Patna High Court
Keshov Prasad Saw vs Madhu Devi on 25 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.137 of 2024
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Keshov Prasad Saw Son of Late Kapoor Chand Saw through Rajesh Kumar
Saw, son of Keshov Prasad Saw, Attorney and resident of Mohalla
Chawartakiya Road, P.O. and P.S. - Sasaram, District- Rohtas at present
residing at 92, Dr. Lal Mohan Bhattacharjee Road, P.S.- Entally, District -
Kolkata.
... ... Petitioner
Versus
Madhu Devi Daughter of Late Ramendra Prasad Resident of Mohalla-
Chawartakiya Road, P.O. and P.S. - Sasaram, District- Rohtas.
... ... Respondent
======================================================
Appearance :
For the Petitioner/s : Mr. Sourendra Pandey, Advocate
Mr. Nalin Vilochan Tiwary, Advocate
For the Respondent/s : Mr. Parth Gaurav, Advocate
Mr. Aditya Pratap, Advocate
Mr. Rahul Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 25-02-2025
Heard the learned counsels for the respective parties.
02. The petitioner is aggrieved by the order dated
18.12.2023
passed in Eviction Suit No. 07 of 2015 by the
learned Munsif-I, Sasaram, Rohtas, whereby and whereunder
the learned trial court has allowed the application dated
12.12.2023 filed by the respondent for recalling the petitioner's
witnesses for cross-examination.
03. Learned counsel for the petitioner submits that the
petitioner is the plaintiff and respondent is the defendant before
the learned trial court and the petitioner has filed the eviction
suit against the defendant/respondent in which, on 27.10.2016, a
petition under Section Section 15(1) of the Bihar Buildings
Patna High Court C.Misc. No.137 of 2024 dt.25-02-2025
(Lease, Rent and Eviction) Control Act, 1947 (for short 'the
BBC Act') has been filed by the petitioner seeking direction to
the respondent to deposit the rent of each month and also to pay
the arrears of rent and further to strike off the defence of the
defendant in case of non-payment of rent. The learned trial court
did not pass any order on the said application and rather went on
to order that application would be decided on completion of the
suit and it was not proper to direct for payment during the midst
of the suit and dismissed the petition dated 27.10.2016.
Aggrieved by the said order, the petitioner approached this
Court in Civil Misc. No. 1034 of 2018, which was allowed vide
order dated 31.08.2023 passed by a Co-ordinate Bench and the
respondent was directed to deposit the entire amount within 15
days from the date of communication of the order with further
direction to the trial court to dispose of the eviction suit within
three and half months from the date of order and send a
compliance report thereof. Pursuant to the orders of this Court,
the court below proceeded ahead and directed the respondent to
deposit the entire rent but the respondent did not deposit the
same and by order dated 25.09.2023, the defence of the
respondent was struck off. Subsequently, on 05.10.2023,
13.10.2023 and 06.11.2023, respectively, two witnesses on
Patna High Court C.Misc. No.137 of 2024 dt.25-02-2025
behalf of the petitioner were examined and discharged.
Thereafter, on 21.11.2023, the respondent filed an application
before the learned trial court for allowing her to deposit the rent
without disclosing any amount therein and the said application
was rejected. Another application was filed by the respondent on
24.11.2023 stating therein that she was ready to deposit Rs.
18,000/- as arrears of rent. The said application was opposed by
the petitioner who pointed out that respondent did not deposit
the rent in terms of the orders of this Court passed in Civil Misc.
No. 1034 of 2018. Subsequent, on 02.12.2023, the evidence of
third witness of the petitioner was recorded. On 12.12.2023, on
the request of the petitioner, after closure of evidence on behalf
of the petitioner, the respondent was called upon for producing
her witnesses. On the same day, i.e., on 12.12.2023, an
application was filed on behalf of the respondent praying therein
to recall the witnesses of the petitioner for the purposes of their
cross-examination. A rejoinder to the said application was filed
by the petitioner opposing the contention of the respondent.
However, the learned trial court, vide impugned order dated
18.12.2023, allowed the petition dated 12.12.2023 filed by the
respondent on deposit of cost of Rs. 400/- per witness.
04. Learned counsel for the petitioner further submits
Patna High Court C.Misc. No.137 of 2024 dt.25-02-2025
that the impugned order is completely against the law as after
striking off the defence of the respondent, she could not be
allowed to cross-examine the witnesses of the petitioner.
