IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.928 of 2007 LALIT LALL, SON OF LATE MAHADEO LALL, RESIDENT OF HOUSE NO.19, MONTESSERI SCHOOL LANE, BORING ROAD, P.S. SHRIKRISHNAPURI, DISTRICT-PATNA. ………………………………………………PLAINTIFF/PETITIONER. Versus SANJAY KUMAR , SON OF LATE NARESH PD. SINGH, RESIDING IN FLAT NO.305, VISHNU PALACE, BORING CANAL ROAD, P.S. BUDHA COLONY, DISTRICT-PATNA. ………………………………………DEFENDANT/OPPOSITE PARTY. ----------- For the Petitioner : M/s. Ashok Kr. Sinha, Senior Advocate and Amrendra Kumar Sinha No.I, Advocate. For Opposite Party : None. ----------- O R D E R The plaintiff-landlord of Eviction Suit No.24 of 2006 has preferred this revision against the order dated 28.3.2007 passed therein by the learned Subordinate Judge-I, Patna, whereby notwithstanding the leave having been granted to the defendant- opposite party at a later date subject to payment of cost of Rs.500/- his written statement at the first instance even prior to the filing of an affidavit seeking leave to contest the suit accepted the written statement and dismiss the petition of the plaintiff-petitioner dated 16.1.2007 under Section 14(4) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as “the B.B.C. Act”). The plaintiff-petitioner filed Eviction Suit No.24 of 2006 against the defendant-opposite party on the composite ground of - 2 - personal necessities and termination of the period of lease of shop No.17 by invoking the special procedure laid down in Section 14 of the B.B.C. Act. Briefly stated, the case of the plaintiff is that Shop No.17 having an area of 192 sq. ft. in Vishnu Palace was leased out to the defendant-opposite party under an agreement dated 1.9.2003 for a fixed period of 11 months commencing from 1.9.2003 and terminating on 31.8.2004 on a monthly rental of Rs.3000/- besides electric charges payable to the Electric Supply Department and as per the terms and conditions of the lease in proof of deposit of the electric charges the defendant-opposite party was required to furnish paid bills to the plaintiff-petitioner. Further case of the plaintiff was that the said lease premises was reasonably and in good faith required by the plaintiff- petitioner for opening an office for the advertising and publicity business of his second son, the said shop being most suitable for running of the business aforesaid and the personal requirement of the plaintiff-petitioner could not be satisfied by partial eviction of the shop premises. It is said that the defendant-tenant neither requested for extension of the period of lease nor vacated the suit premises on expiry of the lease period. It is submitted that the defendant-opposite party entered his appearance in the suit on 8.12.2006 and filed a petition for time for filing his written statement which was allowed and on 21.12.2006, the defendant-opposite party filed his written statement which was accepted by the court below. - 3 - The case of the defendant-opposite party was that he was inducted as a tenant in the suit premises on the basis of a kirayanama agreement dated 1.9.2003 and had been paying rent regularly even after the expiry of the period of lease to the plaintiff-petitioner but he in order to harass him had brought the said suit and that no notice had been given by the plaintiff to him to vacate the suit premises. It appears that on 16.1.2006 the plaintiff filed a petition under Section 14(4) of the B.B.C. Act stating therein that the defendant-opposite party not having filed an affidavit to obtain leave of the court to contest the suit disclosing such facts as would disentitle him from obtaining an order of eviction on the ground specified in clauses (c) and (e) of sub section (1) of Section 11 of the B.B. C. Act, his written statement could not be accepted and orders of eviction of the defendant-tenant from the suit premises be passed on the ground stated in the plaint as per the provisions of sub Section (4) of Section 14 of the B.B.C. Act. The defendant-tenant filed a rejoinder on 25.1.2007, inter alia stating that no objection had ever been raised by the plaintiff to the grant of time and acceptance of the written statement and on 12.2.2007 a separate petition was filed by the defendant with a prayer to grant leave to contest the suit and also for filing a written statement. The plaintiff filed a rejoinder to the said petition on 13.2.007 inter alia praying therein that omission on the part of the defendant to file an affidavit seeking leave to contest the suit on the very first day of appearance was in utter violation of the mandatory provision of sub - 4 - section (4) of Section 14 of the B.B.C. Act. The trial court after hearing the parties to the suit by the impugned order allowed the defendant to contest the suit on the grounds mentioned in the subsequent petition dated 12.2.2007 and further accepted the written statement filed prior to the petition seeking leave to contest the suit. Although the defendant-opposite party was duly served with notice, he has chosen not to appear and contest the revision. Sub section (4) of Section 14 of the B.B.C. Act reads as follows: “The tenant on whom summons is duly served(whether by ordinary mail or by registered post) shall not contest the prayer for eviction from the premises unless he files an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided; and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid.” This sub section has been interpreted by a catena of decisions and the unanimous view is that in an Eviction Suit on the ground of personal necessity or expiry of period of tenancy in view of the special procedure which provides for trial of suit for eviction on ground of personal necessity or expiry of the period of tenancy the requirement of taking leave as provided in sub section (4) of Section - 5 - 14 of the B.B.C. Act is mandatory and in its absence neither the written statement can be accepted nor the tenant can be allowed to contest the eviction suit and that the requirement of the defendant to file an affidavit disclosing the grounds of contest and obtain leave of the court has to be on the date of appearance itself. The provisions of sub section (4) of Section 14 of the B.B.C. Act being mandatory its non compliance is fatal and in the event of non compliance of requirement of Section 14 of the B.B.C. Act, the Eviction Suit has to be decided in terms of sub section (4) of Section 14 of the B.B.C. Act. In this connection, reference may be made to the cases of Manik Chand Roy Vs. Raghunandan Prasad, reported in 1993(2) PLJR 215, Karabin Baptist Vs. Gauri Shankar Prasad, reported in 1983(1) PLJR 495, Vijay Prasad Vs. Md. Nesar Ahamd, reported in 1991(2) PLJR 254, Umesh Ram Vs. Shatrughan Prasad (1987 PLJR 62), Delhi Cloth and General Mills Vs. Suraj Kunwar (1986 PLJR 982). In view of the catena of decisions of this Court making it mandatory for the defendant to file an affidavit seeking permission of the Court to contest the suit on the grounds disclosed and the defendant not having complied with the mandatory provisions the impugned order is set aside and the revision is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 1st day of July, 2009. Pradeep Srivastava/A.F.R.