M.Y.EQBAL,J. - (1.) THIS writ application under Article 227 of the Constitution of India is directed against the judgment and decree passed by the District Judge, Deoghar in Misc. Appeal No. 15/03 whereby he has dismissed the appeal and affirmed the order dated 30.9.2003 passed by Sub -Judge -III, Deoghar in Misc. Case No. 17/03.
(2.) THE facts of the case lie in a narrow compass : The plaintiff/respondents filed Title Eviction Suit No. 21/01 for decree of eviction. In the said suit petitioner and his four sons who are the defendants appeared and after taking leave to contest the suit filed joint written statement. The Court below proceeded under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act. The plaintiff/respondents after examining witnesses, closed the evidence. The defendant examined some formal witnesses and thereafter, left pairavi in the suit. The Court below after giving opportunity to the defendant to lead evidence, proceeded in accordance with the provisions of Order XVII, Rule 2, CPC and delivered judgment and decreed the suit. The defendant/plaintiff then filed application under Order IX, Rule 13, CPC for setting aside the decree, which was seriously contested by the plaintiff/ respondents on the ground inter alia that application under Order IX, Rule 13, CPC was not maintainable. The trial Court registered the said application being Misc. Case No. 21/01 and after hearing the parties passed a reasoned order and held that application under Order IX, Rule 13 was not maintainable and consequently dismissed the Misc. Case, Aggrieved by the said order, petitioner filed the appeal before the District Judge, Deoghar being Misc. Appeal No. 15/03. The District Judge following the decisions of the Patna High Court in the case of Md. Jainul Ansari and Anr. v. Md. Khalil, (1990) 2 PLJR 378 and in the case of Mostt. Sarswati Devi others v. Kunti Devi and Anr., (1991) 2 PLJR 446 held that once suit is proceeded under Section 14 of the aforesaid Act and decree is passed then application under Order IX, Rule 13, CPC is not maintainable. The conclusion arrived at by the District Judge in para 9 of the judgment passed in Misc. Appeal No. 15/03 is reproduced herein below :'After having heard learned counsel for both the sides and upon going through the record I find that the eviction suit was filed by the plaintiff under Section 14 of the said Act in which the defendants, one of whom is the appellant in the present misc. appeal, had filed application for leave for contesting the suit and the said leave was also granted under Section 14(4) of the Act to the defendants. Subsequently, the defendants filed the joint written statement and they contested the suit to some extent, but they left the pairavi after examining 3 D. Ws who were only formal in nature. Subsequently the suit was decreed by the Court below. As such, the judgment and decree passed by the Court below was clearly under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act. Section 14(8) of the Act clearly prescribes that no appeal or any second appeal shall lie against an order for the recovery of pos -session of any premises made in accordance with the procedure specified in this section. As such against the judgment and decree passed by the Court below in T(E) S. No. 21/01, no appeal was maintainable in this Court and the only remedy available to the defendants was by way of revision in the Hon'ble High Court if the decree was not an ex -parte decree. This position of law is well settled by the full Bench decisions of the Hon'ble Court in Md. Jainul Ansari's case (supra), and in Most. Sarswati Devi's case (supra). Subsequently, the appellant filed the application under Order IX, Rule 13, CPC in the Court below which was dismissed as not maintainable. The legality or otherwise of the said order, in my considered view, cannot be looked into this Court in this misc. appeal even, if it is held that in view of the decision of the Hon'ble Supreme Court of India in B. Janakiramaiah Chetty's case (supra), that the judgment and decree passed by the Court below in the eviction suit was clearly ex -parte adjudication and not a decision on merits, inasmuch as the appeal is barred under Section 14(8) of the Act. No Misc. appeal also can be entertained against any order passed under Order IX, Rule 13, CPC Order XLI, Rule 1(d), CPC clearly prescribes that an appeal is maintainable against the order under Order IX, Rule 13, CPC rejecting an application (in a case open to appeal), for an order to be set aside as the decree passed was ex -parte. This provision clearly prescribes that the appeal is maintainable only against such orders which are passed on an application in a case to appeal, but in the present case the impugned judgment and decree passed in T. (E). S. No. 21/01 was clearly barred under Section 14(8) of the Act. In that view of the matter, any order passed under Order IX, Rule 13, CPC against the said judgment and decree cannot be entertained in this Court. From the decisions of the Hon'ble Patna High Court in Gouri Shankar Kanodia's case (supra), and in Santosh Singh's case (supra), it is apparent that they were the revisions which were maintained by the Hon'ble High Court and not the misc. appeals in the appellate Court, accordingly, in my considered view, this misc. appeal is not at all maintainable and the legality or otherwise of the impugned order passed by the Court below cannot be adjudicated in the present misc. appeal.' Mr. Rajiv Ranjan, learned counsel for the petitioner assailed the impugned judgment and order passed by the Court below only on the ground that the Courts have totally failed to appreciate the law by holding that application under Order IX, Rule 13 was not maintainable. Learned counsel submitted that when substantial evidence is not adduced by the defendant then the only recourse available to the Court is to proceed under Order IX of the Code of Civil Procedure and pass ex -parte decree. I do not find any substance in the submissions of the learned counsel.
(3.) FROM perusal of the trial Court's judgment, passed in Title Eviction Suit No. 21 of 2001, it appears that the Court below passed a reasoned judgment deciding all the issues separately and decreed the suit on contest. It has also not been disputed by the petitioner that suit was proceed in accordance with the procedure provided under Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act. Even if the decree is ex -parte by following the procedure under Section 14 of the said Act the only remedy available to the aggrieved party is to file revision as contemplated under Section 14(8) of the said Act. This check has been introduced to enable the landlord to reap the fruits of the decree at an early date since by appeal the matter is kept sub -judice and the landlord has to run from pillar to post for petty long time till appeal is disposed of. The summary procedure provided for disposal of a suit for eviction filed under special ground has since been adopted by the trial Court. I am of the view that the learned District Judge has rightly held that appeal is not maintainable.;