Learned counsel referring to Section 15 of the BBC Act
submits that the provision specifically mentions that the defence
against ejectment to be struck off and the tenant to be placed in
the same position as if he had not defended the claim to
ejectment and further the Court shall not allow the tenant to
cross-examine the landlord's witness. Therefore, the impugned
order is against the mandate of law as enshrined under the
aforesaid provision which enables the landlord to have some
respite. Learned counsel further submits that the authority relied
on by the learned trial court in the case of Bimal Chand Jain
Vs. Sri Gopal Agarwal, reported in 1982 SCR(1) 124, is not
relevant in the facts of the present case as the said decision was
rendered in a case in which Order XV Rule 5 of the Code of
Civil Procedure was matter in issue and it has been provided by
the Act of UP Government that before striking off the defence,
the court may consider any representation made in that behalf
by the defendant but there is no comparable provision under the
BBC Act. Thus, the learned counsel submits that the impugned
order is not sustainable and the same be set aside.
Patna High Court C.Misc. No.137 of 2024 dt.25-02-2025
05. On the other hand, learned counsel appearing on
behalf of respondent very fairly submits that Section 15 of the
BBC Act makes it clear that if defence of tenant has been struck
off, he could not be allowed to cross-examine the witnesses of
the otherside. However, the respondent could have been allowed
to examine only with regard to facts mentioned in the
examination-in-chief and further cross-examination outside the
examination-in-chief could not be allowed and to that limited
extent, the respondent may be allowed to cross-examine the
witnesses.
06. I have given my thoughtful consideration to the
rival submission of the parties and the specific provision of law,
which is Section 15 of the BBC Act. Section 15 of the BBC Act
reads as under:
"15. Deposit of rent by tenants in suits for
ejectment.
"(1) If, in a suit for recovery of possession of any
building the tenant contests the suit as regards
claim for ejectment, landlord 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 and also subject to
the law of limitation, the arrears of rent, if any,
and the Court after giving opportunity to the
parties to be heard, may make any order for
deposit of rent month by month at such rate as
may be determined and the arrears of rent, both
before [or] [Substituted for 'and' by Act 4 of
Patna High Court C.Misc. No.137 of 2024 dt.25-02-2025
1994.] after the institution of the suit, if any, and
on failure of the tenant to deposit the arrears of
rent within fifteen days of the date of order or the
rent at such rate for any month by the fifteenth
day of the next following month; the Court shall
order the defence against ejectment to be struck
off and the tenant to be placed in the same
position as if he had not defended the claim to
ejectment and further the Court shall not allow
the tenant to cross-examine the landlord's
witnesses.
(2) If in any proceeding referred to in sub-
section(1) 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 no person shall be entitled to
withdraw the amount in deposit until the Court
decides the dispute and makes an order for
payment of the same.
(3) If the Court is satisfied that any dispute
referred to in sub-section (2) has been raised by
a tenant for reasons which are false or frivolous
the Court may order the defence against the
eviction to be struck off and proceed with the
hearing of the suit as laid down in sub-section
(1)."
07. The aforesaid provision makes it very clear that if
an order is passed directing the tenant to deposit the rent month
by month and the arrears of rent and on failure of tenant to
deposit the arrears of rent within fifteen days of the date of order
or the rent at such rate for any month by the fifteenth day of the
next following month; the Court shall order the defence against
ejectment to be struck off. Further, it provides that the tenant to
Patna High Court C.Misc. No.137 of 2024 dt.25-02-2025
be placed in the same position as if he had not defended the
claim to ejectment and further the Court shall not allow the
tenant to cross-examine the landlord's witnesses.
08. Thus, in the light of specific provision, the learned
trial court committed error of jurisdiction and passed an order
which could not be sustained. As already pointed out by the
learned counsel for the petitioner, the authority cited by the
learned trial court in the case of Bimal Chand Jain (supra) is
not applicable in the present facts of the case. Hence, the
impugned order dated 18.12.2023 passed by the learned trial
court is set aside.
09. Accordingly, the present petition stands allowed.
10. The learned trial court is directed to proceed in the
matter keeping in the back of mind the order dated 31.08.2023
passed by the coordinate Bench in Civil Misc. No. 1034 of 2018
for early disposal of the suit.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 05.03.2025
Transmission Date NA
