease executed for giving the premises on rent which had a life of only 11 months and such lease deed dated 15.3.2002 had expired on 14.2.2003 whereafter when the petitioner tenant was requested to vacate the premises he had given an undertaking to vacate the premises but his such hollow promises proved to be of no avail and accordingly, the plaintiff- opposite party was forced to file the present eviction Suit No. 158 of 2004 on 4.10.2004 seeking eviction of the tenant petitioner only on the ground of expiry of the period of lease by invoking the special provisions of section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ‘the Act’). It has to be noted that during the pendency of the aforementioned eviction suit four civil revision applications were filed by tenant petitioner against the interlocutory orders passed by the court below and all of them were dismissed by this 4 Court, whereafter the judgment and decree of eviction was passed on 15.4.2009. The tenant- petitioner in fact had once again continued with his sole mission of delaying vacating the premises and as such, even when the suit was filed under section 14 of the Act as against which no appeal was maintainable, he had filed an appeal and had consumed a period of almost 5 to 6 months before withdrawing the said title eviction Appeal No. 20 of 2009 vide an order dated 10.9.2009. Thereafter the present revision application was filed on 4.11.2009 and this Court by an order dated 9.11.2009 had condoned the delay in filing of this civil revision application, whereafter an application for stay of the execution case was filed by the petitioner and this Court by the order dated 9.2.2010 had stayed the further proceedings of the aforesaid execution case till further orders. Mr. Binod Kumar Singh, learned counsel appearing on behalf of the petitioner, while assailing the impugned judgment and decree has raised the following issues: 5 (i) The subsequent event of sale of tenanted premises by the opposite party to Barhan Devi has made the impugned judgment and decree unsustainable, inasmuch as when the opposite party has no longer remained landlord he cannot seek eviction of the petitioner, the tenant. In support of this proposition he relies on the judgment of the Apex Court in the case of Gulabbai vs. Nalin Narsi Vohra & ors., reported in AIR 1991 S.C. 1760 and in the case of Shadi Singh vs. Rakha, reported in AIR 1994 SC 800. (ii) On account of transfer of the property, the tenanted premises by the opposite party the ground of expiry of lease cannot be pressed by the purchaser as a lease was between the petitioner and the opposite party and therefore, the order of eviction on account of cession of the ground of expiry of lease having become extinguished, the judgment and decree cannot be maintained. In this regard reliance has been placed on a judgment of this Court in the case of Ram Tahal Modi vs. Ratan Lal, reported in AIR 1989 Patna 13. (iii) Though the suit was filed 6 under section 14 of the Act on merits the decree cannot be sustained, inasmuch as the procedure envisaged under section 14 of the Act was not followed and in this regard reference has been made to the judgment of this Court in the case of Md. Akhtar Khan & anor. vs. Md. Salamul Haque, reported in 1984 PLJR 64. (iv) The court below has erred in deciding the whole case without taking into consideration the most important documentary evidence, Ext. C and C/1. (v) The lease deed was not produced from proper custody and therefore, its authenticity itself was in doubt. Mr. Arun Kumar Arun, learned counsel appearing on behalf of the opposite party, has submitted that neither the factum of subsequent event nor transfer of the property after levying of the execution case by the opposite party would in any way invalidate the impugned judgment and decree especially when in the sale deed itself the opposite party has made it clear that a peaceful possession of the tenanted premises shall be handed over to the purchaser Barhan 7 Devi only after it was restored to him (opposite party) by executing sale deed. As with regard to rest of the submissions on merit of the issue he has supported the findings of the court below in the impugned judgment and has submitted that when the suit itself was filed on the ground of expiry of the period of lease, the procedure followed under section 14 of the Act had been also complied with by the court and therefore, it was not correct to say that the impugned judgment was vulnerable on the ground of non-compliance of the provisions of section 14 of the Act. He has also submitted that the document in question (Ext. C and C/1) was properly considered and authenticity of the lease deed was also