IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5182 of 2011 GAYATRI UPADHAYA Versus THE STATE OF BIHAR & ORS ----------- 2. 28.03.2011 Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner as the landlord is aggrieved by the order of the SDO Sadar Motihari dated 4.1.2011 on an application preferred by her tenant for removing the locks put by her on the tenanted premises. Learned Counsel for the petitioner submits that the tenant had voluntarily handed over possession of the premises to the petitioner after which she had put her lock. The tenant and the tenancy has no relation with Partition Suit no. 179 of 1998. The tenant in his application to the District Magistrate has wrongly alleged that the petitioner had forcibly put a lock on the premises. The dispute between the tenant and the landlord is a purely civil dispute. The SDO has no jurisdiction in executive capacity to direct removal of the lock on the tenanted premises put by the petitioner. The only recourse available to the tenant, if he is aggrieved, is before the appropriate civil forum. The petitioner has not impleaded the tenant as a party respondent. Primarily the controversy whether the lock was put by the petitioner with consent or forcibly is vis a vis his tenant and not the SDO. In absence of necessary parties the writ application suffers from gross misjoinder of parties and the factual controversy cannot be resolved. It has been held in (2000) 9 SCC 94 State of Bihar v. Kameshwar Prasad Singh at paragraph 26 as follows :- “26.In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for 2 non-impleadment of the affected persons. Neither was any reason assigned by the writ petitioner nor did the Court feel it necessary to deal with this aspect of the matter. “ The petitioner claims that possession was handed over to her by the tenant after which she put her lock. No documentary evidence has been placed on record in support of the assertion of voluntarily handing over of possession to the petitioner. On the contrary the petitioner has brought on record documentary evidence filed by the tenant that he has been forcibly dispossessed. In a writ petition documents are primary evidence held as far back as in 1988) 4 SCC 534 Bharat Singh v. State of Haryana as has been observed at paragraph 13 as follows :- “13.In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit. ……… In absence of such necessary evidence having been brought on record by the petitioner it becomes a disputed question of fact whether possession was voluntarily given or forcibly taken. 3 If the possession was taken by the petitioner in a manner contrary to law, the Court cannot come to the aid of a person who has committed illegality, continued it and perpetuated the same. The Supreme Court in (2004) 2 SCC 83 at paragraph 10 has observed as follows:- “10. There is any reason also why the impugned judgment cannot be upheld. According to the lst respondent these transactions were to be unaccounted transactions. According to the lst respondent, all these amounts are paid in cash. If these are unaccounted transactions then they are illegal transductions. No court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case as these are unaccounted transductions, the Court could not have lent its hands and passed a decree. For these reasons also the suit was required to be dismissed.” The Court finds it difficult to interfere with the impugned order in writ jurisdiction from the records as it stands. The reluctance of the Court to interfere shall not prejudice the petitioner if she approaches the SDO with all relevant materials as discussed to satisfy her lawful possession and locking of the premises. Needless to state that the SDO shall then be required to hear the tenant also and then arrive at a reasoned conclusion with regard to his own jurisdiction or the lack of the same. The writ application is dismissed with the aforesaid observations. Snkumar/- (Navin Sinha,J.) 4