Patna High Court
Dr. Birendra Prasad Saha vs Ghanshyam Kumar Yadav on 8 August, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1638 of 2017
======================================================
Dr. Birendra Prasad Saha son of Late Surya Narayan Saha, Resident of
Village- Udakishunganj, P.S.- Udakishunganj, District- Madhepura.
... ... Petitioner/s
Versus
Ghanshyam Kumar Yadav Son of Sri Surendra Prasad Yadav, Resident of
Village- Mahesua, P.S.- Udakishunganj, District- Madhepura, Presently
residing at Village- Udakishunganj, P.S.- Udakishunganj, District-
Madhepura.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Arjun Kumar, Advocate
Mr. Alok Kumar, Advocate
For the Respondent/s : Mr. Sanjeev Kumar Mishra, Sr. Advocate
Mr. Manas Rajdeep, Advocate
Mr. Shubham Kumar Upadhayay, Advocate
Ms. Adya Panday, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 08-08-2025
Heard both the parties.
2. The present civil miscellaneous petition has been
filed seeking the following reliefs:-
"(i) For the quashing/setting aside the
order dated 19.08.2017 passed in Eviction
Suit No. 41 of 2015 by learned Munsif,
Udakishunganj. District whereby
whereunder the learned Munsif,
Udakishunganj has been Madhepura and
pleased to reject the petition dated
18.08.2016
under Section 14(4) of Bihar
Building (Lease, Rent and Eviction)
Control Act, 1982 (the Act hereinafter for
the sake of brevity) filed by the
plaintiff/petitioner.
(ii) For the direction that the written
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
statement of the respondent cannot be
accepted in the present sets of facts and for
the further direction to proceed the case as
per the Special Procedure for disposal of
cases for eviction on the ground of bona
fide requirement and expiry of lease.
(iii) For the issuance of any other
appropriate relief/(s)/order/(s)/direction/
(s) which your Lordships may deem fit in
the present facts and circumstances of the
case."
3. Briefly stated facts of the case, culled out from the
record, are that the petitioner filed Eviction Suit No. 41 of 2015
on 17.06.2015 before the court of learned Civil Judge, Junior
Division, Udakishunganj, Madhepura under Section 11(1)(c)
and 11(1)(e) of the Bihar Buildings (Lease, Rent & Eviction)
Control Act, 1982 (for brevity, hereinafter "the Act") against the
respondent on the ground of personal necessity and expiry of
lease.
4. The plaintiff/petitioner claimed that on request of
the defendant/respondent, he let out the suit property to him on
monthly rent from 05.06.2005 and the lease was extended from
time to time. The petitioner sent a legal notice on 03.08.2013
intimating the respondent to vacate the suit premises. Another
notice was given on 29.02.2014. A Panchayati was also held but
the respondent refused to vacate the premises and the petitioner
was compelled to file the suit for eviction on the ground of
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
personal necessity as well as expiry of lease. Eviction Suit No.
41 of 2015 was admitted and summons were issued to the
respondent vide order dated 10.08.2015 and the respondent
appeared in the suit. After his appearance, the respondent filed
his written statement on 25.07.2016 contesting the claim of the
petitioner. The respondent further filed a petition dated
04.08.2016 with prayer to grant him leave to deposit the rent of
the suit premises at the rate of Rs.1100/- per month in the court
till pendency of the suit. Since the respondent did not file any
affidavit stating the grounds on which he wanted to contest the
suit and did not obtain any leave to contest the case, the
petitioner filed a petition dated 18.08.2016 with a prayer to
reject the written statement and to proceed in the case as per
special procedure for disposal of the case for eviction on the
ground of bona fide requirement. The respondent filed his
rejoinder on 28.02.2017. The learned trial court heard both the
parties and rejected the petition dated 18.08.2016 filed on behalf
of the petitioner and ordered for acceptance of written
statement. This order dated 19.08.2017 is under challenge
before this Court.