proved and the impugned judgment and decree in the suit was passed after considering all the materials on record. This Court would first go into the question of merit because if the judgment is sustained on considering the merits, the issue of subsequent event or transfer of the property being available even after 8 upholding the judgment can be gone into for the relief being now sought by the petitioner in this civil revision application. It is not in doubt that the trial court in the light of the pleadings had framed as many as 11 issues and apart from formal Issues No. 1, 2, 3, 4 and 11 the crucial issues were as follows: Þ¼5½ D;k fdjk,nkjh dh vof/k fnukad 14-2-2003 dks lekIr gks x;h gS vkSj izfroknh fcgkj fcfYMax daVªksy ,DV ds fo”ks’k izko/kkuksa ds rgr csn[ky fd, tkus ;ksX; gS ? ¼6½ D;k oknh edku ekfyd vkSj fdjk,nkj ds laca/k dks fookfnr nwdku ds laca/k esa fl) djus esa lQy jgk gS ? ¼7½ D;k oknh viuk okn fl) djus esa lQy jgk gS ? ¼8½ D;k nksuks i{kksa ds chp fnukad 15-3-02 dks dksbZ yht MhM gqvk Fkk vkSj D;k fnukad 15-3-02 dk dfFkr yht MhM tkyh vkSj cukoVh gS ? ¼9½ D;k izfroknh us oknh dks fookfnr nwdku dk fdjk;k ekpZ 2003 ls twu 2004 rd dk Hkqxrku dj fn;k gS ? ¼10½ D;k fnukad 6-3-2004 dk v.Mj Vsfdax tks dfFkr :i ls izfroknh }kjk cuk;k x;k gS] og tkyh] cukoVh o NsM+NkM+ fd;k gqvk gS ?” As would be noticed above, issue No. 8 was with regard to execution of the lease deed dated 15.3.2002 and such an issue in the light of the oral and documentary evidence was considered at length and the court below had come to a finding that the lease deed dated 15.3.2002 on all its four pages had contained the signature of the petitioner and the opposite party. For arriving at such finding the court below had 9 not only looked into the oral evidence led by the parties but had found the written undertaking given by the petitioner for vacating the premises on 6.3.2004 to be beyond doubt. That is how this issue was also answered by the court below in favour of the opposite party. As a matter of fact Mr. Singh has fairly submitted that the petitioner recognizes the opposite party as his landlord and that is how he has developed the issue of its being sold to Barhan Devi making the eviction suit and decree infructuous on account of subsequent event. The moment the petitioner accepts that the opposite party was his landlord, the issue of relationship of landlord and the tenant being established, the petitioner would be hard pressed to avoid his own signature on the lease deed dated 15.3.2002. In fact the court below while examining the issue No.8 has gone into the authenticity and correctness of the lease deed dated 15.3.2002 and the undertaking dated 6.3.2004 and has referred to the evidence of P.W.1 R.P. Griyagey, wherein he had given details 10 of the person who had drafted a lease deed as also one Abu Muzahid who had been witness to such lease deed. This documentary evidence of execution of the aforementioned lease deed (Ext.1) was also proved by P.W.2 Magan Bihari Sharan, who had proved the documentary evidence in form of Ext. 3/1, containing the deposition of Complaint Case No. 767/2004, wherein the petitioner himself to a court question had admitted that a lease deed was executed on 15.3.2002. Further Ext. 3/2 was also relied by the court below which was the deposition of the son of the petitioner who too in his deposition before the court had accepted execution of such lease deed. Ext. 4 was also considered by the court below which was an order passed by the House Controller, Nawadah. Finally the court below has also looked into the plaint of Title Suit No. 120 of 2004 (Ext. 5) wherein also the petitioner, the plaintiff of that case, while seeking declaration of the title of the tenanted premises has himself admitted in paragraph no.3 that a lease deed was executed for a period of 11 months on 11 15.3.2002. The detailed discussion, therefore, by the court below on this issue will leave nothing for speculation that execution of lease deed by the petitioner on 15.3.2002 was proved beyond doubt and since the petitioner had brought the allegation of such lease deed to be forged, onus was on him to put his signature for verification to establish the fact that his signature on the lease deed was manufactured. However, nothing is on record to show that the petitioner had taken any step for establishing this aspect. Mr. Binod Kumar Singh, learned counsel for the petitioner, however, had tried to capitalize on the issue of non- examination of the attesting witness to the lease deed, namely, Abu Muzahid. In this regard he has submitted that when the notices were sent to Abu Muzahid on the address given therein it was reported that no such person by such name lived