IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2979 of 2011 Aditya Prakash Verma @ Aditya Kumar Verma Versus Ramesh Raut ----------- 2 22.7.2011 Heard counsel for the petitioner and learned counsel for the respondent. The petitioner has challenged the order dated 24.12.2010 passed under section 15 of the B.B.C. Act in eviction Suit No.49 of 2008. The plaintiff-respondent instituted Eviction Suit No.49 of 2008 before the Sub Judge X, Patna on the ground of his personal necessity and default in payment of rent. The petitioner-defendant appeared in the suit and filed a written statement on 1.8.2009 and denied all assertions of the plaintiff and also stated that no relationship of land lord and tenant exists between the parties. During the proceeding, the plaintiff filed a petition under section 15 of the B.B.C. Act on 15.12.2009 for payment of monthly rent to which the defendant filed his rejoinder on 18.3.2010. The plaintiff thereafter filed a supplementary petition dated 25.8.2010 which the defendant replied on 20.9.2010. The plaintiff has claimed monthly rent @ Rs.2500 per month whereas the case of the defendant- petitioner is that he is a tenant of a different person and he is paying monthly rent @ Rs.2000/- per month to him. The trial court after hearing both the parties have directed the defendant-petitioner to deposit the arrears of rent @ Rs.2000 per month within 15 days from the date of that order and also to deposit current rent @ Rs.2000/- per month by 15th day of following month till 2 the disposal of the suit. The defendant was directed to file a copy of the challan as such in the Court. Learned counsel for the petitioner submits that before the court directs a person, who has been arrayed as tenant in the Eviction suit, has to prima facie give a finding that the person concerned is the plaintiff‟s tenant. He submits that trial court has not recorded such finding. In support of his submissions, learned counsel has relied upon decisions in the case of Birjay Prasad Singh and ors v. Nil Ratan Singh, reported in 1998(2) BLJ 503 particularly paragraph 4 as well as in the case of Binay Kumar Poddar v. Bhamar Lal Maharaj & anr, reported in 1997(1) PLJR 789. Learned counsel for the respondent submits that the order passed by the learned trial court is just and proper and while directing the defendant to deposit the monthly rent as well as arrears of rent under section 15 of the Act, a Court is not required to record any such prima facie finding of relationship of land lord and tenant at that stage. He submits that such finding can be required only at the time of final adjudication of the case. In support of his submissions, learned counsel has relied upon a decision in the case of Champa Lal Sharma Vs. Smt. Sumita Maitra, reported in 1989 PLJR 381. I have heard learned counsel for the petitioner and learned counsel appearing on behalf of the respondent. The issue is whether the Court is required to give a prima facie finding regarding existence of relationship of land lord and tenant before it directs the defendant-tenant to deposit the arrears of rent or monthly rent under section 15(2) of the B.B.C. Act in an Eviction case. 3 The stand of the plaintiff-respondent is that sub-section (2) of Section 15 no where provides that before directing the tenant to deposit the arrears of rent, the Court has to record a prima facie finding regarding existence of relationship of land lord and tenant between the parties. In my view, the submission of learned counsel for the respondent is erroneous in law. Sub-section (2) of Section 15 states that if 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 ordinarily the plaintiff may not be entitled to withdraw the amount until the Court otherwise order or decides the dispute. For deciding the issue, section 15(1) of the Act would be relevant which states that if, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, land lord 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. The word „tenant‟ used in section 15(1) and 15(2) holds significance. The Court cannot issue such direction to deposit rent to any person who is not a tenant. Where the tenant disputes that he is not a tenant of the plaintiff then in such circumstances the Court before passing the order under section 15 of the Act is to prima facie record a finding that the relationship of land lord and tenant exists between the parties. The higher Court would not usually interfere or go into sufficiency or satisfaction of such finding. In the instant case the defendant denied that he is a tenant of the plaintiff. In such circumstances, it was prima facie incumbent upon the Court to give a prima facie finding regarding existence of the 4 relationship of the land lord and tenant between the parties. At least there should be some application of mind to the circumstances that relationship of land lord