5. Learned counsel for the petitioner submits that the
impugned order is not sustainable as it is against the mandate of
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
law. The petitioner has filed the eviction suit under Section
11(1)(c) and (1)(e) of the Act. Section 14(1) of the Act provides
that every suit by a landlord for the recovery of possession of
any premises on the ground specified in clause (c) or (e) of sub-
section (1) of section 11 shall be dealt with in accordance with
the procedure specified in Section 14. Learned counsel further
submits that further Section 14 sub-section (4) provides that The
tenant on whom summons is duly served 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 but no such ground were submitted
by the respondent and no such leave was obtained by the
respondent. Learned counsel further submits that as the
respondent failed to obtain the leave, the averment of the
petitioner in the suit for eviction ought to be considered as
admitted by the tenant/respondent and therefore petitioner shall
be entitled to an order for eviction on the ground taken in the
plaint. But this provision of law has been ignored by the learned
trial court which wrongly held that summary procedure would
not be followed in the eviction suit for the reason that prayer of
the plaintiff was based on consolidated ground. Learned counsel
further submits that seeking relief under Section 11(1)(c) and
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
11(1)(e) together cannot be said to be seeking relief on
consolidated ground to take out the case of the petitioner from
purview of Section 14 of the Act. Thus, the learned trial court
has committed a gross error of law while passing the impugned
order discarding the settled principles of law that summary
procedure under Section 14 of the Act is to be followed if the
suit has been instituted under Section 11(1)(c) and 11(1)(e) of
the Act. When Section 14(1) itself makes it clear that the suit
brought for recovery of possession of premises on the ground
specified in clause (c) or (e) of sub-section (1) of Section 11
shall be dealt with in accordance with the procedure specified in
Section 14, there was no scope for the learned trial court to take
a different view. Learned counsel further submits that seeking
relief of eviction on the aforesaid two grounds cannot be said to
be consolidation of prayers.
Learned counsel referred to a decision of the learned
Single Judge of this Court (Ranchi Bench) in the case of
Reyazul Haque vs. Most. Maimun Khatoon and Anr. reported
in 1985 PLJR 490 wherein it has been held that a landlord can
avail the benefit of Section 14 of the Act only if he confines his
claim to the above noted two permissible grounds i.e. under
Section 11(1)(c) and 11(1)(e) of the Act. In case he elects to add
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
grounds other than those specified in clauses (c) and (e) of sub-
section (1) of Section 11 of the Act, he foregoes the privilege of
summary procedure prescribed under Section 14 of the Act.
Thus, the learned counsel submits that it is a fit case where the
written statement of the respondent should be rejected and the
eviction suit be decreed in the light of deemed admission of the
respondent.
6. Learned senior counsel appearing on behalf of the
respondent vehemently contends that there is no infirmity in the
impugned order and the same is proper and correct. The learned
senior counsel, at the outset, submits that he does not agree with
the reasoning adopted by the learned trial court while passing
the impugned order that the consolidation of prayers in eviction
suit of the petitioner would take it out from the purview of
summary procedure prescribed under Section 14 of the Act. But
the subsequent events after filing of the eviction suit show that
the matter proceeded under a general procedure and not under
special procedure of Section 14 of the Act. The learned senior
counsel submitted that Section 14(7) prescribes that
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (hereinafter "the Code") or any other law, the
Court while hearing a suit under this section shall follow the
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
practice and procedure of a Court of Small Causes including the
recording of evidence. Learned senior counsel further submits
that Section 17 in the Provincial Small Cause Courts Act, 1887
provides that the procedure prescribed in the Code, shall, save
insofar as is otherwise provided by that Code or by this Act, be
the procedure followed in a Court of Small Causes in all suits
cognizable by it and in all proceedings arising out of such suits.
Learned senior counsel further submits that though Section
14(7) of the Act provides for practice and procedure of Court of
small causes in the proceeding under Section 14 of the Act, the
Small Causes Act, in turn, provides for the same procedure of
Code. Furthermore, Order 37 Rule 2 Sub-Rule (2) of the Code
provides that summons of the suit shall be in Form No. 4 in
Appendix B or in such other form as may, from time to time, be
prescribed. Learned Senior Counsel submits that Order 37
provides for summary procedure and if summons of the eviction
suit filed by the petitioner were not issued in proper format, the
same would result in adoption of general procedure by the
learned trial court and not in a summary procedure.
In this regard, the learned senior counsel referred to a
Division Bench decision of this Court in the matter of Santosh
Singh And Ors. vs Ram Chandra Sah And Ors., reported in
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
(1992) 2 PLJR 91 wherein learned Division Bench held that the
procedure provided under the Code of Civil Procedure will
apply before the Court while hearing the suit in accordance with
the provisions of Section 14 of the Act. On the aspect of the
procedure under Order 37 of the Code for issuance of summon,
the learned Senior Counsel referred to the decision of High
Court of Madhya Pradesh in the case of Man Singh Vs.
Ranveer Singh, reported in 2021 2 MPWN 10.
