# BELA DAS & ORS v. SAMARENDRA NATH BOSE

- **Citation:** [1975] 2 S.C.R. 1004
- **Court:** Supreme Court of India
- **Decided:** 1974-12-11
- **Case number:** Civil Appeal No. 425 of 1970
- **Bench:** K. K. Mathew, P. N. Bhagwat!, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bela-das-ors-v-samarendra-nath-bose-6275
- **Pages:** 3

## Headnote

A
J.a111llord cmd tena111-S11it for evic1io11-Tena111s p/;ea that landlord alone
B
couhi 1io1 ma/main suit as there were other co-share.rs-Striking out defence
011 the ground of 1wn-pnyme11t of a/'l'ears--Whether tenant could contest <m
basis of title.
The respondent was tenant of certain premises. As a result of a decr1:e
in a partition suit the premises fell to the share of the appellants and
th1:y
tiled a suit for eviction.
They also applied under s. llA of the Bihar lluildings
(Lease, Rent and Eviction) Control Act, 1947, for payment
ot urrears
•Jf
rent, and the Court directed the respondents L'O pay into court the arrears
C
and futuie rent. The respondent did not comply with
the .order
and
his
defen.;e !o the eviction suit was struck out. Thereafter. an cx-parte dccr.ee
evicting 1h~ respondent was passed and it was confirmed by the first appellate
Court. In second appeal, the High Court remitted the case to the trial Court
on the ground l:ha:t since the respondent had not admitted the appellants to be
lull owners of the premises but contended that other co-sharers of the appdlant's family had also shares therein, ther(: was a denial of the relationship
of landlo ·ct and tenant between the pa·rties and so the order striking out the
D'
respond·~nt's defence qua t,nant did not prevent him from contesting the suit
on the question of title.
Allowing the appeal to this Court,
HELD·. The respondent had admitted that he was tenant under the appdlants and h"'1 paid rent to the appellants recognising them as his landlorcls.
It was not therefore a case of denial ·of relationship of land lord and tenant
betwe~n the parties.
Hi-3 plea was only that the appella·nts being landlords
of a share of the p;emises cou,ld not by themselves claim a decree of evktion
E
against him.
Such a plea was a plea qua tenant and not ctehors it. The
striking out ·of his defence had thμs, the effe,:t of striking out all the defences
raised by the respondent qua tenant including his <lefonce that the appellants
being co-sharer landlords were not entitled to maintain the suit for evictic1n.
f!006 C-F]
•
Mahabir Ram v. Shiva Shanker Prasad and Ors. A.LR. 1968 Patna 415
referred to.
·

