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PATNA HIGH COURT
S.J.Hyder, J.
Rajendra Singh
Versus
Bahadur Singh
Civil Revision No. 246 of 1983 ;
Decided On : FEBRUARY 2, 1984
BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1982 - SECTIONS 13 AND 14 - INTERPRETATION AND APPLICABILITY - PROCEDURE FOR EVICTION SUITS - MANDATORY OR DIRECTORY PROVISIONS - RULE MAKING POWER OF STATE GOVERNMENT - DOCTRINE OF SUSPENDED ANIMATION - CASUS OMISSUS.
Fact of the Case:
The petitioners, tenants of a building, challenged the applicability of Sections 13 and 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (the Act), arguing that these provisions were not operative due to the absence of a prescribed form of summons for eviction suits under Section 14(2) of the Act.
Finding of the Court:
The court held that Sections 13 and 14 of the Act were not in the nature of an exception to the general law governing tenancy and were not subject to strict construction. The court further held that the rule-making power conferred on the State Government under Section 33 of the Act could not be used to suspend the operation of any provision of the Act. The court also rejected the argument that the absence of a prescribed form of summons rendered Section 14(2) of the Act mandatory and inapplicable, holding that the provision was directory and that the necessary information could be conveyed to the defendant in any suitable manner.
Issues: 1. Whether Sections 13 and 14 of the Act were operative despite the absence of a prescribed form of summons under Section 14(2) of the Act. 2. Whether Section 14(2) of the Act was mandatory or directory.
Ratio Decidendi: 1. The court held that Sections 13 and 14 of the Act were not in the nature of an exception to the general law governing tenancy and were not subject to strict construction. The court further held that the rule-making power conferred on the State Government under Section 33 of the Act could not be used to suspend the operation of any provision of the Act. 2. The court held that Section 14(2) of the Act was directory and that the necessary information could be conveyed to the defendant in any suitable manner. The court reasoned that the object of Section 14(2) was to intimate the defendant that the suit was one in which the new procedure would be followed and that nothing more could be read into the prescription that a form of summons be laid down in the Rules.
Final Decision: The court dismissed the revision application, holding that Sections 13 and 14 of the Act were operative and that the trial court was right in rejecting the application of the petitioners to set aside the ex parte order.
1. The only question, which has been canvassed at the bar in support of this revision, is that Ss.13 and 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, hereinafter referred to as the Act are not operative. Special procedure, prescribed under sec. 14 of the Act, for the disposal of suits for eviction on the grounds referred to in cls. (c) and (e) of sub-sec. (1) of S.11 of the Act, it is contended, should not have been invoked by the court below. In order to appreciate the submissions urged on behalf of the applicants, the facts of the case and the salient provisions of law bearing on the questions may be noticed.
2. The applicants are the tenants of a building of which plaintiff-opposite party is the landlord. Plaintiff opposite party filed the suit giving rise to this revision for ejectment of defendants-applicants in the court of Munsif, Hazaribagh. Two grounds were disclosed in the statement of claim filed by plaintiff-opposite party. In the first place it was stated by him that the building in dispute had been let out by him to defendant-applicants for a fixed period of five years which expired on Feb. 17, 1983 and, as such, plaintiff-opposite party was entitled to obtain possession of the building in dispute from defendants-applicants. It was next stated by him that the building was bona fide required by plaintiff-opposite party for his personal use and occupation as he intended to start a business of his own in the said building. The Munsif, Hazaribagh, issued summons by registered post to defendants-applicants fixing Mar. 9, 1983 for the appearance of defendants-applicants. The envelope containing the summons was returned with an endorsement refused, whereupon the Munsif, by his order dt. Mar. 9th 1983, directed plaintiff-opposite party to take further steps for summons by registered post. Summonses through registered post were again issued to defendants-applicants and the same were returned with the same endorsement. This time, the Munsif directed that the case should be heard ex parte on Mar. 24, 1983. This case was not taken up for hearing on that date but was adjourned for April 8, 1983. On that date, defendants-applicants appeared before the court through a counsel and sought time to file counter to the claim petition of plaintiff-opposite party. The Munsif accepted the motion and allowed time to defendants-applicants to file a rejoinder up to April 16, 1983. On that date again, defendants-applicants sought time to file reply. Their request was allowed and they were granted time up to May 10, 1983. On May 24, 1983, defendants-applicants made an application for setting aside the order for ex parte hearing dt. Mar. 18, 1983. Arguments of defendants-applicants were heard on July 23, 1983 and the court, passed the impugned order. The Munsif was of the view that since defendants-applicants had not complied with the mandatory provisions contained in sub-sec. (4) of S.14 of the Act, the ex parte order could not be set aside.
3. In the year 1947, the State Legislature passed an Act regulating the eviction of the tenants from buildings and other incidental matters. This Act was of temporary duration and was continued by successive notifications until it lapsed on Mar. 31, 1976. Thereafter the State Legislature passed a fresh Act concerning regulation of eviction of tenants from buildings and other connected matters. This Act, for the sake of brevity, is referred to in this Judgment as Act XVI of 1977. It was limited in duration and was to expire on Mar. 31, 1981. On the expiry of Act XVI of 1977 no legislative measure concerning the above subject was enacted or brought on the Statute book. However, the Governor of Bihar was pleased to issue Ordinance No. 63 of 1982 in relation to the matters which were previously governed by Act XVI of 1977. It was through this Ordinance, Ss.13 and 14 of the Act were, for the first time, brought on the Statute Book. It is evident from the perusal of Ordinanc
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