The learned senior counsel thus submits that as no
summons have been issued under Form 4 in Appendix B of the
Code, the respondent was not bound to state the grounds on
which he sought to make the contest and to obtain leave from
the Court. Therefore, for non-compliance of the procedure
regarding issuance of summons for summary procedure, the
proceeding before the learned trial court would run as a general
proceeding and not a summary proceeding under Section 14 of
the Act. Thus, the learned senior counsel submits that the
reasoning adopted by the learned trial court might not be correct
but considering the aforesaid situation about non-compliance of
issuance of summons for summary proceeding, the effect would
be the same and the learned trial court rightly rejected the
application of the petitioner and rightly allowed the written
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
statement of the respondent to be taken on record after accepting
the same.
7. By way of reply, the learned counsel appearing on
behalf of the petitioner submits that there is no requirement of
issuance of summons under any special format or under Form 4
of Appendix B of the Code and the issue stands settled by a
Division Bench decision of this Court in the case of M/s Bihar
Alloy Steels Ltd. vs Hari Shanker Worah (Properties) Ltd &
Anr., reported in 1987 PLJR 868 which has held that a
provision like one in Sub-section (2) of Section 14 of the Act is
not mandatory and if no form has been prescribed, still a notice
served in a suit by a landlord for the recovery of possession of
any premises on the ground specified in Clauses (c) or (e) of
Sub-section (1) of Section 11 of the Act, which is tried in
accordance with the special procedure, no error of jurisdiction is
committed. In the said case an issue was raised that based on the
language used in Section 14 (2) of the Act, before a suit for the
recovery of possession of any premises on the ground specified
in Clause (c) or (d) of Sub-section (1) of Section 11 of the Act,
be taken up for hearing in accordance with the procedure in
Section 14 of the Act, summons must be issued in the prescribed
form in every such suit. Further contention has been raised that
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
since no rule has been prescribed, not a notice contemplated in
Sub-section (2) of Section 14 but a notice of regular suit in
accordance with the Code had been issued. In such a situation,
the trial on the facts of the case was not in accordance with the
special procedure prescribed in Section 14 of the Act but in
accordance with procedure in any other suit. However, the
Hon'ble Division Bench of this Court rejected all the
contentions. Thus, learned counsel submits that the issue thus
stands settled and there is no merit in the submission of the
learned senior counsel for the respondent.
8. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
9. The learned trial court rejected the petition dated
18.08.2016 filed by the petitioner on the ground that eviction
suit has been instituted on consolidated ground of Section 11 (1)
(c) and Section 11(1)(e) of the Act and as the eviction suit has
not been filed on any single ground, summary procedure under
Section 14 of the Act would not be applicable. I find such
finding to be absolutely perverse.
Section 14 (1) of the Act reads as under:-
"(1)Every suit by a landlord for the
recovery of possession of any premises on
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
the ground specified in clause (c) or (e) of
sub-section (1) of section 11 shall be dealt
with in accordance with the procedure
specified in this section."
When the Legislature has provided that every suit
filed on the ground specified in clause (c) or (e) of sub-section
(1) of section 11 shall be dealt with in accordance with the
procedure specified under Section 14 of the Act, merely because
the provision mentions clause (c) or clause (e) of sub-section
(1) of Section 11 and the suit has been filed under both the
clauses, it cannot be said to be a composite suit based on
consolidated grounds. Now, object of Section 14 of the Act is to
give expeditious relief to the landlords seeking recovery of
possession of a house on the ground of personal necessity and
such landlords have been placed in a separate class. Thus
Legislature has simplified the procedure with main object of
avoiding delays in disposal of such cases. Therefore, the learned
trial court completely missed the point, purpose and intent
behind enactment of the provision under Section 11 (1)(c) and
Section 11(1)(e) of the Act and prescription of special procedure
under Section 14 of the Act. Therefore, joining these two
grounds together would not affect the nature of such suit to be
dealt with under the special procedure of Section 14 of the Act.
10. So far as contention of learned Senior Court about
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
applicability of Section 37 and format of Form 4 of Appendix B
of the Code is concerned, such submission is without any basis.
Order 37 Rule 1 of the Code reads as under :-
"1. Courts and classes of suits to which the
Order is to apply.
(1)This Order shall apply to the following
Court, namely-
(a)High Courts, City Civil Courts and
Courts of Small Causes; and
(b)other Courts;
Provided that in respect of the Courts
referred to in clause(b), the High Court
may, by notification in the Official Gazette,
restrict the operation of this Order only to
such categories of suits as it deems proper,
and may also, from time to time, as the
circumstances of the case may require, by
subsequent notification in the Official
Gazette, further restrict, enlarge or vary,
the categories of suits to be brought under
the operation of this Order as it deems
proper.