## Text

1004
BELA DAS & ORS.
v.
SAMARENDRA NATH BOSE
December 11, 1974
[K. K. MATHEW, P. N. BHAGWAT! AND N. L. UNTWALIA, JJ.)
A
J.a111llord cmd tena111-S11it for evic1io11-Tena111s p/;ea that landlord alone
B
couhi 1io1 ma/main suit as there were other co-share.rs-Striking out defence
011 the ground of 1wn-pnyme11t of a/'l'ears--Whether tenant could contest <m
basis of title.
The respondent was tenant of certain premises. As a result of a decr1:e
in a partition suit the premises fell to the share of the appellants and
th1:y
tiled a suit for eviction.
They also applied under s. llA of the Bihar lluildings
(Lease, Rent and Eviction) Control Act, 1947, for payment
ot urrears
•Jf
rent, and the Court directed the respondents L'O pay into court the arrears
C
and futuie rent. The respondent did not comply with
the .order
and
his
defen.;e !o the eviction suit was struck out. Thereafter. an cx-parte dccr.ee
evicting 1h~ respondent was passed and it was confirmed by the first appellate
Court. In second appeal, the High Court remitted the case to the trial Court
on the ground l:ha:t since the respondent had not admitted the appellants to be
lull owners of the premises but contended that other co-sharers of the appdlant's family had also shares therein, ther(: was a denial of the relationship
of landlo ·ct and tenant between the pa·rties and so the order striking out the
D'
respond·~nt's defence qua t,nant did not prevent him from contesting the suit
on the question of title.
Allowing the appeal to this Court,
HELD·. The respondent had admitted that he was tenant under the appdlants and h"'1 paid rent to the appellants recognising them as his landlorcls.
It was not therefore a case of denial ·of relationship of land lord and tenant
betwe~n the parties.
Hi-3 plea was only that the appella·nts being landlords
of a share of the p;emises cou,ld not by themselves claim a decree of evktion
E
against him.
Such a plea was a plea qua tenant and not ctehors it. The
striking out ·of his defence had thμs, the effe,:t of striking out all the defences
raised by the respondent qua tenant including his <lefonce that the appellants
being co-sharer landlords were not entitled to maintain the suit for evictic1n.
f!006 C-F]
•
Mahabir Ram v. Shiva Shanker Prasad and Ors. A.LR. 1968 Patna 415
referred to.
·
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 425 of 1970.
Appeal by Special Leave from the judgment & decree dated the
17th September, 1969 of the Patna High Court in Appeal from Appellate decree No. 262 of 1969.
·
Purshottam Chatterjee and H. K. Puri, for the appellants.
R. B. Dutar and D. N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-This appeal by the plaintiffs filed by special leave
of this Court against the defendant respondent arises out of a suit for
eviction instituted by the former against the latter from the suit premises situated in the town of Patna. According to the- case of the
plaintiffs
the:
defendant
had
been
inducted
as
a
monthly
tenant of the premises on a rent of Rs. 135/- per month. Subsequently, as a result of a decree in a Parititon Suit between the plaintiffs and
F
G
H
B
c
llELA OAS v. SAMARENDRA NATH (Untwalia J.)
l 005
their co-sharers the property was allc'ted to the former and they became the absolute owners thereof. Plaintiffs wanted to evict the /
defendant on the ground of non-payment of rent, breach of the condi•
tions of the tenency and on account .of their bonafide personal requirements of the suit premises. The defendant in his defence took the
plea that he was not the tenant of ilhe premises, the tenant was Liberty
iX Co. and that the plaintiffs were not. the absolute owners thereof, as
the decree for partition had been set aside in a first appeal filed in the
Pama High Court, there were others who also were the landlords.
Some other pleas were 11lso raised to resist the suit for eviction.
·
. · The suit was instituted on 27-19-1962. On 18•12~1963 the plaintiffs
filed a petition under section 1 lA of the Bihar Buildings (Lease, Rent
and Eviction) Control Act, 1947-hereinafter called the Act-for
directing the defendant to pay the arears of rent as also the current and
future rent. The defendant resisted the claim of the plaintiffs under
section l lA of the Act on the ground that besides thein there were
other landlords of the building in question. But an order under section
l lA of the Act was made against the defendent by the Trial Court on
6-2-1964. To safeguard the interest of the defendant the Court directed that the plaintltfs would not withdraw the amounts deposited in
D . p\irsuance of the order made under section llA of the Act until the
disposal of the suit. The defendant defaulted in compliance with the
order. Hence his defence as against ejectment was struck: out by an
order of the Trial Court made on 8-7-1964. The suit was eventually
taken up for cx-parte hearing on 1·7-1967. The defendant wanted
to obstruct the hearing of the suit proceeding ex-parte but failed.