in the locality. On the basis of this endorsement Ext. C and C/1 he has proceeded to submit that Abu Muzahid who had appeared before the court in his deposition was a fake person 12 and therefore, the petitioner did not allow him to be examined. This Court would fail to understand such attitude of the petitioner, inasmuch as when a person claiming to be Abu Muzahid was produced by the plaintiff- opposite party, his examination could not have been refused by the petitioner, the defendant tenant, on the ground that he was a fake person. As a matter of fact he could have been examined by the petitioner and also cross-examined for establishing that the person claiming Abu Muzahid was not one who was the attesting witness of lease deed and in fact was a fake person. The moment this Court would find that Abu Muzahid was before the Court and it was the petitioner who did not allow him to be examined by taking an objection, at least he cannot capitalize on this issue of non-examination of the witness Abu Muzahid. In any event even in absence of the attesting witness when the maker of the document, the plaintiff- opposite party himself, had been examined and deposition in the complaint case of the petitioner admitting himself to have executed a lease 13 deed dated 15.3.1982 it was also relied by the court below would not leave anything further for this Court to conclude that the petitioner, tenant was only buying time by refusing to examine Abu Muzahid. The fact that the petitioner had filed four civil revision applications, C.R.No. 819/2005, C.R.No. 2349/2005, C.R.No. 1593/2006 and C.R.No. 810/2008, all of whom were dismissed, would go to show that the petitioner was well aware of his rights as with regard to so called prejudice on account of non-examination of Abu Muzahid at the relevant point of time. Therefore, if the petitioner did not allow Abu Muzahid to be examined in course of hearing of the suit, he cannot now make an issue for setting aside the impugned judgment and decree. This Court would also not find any substance in the submission of Mr. Singh that the lease deed was not produced from proper custody or lease deed was found to be genuine without considering the evidence, Ext. C and C/1. Ext. C in fact is only a copy of the service report of summon sent on 14 Abu Muzahid and Ext. C/1 is a service report of summon on Prawez Hassan. When Abu Muzahid had already appeared before the court, no useful purpose could have been served on going to the correctness or otherwise of the averments made in the service report, Ext. C and therefore, when the court had a number of admitted documents including the deposition of the petitioner in the court admitting the execution of the lease deed dated 15.3.2002, it cannot be said that the cumulative effect of Exts. C and C/1 was not taken into account. This Court would also find it difficult to accept the submission of Mr. Singh that when the plaintiff- opposite party had produced the original copy of the lease which was proved and marked as Ext.1 without any objection, the issue of its being produced from proper custody could have made any difference. The plea of the petitioner that the procedure under section 14 was not followed is factually incorrect, inasmuch as from the records of the court below it would appear that on 23.12.2004 after the petitioner had appeared in the suit he had sought leave by 15 filing affidavit to contest the suit which was also accorded as is apparent from the order of the court below dated 23.12.2004. This Court, therefore, is satisfied that this plea of non-observance of the procedure under section 14 is wholly untenable and in fact when the petitioner in capacity of defendant tenant after obtaining leave of the court has also filed his detailed written statement on 5.1.2005 as also had led his evidence in course of hearing of the suit, it would be difficult for this Court to hold that the procedure as engrafted under section 14 was not followed. Once this aspect becomes clear the reliance placed by the learned counsel for the petitioner on the judgment of this Court in the case of Md. Akhtar Khan & anor, (supra) will have no application wherein the issue in question was as to whether the court of appeal had committed an error of jurisdiction in applying the provisions of section 14(8) of the Act while refusing to admit the appeal. Thus having found that there is no error in the impugned judgment and decree and the petitioner has got no case on merit 16 this Court has to now examine the effect of subsequent event as with regard to the sale of tenanted premises by the plaintiff- opposite party in favour of Barhan Devi on 8.3.2010. It has to be kept in mind that in the