Jaggu Sao v. Jainendra Prasad Gupta @ Jaynandan Pd. Gupta

Heard Mr. Abinash Kumar, learned counsel appearing on behalf of defendant no.2-appellant (petitioner herein). Though notice has been served on the plaintiff (respondent no.1 herein) and who has appeared through counsel whose name also appears in the daily cause list, none had appeared on his behalf when the matter was taken up on

24.7.2012 and noticing his absence the matter was passed over but the situation has not changed as there is no representation on behalf of the plaintiff-respondent even today. The petitioner is aggrieved by the order dated

27.2.2012 passed by the learned Additional District Judge-II, Patna in Title Appeal No.106 of 2011, whereby the application filed on behalf of the appellant (petitioner herein) under Order 41, rule 5 of the Code of Civil Procedure read with section 151 Patna High Court CWJC No.8413 of 2012 (3) dt.25-07-2012 2 thereof praying for stay of execution case bearing Execution Case No.8 of 2011 during the pendency of the appeal, has been rejected. It is the case of the petitioner that the suit premises is a two-storied house as mentioned in the judgment and decree passed in the original suit and while the defendant no.1 (respondent no.2 herein) was in possession of the ground floor of the premises, defendant no.2-appellant (petitioner herein) was residing at the first floor of the house. It is submitted that the defence of defendant no.1 was struck off under section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 but the issue was contested by defendant no.2-petitioner who was paying rent at the rate of Rs.250/- per month to the plaintiff-landlord for the single room on the first floor of the house.

It is further stated that whereas no appeal was preferred by defendant no.1 (respondent no.2 herein), defendant no.2- petitioner has preferred the appeal in question and in which the prayer for stay of the execution case was made limited to his possession over the single room situate on the first floor of the house inter alia, on grounds of substantial loss and rendering the appeal infructuous, which has been rejected. It is with reference to the judgment and decree passed by the learned court below submitted that the issue of partial eviction was considered and rejected while noticing the Patna High Court CWJC No.8413 of 2012 (3) dt.25-07-2012 3 condition of the room on the first floor of the suit premises in which the petitioner is residing. It is the case of the petitioner that as defendant no.1 was residing in the ground floor of the suit premises consisting of three rooms. The judgment and decree as against the defendant no.1, not having been challenged by him, has attained finality and the personal necessity of the plaintiff-landlord would stand satisfied by execution of decree to the extent of ground floor premises.

It is further submitted that in the said circumstances, the continuation of the petitioner in the single room situate on the first floor of the suit property, would not interfere in any manner with the personal necessity of the plaintiff (respondent no.1 herein). It is stated that defendant no.2-appellant-petitioner was paying rent of Rs.250/- per month during the pendency of the suit but he is prepared to enhance the same subject to determination by the court below. Regard being had to the submissions and taking note of the absence of plaintiff-respondent before this Court, this Court has no other option but to remit the matter to the appellate court for a fresh consideration and disposal in accordance with law in the light of the observations made hereinabove. With the observation aforesaid, this writ petition is