and tenant exists between the parties pending final adjudication of the matter. The trial court has not even remotely stated that he is prima facie satisfied that the relationship of the land lord and tenant exists between the plaintiff and the defendant. The petitioner has rightly relied upon decisions in the case of Birjay Prasad Singh (supra). In the aforesaid case the plaintiff-land lord filed an application under section 15 of the Act for a direction to the defendant to deposit the arrears of rent. The defendant denied the relationship of land lord and tenant. The defendant stated that he is full brother of the plaintiff and he was not a tenant of the premises. The trial court directed the defendant to deposit the rent under section 15 of the Act. This Court quashed the order of the trial court observing that instead of coming to a prima facie finding with regard to existence of relationship of land lord and tenant, the court below on assumption held that the relationship exists. In the case of Binay Kumar Poddar (supra) relied upon by the petitioner, the plaintiff filed a petition under section 15 of the B.B.C. Act. The defendant-tenant denied the relationship of land lord and tenant. The trial court directed the defendant to make payment of monthly rent under section 15 of the Act. The defendant-tenant challenged the order in this court on the ground that the trial court has not recorded any prima facie finding with regard to the relationship of land lord and tenant. The learned Single Judge upheld the contention of the defendant-tenant and directed the trial court to pass a fresh order 5 after recording the prima facie finding. Learned counsel for the respondent have relied upon a decision of this court in the case of Champa Lal Sharma (supra) particularly paragraph 4 and 10. It would be apt to quote paragraph 4 of the judgment which reads as follows: “4. On 28.3.1985 the plaintiff-opposite party filed an application in terms of section 15 of the said Act for a direction that the defendant be asked to deposit the arrears of rent as well as current and future monthly rent. By an order dated 20th March, 1987 the said application was allowed and the defendant was directed to deposit before the learned court below a sum of Rs.1260/- towards arrears of rent. In the said order the trial court observed that although the defendant has challenged the title of the plaintiff with regard to the suit premises; but as himself admitted to be a tenant of a 3rd party and not under the plaintiff; the plaintiff would not be entitled to withdraw the amount in deposit. A copy of the said order dated 20th March, 1987 is contained in Annexure-1 to the civil revision application”. It would appear from perusal of paragraph 4 of the judgment that the tenant challenged the title of the plaintiff with regard to the suit premises, but admitted to be a tenant of a 3rd party of the same suit premises. Neither para 4 nor para 10 of the judgment support the contention of respondent, that no finding of relationship of land lord or tenant is to be recorded at stage of Section 15(2) of B.B.C. Act. The fact of the case referred above is that the plaintiff had filed an application under section 15 of the Act. The trial court directed the defendant to pay the arrears as well as monthly rent. The defendant challenged the order passed under section 15 of the Act that no prima facie finding has been recorded of existence of relationship of tenant and land lord between the parties. The learned Single Judge while 6 allowing the application of the defendant-petitioner observed in para-31 that the Court while deciding the question as to whether the defendant should be directed to deposit the rent in terms of section 15 of the Act or not, must consider the said question and come to a tentative opinion with regard to the existence of relationship of land lord and tenant between the parties. In my view the case relied upon by the respondent supports the case of the defendant-petitioner more than the plaintiff. Thus from perusal of section 15(1) and 15(2) of the Act, it would be apparent that in case where a person has been arrayed as defendant-tenant and if he denies the relationship of land lord and tenant, then it would be incumbent upon Court to give at least a tentative opinion regarding existence of relationship of land lord and tenant between the parties before any order is passed for deposit of amount or arrears of rent. In the instant case I find that the learned trial court has not even recorded a tentative opinion with regard to existence of relationship of land lord and tenant between the plaintiff and the defendant. As such, the impugned order passed by the trial court is set aside and the matter is remitted back to him for fresh consideration in accordance with law. In the result, this writ application is allowed. KHAN (S.P. Singh,J)