IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12576 of 2009 Suresh Prasad Sharma son of Late Jagarnath Prasad Sharma, resident of Mohalla Thatheri Bazar, Buxar, Buxar Ward No.8 of Buxar Nagar Parishad, P.S. Buxar(T), District Buxar……..Petitioner. Versus 1. The State of Bihar through the District Magistrate, Buxar. 2. Anil Kumar son of late Sajoo Prasad, resident of Mohalla Thatheri Bazar, Buxar, P.S. Buxar(T), District Buxar………………………………………….Respondents. For the petitioner : Mr. Jagdish Prasad, No.I, Advocate. For the State : G.A.-I For respondent no.2 : Mr. Dwivedy Surendra, Advocate. ----------- 15/ 01.09.2010 Heard learned counsel for the petitioner and learned counsel for the State as well as learned counsel for private respondent no.2. 2. This writ petition has been filed challenging order dated 10.07.2009 by which Additional District Judge-cum-Fast Track Court No.IV, Buxar allowed Miscellaneous Appeal No.14 of 2008 and set aside order dated 05.08.2008 passed by Munsif-II, Buxar in Title Eviction Suit No.02 of 2005. 3. The aforesaid suit was filed by the writ petitioner for eviction of respondent no.2 on the grounds of personal necessity of the suit premises as well as default in payment of rent by the said defendant-respondent no.2 and also for arrears of rent. The said suit was contested by defendant-respondent no.2, whereafter issues were framed and evidence on behalf of the plaintiff started. 4. In the meantime, defendant filed an application dated 10.04.2008 (Anneuxre-3) before the trial court claiming - 2 - that on that very date at 8.30 P.M. the plaintiff along with other armed persons forcibly ousted the petitioner claiming that there was a written agreement between the parties and threw away the articles of the defendant kept in the shop and locked the same. A reply was filed by the plaintiff on 11.04.2008 (Annexure-3/I) stating that the entire allegation was false and frivolous, as the defendant himself had willingly vacated the suit premises and handed over the same to the plaintiff. 5. Again an application dated 11.04.2008 (Anneuxre-4) was filed by the defendant under the provision of Order XXXIX Rule 1 & 2 read with section 151 of the Code of Civil Procedure for restoration of possession of the suit shop in favour of the defendant claiming that the plaintiff had taken away items worth Rs.96,600.00 purchased by defendant on 09.04.2008. The plaintiff filed his reply on 28.04.2008 (Annexure-4/I) completely denying the claim of defendant as frivolous and stating that no article at all was lying in the shop. 6. Learned Munsif-II, Buxar heard the matter in detail and vide order dated 05.08.2008 (Annexure-5) rejected the said application of the defendant holding that no material was available to support such assertions and the entire matter had to be considered at the time of final hearing when the evidences are available on record. Against the said order, defendant filed Miscellaneous Appeal No.14 of 2008 which was allowed by Additional District Judge-cum-Fast Track Court No.IV, Buxar vide order dated 10.07.2009 (Anneuxre-7) - 3 - holding that prima facie case, balance of convenience and irreparable loss were all in favour of the defendant, as the plaintiff had failed to produce any chit of paper or any evidence to show that the articles claimed by the defendant were not present at the time of taking possession of the suit shop by the plaintiff and that defendant had handed over possession of the suit premises to the plaintiff. Against the said order of the lower appellate court, the instant writ petition has been filed. 7. Learned counsel for the petitioner submits that the plaintiff has not forcibly ousted the defendant, rather the defendant himself willingly handed over possession of the suit premises to the plaintiff at his own accord and with mischievous intent had field the said application before the trial court. On the other hand, learned counsel for respondent no.2 submits that there is no reason why the defendant shall hand over possession of the suit premises during the pendency of the suit, specially when he has advanced a lot of money to the plaintiff. It is quite apparent from the pleadings that no F.I.R. was lodged by the defendant for any such alleged occurrence, rather much later only a complaint case was filed by the defendant. 8. From the averments made by learned counsel for the parties as well as materials on record, it is quite apparent that the defendant claimed that the plaintiff had forcibly ousted him on 10.04.2008 but there is no evidence at all to prove the - 4 - said contentions and hence such matter cannot be legally decided without taking any evidence either oral or documentary or both with respect to the respective claims of the parties. The lower appellate court has allowed the appeal only on the basis of assumption that the plaintiff had taken possession over the suit shop forcibly during the pendency of the suit and not on the basis of any material available on the record. On the said assumption, lower appellate court had presumed that there was a prima facie case, balance of convenience and irreparable loss in favour of the defendant. On further assumption, it was also presumed that the lease had been extended till 30th June 2009 failing to appreciate that the claim of plaintiff was also with respect to a decree for recovery of arrears of rent. 9. In the aforesaid facts and circumstances, impugned order of the lower appellate court dated 10.07.2009 (Annexure-7) cannot be held to be a legal and proper order and hence it is quashed. Accordingly, this writ petition is allowed with a direction to the trial court to consider the issue of dispossession raised by defendant along with the question of compensation, etc. while finally deciding the suit on the basis of the issues already framed. It goes without saying that both the parties will be at liberty to place their evidence, both oral and documentary in support of their respective claims with regard to the alleged dispossession and the trial court shall decide the case in accordance with law considering all materials on record - 5 - expeditiously preferably within six months from the date of receipt/production of a copy of this order. 10. Both the parties through their respective counsel undertake before this court that they will not take any undue adjournment and shall assist the court in early disposal of the suit. Harish (S.N. Hussain, J.)