sale deed in para 8 the full facts with regard to contesting of the suit and pendency of the execution case was narrated in the following terms: Þ;g fd foØ; nwdku ds fuLor ys[;dkjh cuke nso izdk”k ds chp ,d eksdnek ,HksDlu lwV u0 158@2004 bZ0 pyk FkkA ftles ys[;dkjh fMxzh gksYMj gS oks fnukad 15-4-2009 bLoh dks ys[;dkjh ds i{k esa fMxzh gkfly ys pwds gS oks ys[;dkjh ds i{k esa fMxzh btjk; lquokbZ ds ckn fnukad 22-2-2010 bLoh dks nso izdk”k dks fudklu dk vkns”k gks pqdk gS ftldh izfØ;k tkjh gS okngq U;k;yk; ds oS/kkfud izfØ;k ds ckn fcØh dh x;h nwdku vnkyr ds }kjk okLrfod dCtrk feyus ij ys[;dkjh ys[;/kkjh dks vfoyEc okLrfod dCtk n[ky ns nsxsAÞ Thus, when the subsequent event also takes notes of not only disposal of the eviction suit in favour of the plaintiff- opposite party, the vendor, but also pendency of the execution case with full details of an order dated 22.2.2010 directing the petitioner’s eviction by the executing court it cannot be said that the subsequent event of executing sale deed on 8.3.2010 in any way would affect the impugned judgment and decree dated 15.4.2009, whereby and whereunder the 17 petitioner was directed to vacate the premises within a period of two months. The reliance placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of Gulabbai vs. Nalin Narsi Vohra & ors. (supra) is also wholly misplaced, inasmuch as the issue of bonafide requirement of landlord which was sought to be fulfilled by availability of alternative accommodation during the pendency of the appeal was taken to be a ground for mitigating the requirement of the landlord. This Court would fail to understand as to how this judgment can be made applicable as with regard to a suit which was filed on the ground of expiry of lease and the landlord till the date of judgment remained the landlord and had only sold the property after levying the execution case wherein the sale deed contained a clause of delivery of possession depending on the result of the execution case. Similarly reliance placed by the learned counsel for the petitioner in the case of Shadi Singh vs. Rakha (supra) is also wholly inapplicable to the 18 facts of the present case, inasmuch as before the Apex Court the issue in that case was with regard to demolition and reconstruction by way of a subsequent event when the building had become unfit and unsafe for human habitation and it was in this context that the Apex Court had held that the cause of action for eviction had no longer subsisted because the tenant had affected repairs and replaced that part of the fallen roof. One would again fail to understand as to how this judgment can be made applicable to the facts of the present case where the subsequent event is only sale of tenanted premises after the judgment and decree and during the pendency of the execution case with a specific clause in the sale deed of delivery of possession of the sale only after its being made available to the plaintiff- opposite party in course of execution proceedings. This Court in fact would also not find that the transfer of the suit property in any way would have disentitled the plaintiff- opposite party in contesting this civil revision application and to that 19 extent the submission of Mr. Singh by placing reliance on the judgment of this Court in the case of Ram Tahal Modi vs. Ratan Lal (supra) seems to be wholly misplaced. In the case of Ram Tahal Modi (supra) in a suit for eviction the suit property was transferred only during the pendency of the suit and the transferees were added as plaintiffs. In that context it was held that the default in payment of rent committed by the tenant long before transfer while transferees were not the landlord when such default was committed and as transferees could not get any advantage of these defaults for evicting the tenant on the ground of default in payment of rent. The fact of this case in fact is otherwise wherein the period of lease having expired, the plaintiff- opposite party in the suit of eviction having obtained the decree of eviction and after putting the same under execution and getting an order for eviction of the petitioner had sold the suit property on 8.3.2010 which in no view of the matter would disentitle him in contesting the civil revision application in view of the fact 20 that under Clause 8 of the sale deed its delivery of possession has yet to be effected by the plaintiff opposite party to the purchaser Barhan Devi. That being so, this Court would not find any merit in this application and consequently, this civil revision application is dismissed and the interim order passed by this Court on 9.2.2010 is also hereby vacated. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) Surendra/