E
F
G
H
At the ex-parte hearing p~aintiff no. 3 examined as plaintiffs' wit·
ness no. 1. He supported th.cir case in tote including their claim that
they were the .absolute owners of the building of which the defendant
was the tenant.
Thp Munsif, third Court, Patna believed .the evidence
adduced on behalf of the plaintiffs af!d passed on ex-parte decree
directing eviction of the defendant. The fatter went up in appeal which
was dismissed bY Subordinate Judge, First Court, Patna on 21-4·1969.
All arguments raised on behalf of the defendant appellant to challenge
the ex-parte decree failed. He preferred second appeal no. 262/1969
in the High Court of Judicature at P•atna. A learned Judge of that
Court sitting singly allowed the appeal and remitted the case back
to the Trial Court for a fresh trial and decision after allowing opportunity to the parties to adduce their evidence ia the light of the Judgment
of the High Court. The plaintiffs appellants challenge the propriety
and legality of the High Court Judgment passed in the second appeal.
The High Court rejected some of the contentions raised of behalf
of the defendant to challenge the legality of the order made under
o.ection l lA of the Act as also the ordeP striking out his defence as
.gainst ejectment. But it bas taken the view following the full Bench
decision· of the Patna High Court in the case of Mahabir Ram v. Shiva
Shanker Prasad and oth<:r(') that since the defendant had not admitted
the plaintiffs to be his 16 annas landlord there was a denial of relationship of landlord and tenant between the parties and as such the order
striking out the defence as against cjectment of the def;;-ndant qua
··(!) A.I.R. 1968 Patna 415.
1 Ootl
SUPREME COURT Rl~PORtS
[1975] 2 ~ c.~:.
tenant could not prevent him from contesting the suit on the question
of title. In <)ur opinion the High Court has fallen into an error of
faw in applying the ratio of the Full Banch decision of the High Court
referred to above to the facts of the instant case.
The defence set up by the defendant that he was not the. tena.nt
but the tenant was Liberty & Co. was a mere pretence. The High
Court has also not thought it fit to remit the case back because of thi>
defence.
The defendant was carrying on the business in the assumed
name of Liberty & Co. which was not any legal entity or a person
different from the defendant.
A
B
The defendant had admitted that he was the tenant under
the
plaintiffs but was merely asserting that there were some more randlords
of the premises in question. lt was not a case of denial of relationship of landlord and tenant between the perties. In ~he case of MahaC
bir Ram A.l .R. 1968 Pat1rn 4 J 5. the tenant had denied the title of the
plaintiffs and set up a title in himself. In the instant case the pica of
the defendant has been that the plaintiffs being landlords of the suit
premises for a moiety of share could not alone claim a decre for eviction against him.
~uch a plea set up by the defendant to resist the
suit for eviction was a .plea qua tenant and not dehors it. The striking out of the defence on 8-7-1964 had the effect of striking out all· D
defence raised by the defendant qua tenant including his defence that
the plain\iffs alone being co-sharer-landlords 'were not entitled to maintain the suit for eviction.
It may also be added that the !carnied
Munsif in his order dated 8-7-1964 striking out the defence, which
order was confirmed by a Bench of the High Court in Civil Revision
No. 824 of 1964 decided on 21-4-1964, had pointed out on the basis
or the defendant's statements in his written statement as also in his
E
rejoinder to the plaintiffs' petition under section 1 lA of the Act tlrnt
the defendant had admitted that he was paying rent to the plaintiffs
and had recognised them to be their landlords. fa that view of the
matter also the plaintiffs were the landlords of the suit premises occupied by the defendant within the meaning of clause ( d) of section 2
of the Act.
In either view of the matter there is no escape for tll1e
1,
defendant in this case that his entire defence in the suit was in his
capacity as a tenant and on/ its striking out it was struck out as a
· whole. The hearing of the suit ex:,parte was, therefore, legal and valid.
The contrary view taken by the ·High Court is erroneous _in Jaw.
Mr. H. B. Datar, learned counsel for the respondent endeavoured
to persuade us to remit back the case to the High Court for the
rehe•aring of the second appeal in order to find· out whether the exG
parte decree passed on the evidence adduced was sustainable, in Jaw.
We did not feel persuaded to accede to this request of the counsel as
on perusal of the judgment of the Trial Court as also of the
first
appellate Court we found no error of law in them. The suit for eviction was rightly decreed.
In the result this appeal is allowed but without costs.
The judgH
ment of the High Court is set aside.
V.P.S.
Appeal allowed.