(2)Subject to the provisions of sub-rule (1)
the Order applies to the following classes
of suits, namely-
(a)suits upon bills of exchange, hundies
and promissory notes;
(b)suits in which the plaintiff seeks only to
recover a debt or liquidated demand in
money payable by the defendant, with or
without interest, arising,-
(i)on a written contract, or
(ii)on an enactment, where the sum sought
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
to be recovered is a fixed sum of money or
in the nature of a debt other than a
penalty; or
(iii)on a guarantee, where the claim
against the principal is in respect of a debt
or liquidated demand only."
Bare reading of Order 37 Rule 1 Sub-Rule (2) makes
it very clear that this order applies only to the above noted
classes of suits, i.e., suits upon bills of exchange, hundies and
promissory notes; suits in which the plaintiff seeks only to
recover a debt or liquidated demand in money payable by the
defendant, with or without interest, on a written contract, or
under certain conditions. Evidently, the suit of the petitioner
would not fall within any of the above noted categories. If this is
the situation, then there is no occasion for application of the
provision of Order 37 Rule 2 Sub-Rule (2) of the Code.
Moreover, there has been no enactment providing that the
summons for service on defendant/tenants under Section 14
Sub-Section (2) of the Act shall be in the format prescribed
under Order 37 Rule 2 Sub-Rule (2) of the Code.
11. Section 14 (2) of the Act provides as under:-
"(2)The Court shall issue summons in the
prescribed form in every suit referred in
sub-section (1) without delay. "
The contention of the learned senior counsel of the
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
respondent is on the point that in a suit filed for recovery of
possession of any premises on the grounds specified in clause
(c) or (e) of Sub-Section 1 of Section 11 of the Act before it is
taken up for hearing in accordance with procedure under
Section 14 of the Act, summons must be issued in the prescribed
form as provided under Section 14(2) of the Act. This issue has
been considered by a Division Bench of this Court (Ranchi
Bench) in the case of M/s Bihar Alloy Steels Ltd. (supra) and
this Court observed that the word 'prescribed' has been defined
in Section 2(g) of the Act to mean, 'prescribed by rule'. The
contention was raised that since no rule has been prescribed, not
a notice contemplated in Sub-Section (2) of Section 14, but a
notice of regular suit of the Code had been issued and under
these circumstances, suit would be like any other suit and the
trial would follow general procedure of normal suit and not
special procedure prescribed in Section 14 of the Act. The
Hon'ble Division Bench settled the matter with observation that
that a provision like one in Sub-section (2) of Section 14 of the
Act is not mandatory and if no form has been prescribed, still a
notice served in a suit by a landlord for the recovery of
possession of any premises on the ground specified in Clauses
(c) or (e) of Sub-section (1) of Section 11 of the Act, which is
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
tried in accordance with the special procedure, no error of
jurisdiction is committed. The Hon'ble Division Bench affirmed
the view taken earlier in the case of Sardar Rajendra Singh Vs.
Sardar Bahadur Singh, (1984 B.L.T. 177: 1984 PLJR 525)
wherein it has been held that sub-section (2) of section 14 of the
Act which has said that the Court would issue summons in the
prescribed form in every suit referred in sub-section (1) thereof
could be satisfied if on service of notice and appearance, the
party concerned submitted to the jurisdiction and the special
procedure for disposal of cases for eviction on the ground of
bona fide requirement or in other words the ground specified in
clause (c) or (e) of sub-section (1) of section 11 of the Act.
Therefore, this issue is no more res integra and whatever
submission has been made on behalf of respondent is devoid of
merit in the light of Division Bench decision of M/s Bihar Alloy
Steels Ltd. (supra). Further the authorities cited by learned
senior counsel for the respondent are completely out of context
and not pertinent for deciding the present matter.
12. Therefore in the light of discussion made
hereinbefore, I have no hesitation in holding that the learned
trial court committed a gross error of jurisdiction in passing the
impugned order dated 19.08.2017 and hence, the said order is
Patna High Court C.Misc. No.1638 of 2017 dt.08-08-2025
set aside and the application dated 18.08.2016 filed by the
petitioner is allowed.
13. Accordingly, the present civil miscellaneous
petition stands allowed.
(Arun Kumar Jha, J)
Anuradha/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 11.08.2025
Transmission Date N/A
