The High Court dismissed a civil revision challenging a trial court order that permitted defendants to contest an eviction suit despite a late affidavit for leave to contest, upholding the trial judge’s discretion.
The Civil Revision was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Patna High Court C.R. No.195 of 2012 (07) dt.22-08-2013
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.195 of 2012
============================================== Md. Rafique Alam .... .... Petitioner/s Versus Ashok Poddar & Ors. .... .... Respondent/s ============================================== Appearance : For the Petitioner/s : Mr. Avanish Kumar Singh & Mr. Rashid Ram- Advocates For the Respondent/s: M/s Lala Sachindra Kumar-O.P. Mr. Ashok Kumar Sinha no.2-O.P.1 to 10 ============================================== CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH ORAL ORDER 07 22-08-2013 This Civil Revision is directed against the order dated 18.05.2012 passed by the learned Civil Judge, Senior Division-1, Madhepura in Title Eviction Suit no.288 of 2011 under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (BBC Act). Heard learned counsel for the plaintiff and learned counsel for the Respondents.
In Title (Eviction) Suit No.288 of 2011 defendants appeared, but neither with written statement nor with affidavit to grant leave to contest the suit and a petition was filed on the day of appearance of defendants itself on 03.03.2012 that as defendantopposite parties did not appear with affidavit to grant leave to
Patna High Court C.R. No.195 of 2012 (07) dt.22-08-2013
contest the suit so, he should be debarred to contest the suit. In the meantime, the defendant-opposite parties filed written statement on 14.03.2012 and rejoinder of plaintiff’s petition dated 03.03.2012 along with an affidavit to grant leave to contest the suit.
Submission on behalf of learned counsel for the revisionists is that affidavit for grant leave to contest should be filed on first day of appearance that should not be allowed later. Further, it is submitted that written statement filed earlier to the affidavit should not be accepted. His further submission is that there is no ground in the affidavit, which could be based for granting any leave and trial Court has also granted leave to contest the suit observing that defendants should not be debarred on technical ground.
A case reported in 1998 (1) P.L.J.R. page-126 is the decision of a Single Judge of this High Court in which his Lordship has laid down a principle that it is not mandatory at all to file affidavit to grant leave to contest the suit on the first day of appearance, but that should be filed within reasonable time. In this case, defendant-opposite parties appeared in the case on 03.12.2011, written statement is filed on 14.03.2012, later on affidavit to grant leave to contest the suit and a rejoinder of the
Patna High Court C.R. No.195 of 2012 (07) dt.22-08-2013
plaintiff’s petition on 10.04.2012. Ground is there in affidavit the time in which it is filed, may not be said unreasonable, ground is discussed by the trial Court also. A further technicality that written statement is filed earlier to affidavit to grant leave to contest the suit is also of no consequence as within fifteen days written statement should be filed, which has been filed earlier to fifteen days, in other words, was already on record. So, I find no mistake committed by the trial in passing the impugned order at any
corner.
Accordingly, this Civil Revision is hereby
dismissed.
(Mandhata Singh, J) Vikash/ N.A.F.R.
2 issues framed by the court
Whether filing an affidavit to grant leave to contest after the day of appearance without grounds objects is grounds for setting aside the trial court’s order.
Whether allowing a written statement filed after the notice to appear but within the statutory limit constitutes a trial error when the affidavit was filed later.
Md. Rafique Alam
Ashok Poddar & Ors.
Mandhata Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
