Allowed

Zahid Hussain v. Rajendra Pd. Sarogi

Patna HC1 Feb 2013C. REV./321/2011

Case brief

AI extract

What is this about?

In a review petition, the Patna High Court recalled a prior order dismissing a writ application regarding an eviction suit. The Court found an error apparent on the face of the record where it previously held that rent receipts produced to the trial court were not part of the record, despite evidence showing they were filed. The writ was set aside and the matter remanded to consider the arrears of

What did the court decide?

The impugned order recalling the eviction order and directing deposit of arrears allowed; writ dismissed and matter remanded to lower court for fresh order on arrears within one month.

Zahid Hussain Vs Rajendra Pd. Sarogi — Property and Title | Patna HC (2013)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Review No.321 of 2011 In Civil Writ Jurisdiction Case No. 10465 of 2011 ====================================================== Zahid Hussain .... .... Petitioner/s Versus Rajendra Pd. Sarogi .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Mithilesh Kumar Upadhyay For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 06. 01-02-2013 Heard the learned counsel Mr. J.S. Arora appearing

¶2

on behalf of the petitioner. Inspite of service of notice the sole opposite party has not appeared.

¶3

This review application has been filed by the petitioner for review of the order dated 15.7.2011 passed by me in C.W.J.C. No. 10465 of 2011 whereby the order passed by the trial court dated 26.4.2011 in Eviction Suit No. 7 of 2008 passed by Munsif-1^st , Gaya was confirmed and the writ application was dismissed.

¶4

From perusal of the order passed by me it appears that the writ was dismissed on the ground that the petitioner had not produced the rent receipts before the trial court during the hearing of an application under Section 15 of the B.B.C. Act and for the first time in the writ application the said rent receipts were

¶5

Patna High Court C. REV. No.321 of 2011 (6) dt.01-02-2013

¶6

¶7

produced annexing the same. This Court found that there was no mention about the said rent receipts by the trial court in the order. Therefore, this Court observed that the question raised by the petitioner to the effect that the petitioner had already paid the arrears of rent from the month of July 2007 to May 2008 and rent receipts had been granted by the landlord is a question of fact which cannot be gone into by this Court as the same was not produced before the trial court.

¶8

The learned counsel Mr. Arora submitted that in fact the rent receipts for the said period were produced in the trial court to show that the petitioner had already paid the arrears of rent and the said rent receipts were annexed with the writ application also but at the time of hearing of the writ application no list of document was produced before this Court and no categorical statement was made in the writ application. However, subsequently, it was detected that the said rent receipt were produced in the court below along with the other materials with a list of documents and the list of documents has been annexed with this review application as Annexure-1. According to the learned counsel these materials were before the trial court therefore, was required to look into the material and thereafter only the order directing the petitioner to deposit arrears of rent

¶9

Patna High Court C. REV. No.321 of 2011 (6) dt.01-02-2013

¶10

¶11

could have been passed. The learned counsel further submitted that in the order directing the petitioner to deposit arrears of rent the trial court only mentioned that in the rent receipt the name of the tenant is Mumtaz Ahmad has been mentioned without examining the question as to whether the landlord has received the rent for the said period particularly when the landlord is not disputing the correctness or genuineness of the rent receipts. According to the learned counsel all the rent receipts have been signed by the present petitioner who was the defendant and the eviction is sought against him therefore, the court is required to see as to whether the rent has been paid within the agreed period either by the defendant or by anybody or not but the trial court without examining this question merely stated that the name of the tenant has been mentioned as Mumtaz Ahmad and did not give any finding as to whether arrears of rent has already been paid by the tenant or on behalf of the tenant and the landlord received the same or not. The learned counsel for the petitioner further submitted that in the lower court the petitioner has already filed petition to the effect that the review application is pending before this Court and always praying time in presence of the opposite party. Therefore, the opposite party had the knowledge about the pendency of this review application and notice has also

¶12

Patna High Court C. REV. No.321 of 2011 (6) dt.01-02-2013

¶13

¶14

been validly served but the opposite party is not appearing intentionally.

¶15

From perusal of the Annexure - 1 i.e. list of document it appears that the rent receipts for the period which is in dispute including the other rent receipts were produced before the trial court. However, in the order passed by this Court on 15.7.2011 in C.W.J.C. No. 10465 of 2011 it was observed that there is nothing on record to show that the said rent receipts were produced before the trial court or not. Further from perusal of the order passed under Section 15 of the B.B.C. Act also it appears that the lower court has mentioned that from perusal of the rent receipts it appears that at colomn No.1 the name of tenant has been mentioned as Mumtaz Ahmad. Therefore, apparently it appears that the rent receipts were filed by the petitioner in the court below. In my opinion, therefore, the observation made by this Court is an error apparent on the face of the record.

¶16

Further from perusal of the order dated 26.4.2011 passed by the trial court it appears that the trial court has not given any finding as to whether the landlord disputed the genuineness of the said receipts and whether denied the signature made by the landlord on the said rent receipts but only mentioned that in colomn No.1 the name of the tenant has been mentioned as

¶17

Patna High Court C. REV. No.321 of 2011 (6) dt.01-02-2013

¶18

¶19

Mumtaz Ahmad. The court below also observed that the signature of petitioner Zahid Hussain is also there but did not give specific finding as to whether the rent was paid by the tenant to the landlord or not.

¶20

In view of the above fact that the mistake is apparent on the face of the record the order passed by me dated 15.7.2011 in C.W.J.C. No. 10465 of 2011 is hereby recalled. The part of the order dated 26.4.2011 passed in Eviction Suit No. 7 of 2008 by Munsif – 1^st , Gaya is set aside and the matter is remanded back to the court below for passing a fresh order after considering the rent receipts produced by the petitioner and after hearing the parties with respect to arrears of rent only. So far the current and future rent is concerned, that part of the order is upheld as the petitioner is disputing the arrears of rent only. The trial court shall hear the parties and pass the order as directed above within one month from the date of receipt of a copy of this order.

¶21

The review application stands allowed.

¶22

(Mungeshwar Sahoo, J)

¶23

S.S./-

Zahid Hussain v. Rajendra Pd. Sarogi

Case brief

What is this about?

What did the court decide?

Zahid Hussain v. Rajendra Pd. Sarogi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandra Nath Pandey and Ors. Vs Smt. Priti Devi Canoth

Gyanesh Kumar Vs Sri Sitaram Sharma and Ors.

Awadh Bihari Lal and Ors. Vs Phulwanti Devi and Ors.

Bhola Mian Vs Indu Mian and Ors.

Shyam Narain Chaudhary Vs Gopal Chaudhary and Ors.

Prodyat @ Pradut Kr. Bose Vs Sati Guha and Ors.