Dismissed

Om Prakash Sharma v. Bushra Zafar Alias Bushra Islam and Ors.

Patna HC21 Jul 2015CWJC/9174/2015

Case brief

AI extract

What is this about?

In this writ application under Article 227, Om Prakash Sharma challenged an appellate court's order deferring the framing of an issue regarding the suit's maintainability under the Bihar Buildings (Lease, Rent and Eviction) Control Act to the time of judgment. The court held that since the petitioner did not raise the maintainability question during the initial trial, exercising writ jurisdiction

What the court decided

AI extract

Om Prakash Sharma Vs Bushra Zafar Alias Bushra… — Civil Procedure and Limitation | Patna HC (2015)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9174 of 2015

¶2

====================================================== Om Prakash Sharma son of Late Girdhari Sharma, resident of Barhai Tola, Machhipur, P.S.- Lodipur, District - Bhagalpur, At present resident of Mailchak , Dr. Rajendra Prasad Road, Khalifabagh, P.S.- Kotwali , Town and District- Bhagalpur.

¶3

.... .... Petitioner/s

¶4

Versus

¶5

1. Bushra Zafar Alias Bushra Islam wife of Late Dr. Zafar Ahmad.

¶6

Sahabaj , minor son of Late Dr. Zafar Ahmad

¶7

Md. Shuza Ahmand, minor son of Late Dr. Zafar Ahmad

¶8

Zoya Zafar, minor daughter of Late Dr. Zafar Ahmad. Nos.2 to 4 are presented through their mother, guardian Bushra Zafar and next friend All resident of Milchak , Dr. Rajendra Prasad Road, Khalifabagh, P.S. - Kotwali, Town and Distrct- Bhagalpur.

¶9

.... .... Respondent/s

¶10

====================================================== Appearance :

¶11

For the Petitioner/s : Mr. Anish Chandra Sinha

¶12

For the Respondent/s : Mr.

¶13

====================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL ORDER

¶14

2 21-07-2015 Heard Mr. Anish Chandra Sinha, the learned counsel appearing on behalf of the petitioner.

¶15

Calling in question the legal acceptability of the order rejecting the prayer of the petitioner in the appellate court below for framing the issues as proposed in the petition filed by the petitioner, this application under Article 227 of the Constitution of India has been filed.

¶16

Patna High Court CWJC No.9174 of 2015 (2) dt.21-07-2015

¶17

¶18

The suit has been filed for eviction of the defendant (petitioner in this writ application) on the ground of personal necessity and default in payment of rent. The defendant appeared in the suit and filed his written statement and thereafter the court framed the issues on 20.01.2003. It also appears that the issues were recast on 18.12.2012. The petitioner who was the defendant in the suit did not raise objection at any stage after 20.01.2003 that another issue regarding the maintainability of the suit under the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the ‘BBC Act’) was also involved. The judgment and decree of eviction thereafter was passed against the defendant and the appeal has been filed against the same. At the stage of argument, a petition was filed on behalf of the defendant-petitioner praying to frame certain issues as mentioned in the petition including the issue regarding the maintainability of the suit under the provisions of BBC Act. The learned court below, by the impugned order, has passed the order for consideration of the said prayer at the time of decision of the suit.

¶19

Mr. Sinha, the learned counsel for the petitioner has submitted that the appellate court below should have framed the issues after allowing the prayer of the petitioner and has wrongly deferred the matter to be considered at the time of passing of the

¶20

Patna High Court CWJC No.9174 of 2015 (2) dt.21-07-2015

¶21

¶22

judgment.

¶23

After considering the submissions on behalf of the petitioner as well as the facts and circumstances of the case, it is transparent that after the framing of the issues on 20.01.2003, the defendant did not chose to raise his objection with regard to another issue also arising in the suit. Admittedly, there was no prayer for trying any issue as preliminary issue under Order 14 Rule 2 C.P.C. After taking chance of the judgment going in his favour, on the basis of the issues already framed, the petitioner at appellate stage has filed the petition praying the appellate court to frame issues as mentioned in the petition. As the appellate court below has passed the order for consideration of the petition/prayer of the petitioner at the time of the passing of the judgment, this Court is not inclined to exercise its jurisdiction under Article 227 of the Constitution of India in the facts and circumstances of the case.

¶24

The writ application is, accordingly, dismissed.

¶25

(V. Nath, J)

¶26

Devendra/-

¶27

Om Prakash Sharma v. Bushra Zafar Alias Bushra Islam and Ors.

Case brief

What is this about?

What the court decided

Om Prakash Sharma v. Bushra Zafar Alias Bushra Islam and Ors.

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Aruna Devi @ Aruna Saha Vs Nirmala Devi and Ors.

Chankaliya Devi Vs Brij Nandan Sharma and Ors.

Subir Barua Ors. Vs Most. Bela Rani Ghosh and Ors.

Devi Yadav and Anr. Vs Suresh Yadav and Anr.

Shankar Rai Vs Shingaro Devi and Ors.

Ram Narayan Singh @ Ram Narayan Prasad Singh Vs Babu Lal Ram and Ors.