Patna High Court
Dwarka Prasad Kapri vs Smt. Chandra Mania Devi on 28 July, 1987
Equivalent citations: AIR1988PAT317, 1988(36)BLJR77, AIR 1988 PATNA 317, (1987) PAT LJR 864, 1988 BLJR 77.2, 1987 BLT (REP) 287, (1987) BLJ 720
Author: N.P. Singh
Bench: N.P. Singh, B.P. Singh
JUDGMENT N.P. Singh, J.
1. The defendant in a suit for eviction, has filed this revision application for setting aside an order directing the petitioner to deposit, during the pendency of the suit, the arrears of rent including the arrears for the months prior to the filing of the suit.
2. According to the petitioner, while exercising the power under Section 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereinafter referred to as 'the Act'), it was not open to the court below to direct deposit of arrears of rent in respect of months prior to the institution of the suit, especially in a case where the plaintiff has not sought for a decree for arrears of rent. In support of his stand reliance was placed on a Full Bench judgment of this Court in the case of Ram Nandan Sharma v. Maya Devi, AIR 1975 Pat 283. A question had arisen in the aforesaid case as to whether in exercise of the powers under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act"), "the arrears of rent" is to be confined to the period after the institution of the suit or shall cover even the period prior to the institution of the suit. It was held that court in exercise of power under Section 11-A of 1947 Act cannot direct deposit of arrears of rent in respect of period prior to the institution of the suit.
3. Sub-section (1) of Section 15 of the Act which is relevant, in the present case, is as follows : --
"15. Deposit of rent by tenants in suits for ejectment.-- (1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of RENT, if any, and the Court after giving opportunity to the parties to be heard, may make any order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both of before and after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlords witnesses".
On a plain reading, the aforesaid Sub-section (1) of Section 15 of the Act enables the landlord to move the Court during the pendency of the suit for an order on the tenant to deposit rent month by month at the rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any, both of before and after the institution of the suit, if any. It may be pointed out that the aforesaid expressions "subject to the law of limitation" and "both of before and after the institution of the suit" were not in Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter referred to as 'the 1977 Act') which was the parallel provision to Section 15 of the present Act. The same was the position of Section 11-A of 1947 Act. Now in Section 15 of the Act, power has been specifically vested in the court to direct deposit of arrears of rent even for period before the institution of the suit subject to the law of limitation. When Section 15 vests power in clear and unambiguous words in the court before which a suit for recovery of possession of the building is pending to pass an order for deposit of rent even in respect of period before the institution of the suit it has to be held that the tenant can be directed after an enquiry contemplated by Section 15 to deposit arrears of rent even for the period prior to the institution of the suit subject to the law of limitation.
4. The learned counsel appearing for the petitioner then submitted that even if under the new Section 15 of the Act Court can direct deposit of arrears of rent for period prior to the date of the institution of the suit, such power can be exercised only in a case where the plaintiff has made a prayer in the plaint for a decree for arrears of rent in respect of the period prior to the institution of the suit. In this connection reliance was placed on the judgment of a learned Judge of this Court in the case of Raghubir Prasad v. Surya Narayan, AIR 1986 Pat 17 where a question had arisen in connection with Ss. 14 and 15 of the present Act as to whether a landlord who has not made a claim for arrears in the plaint can file an application under Section 15 of the Act for a direction for deposit of month to month current rent as well as arrears. In that connection it was observed as follows : --
"In my view, if Section 15 of the Act is stretched in its application, as interpreted by the learned counsel for the opposite party, it will lead to certain ridiculous anomalies. In other words, the Court would be entitled to order payment of arrears even where no arrears can be claimed in law as the matter is being tried under the procedure prescribed under Section 14 of the Act which does not deal with recovery of arrears of rent and is only restricted to two of the several grounds available to the landlord for evicting a tenant under Section 11 of the Act. The legal situation cannot be disputed even in a suit for eviction for default. If no arrears of rent are claimed relief under Section 15 of the Act is not available to the landlord. This principle will apply more so in a proceeding under Section 14 of the Act where no such relief can be claimed in law. The matter does not, however, rest there. The question of payment of current rent during the pendency of the suit is also a matter in issue and for that purpose and to that extent Section 15 still applies to suits being tried under Section 14 of the Act."
In the aforesaid case the learned Judge has examined the question in respect of direction regarding payment of arrears of rent in connection with a suit to which Section 14 is applicable. In other words, where eviction is sought on the ground of personal necessity or on the ground or expiry of the period of tenancy where there is no scope for making a claim for arrears of rent in the plaint itself, is not of much help, in the present case. The present suit has been filed on the ground of default in payment of rent by the petitioner since Oct. 1983 to April, 1985. Apart from that with due respect for the learned Judge, who decided the aforesaid case, in my view, once he has held that Section 15 of the Act applies even to such suits tried under Section 14 then I do not find any reason for holding that it will apply only so far current rents are concerned and shall not be applicable in respect of arrears of rent. Section 15 opens with the words "if, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment". As such Section 15 shall apply to all suits for recovery of possession of any building where the ejectment is sought on one ground or the other mentioned in Section 11 of the Act. It may be pointed out that Section 11 of the Act says that "where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the court on one or more of the following grounds........."
As such whenever a suit is filed for eviction of a tenant on any of the grounds in Section 11 of the Act it will amount to a suit for recovery of possession of the building in question. Whether recovery of possession of the building is sought for on the ground of default in payment of rent, or on the ground of personal necessity or due to expiry of the period of lease, is of no consequence or relevance so far the applicability of Section 15 of the Act is concerned. The reason for making it applicable to all such suits for recovery of the possession of the building has a rational basis because, whether the landlord requires the house for his personal use or due to the default in the payment of rent or in the event of the expiry of the period of the lease the fact remains that the tenant is continuing in possession of the house in question during the pendency of the suit. As such the framers of the Act thought it just and proper that the tenant should be required to deposit the rent at the rate at which it was last paid, for the months he has not paid or tendered to the landlord.
5. In a case where eviction is sought on the ground of default in the payment of rent of the building in question, the plaintiff is in need of two reliefs, one for recovery of the possession of the building and the other for arrears of rent. In normal course two suits are required to be filed. But the framers of the Act introduced an equitable provision in Section 11A of the 1947 Act, Section 13 of the 1977 Act vesting power in the Court to direct the tenant to deposit month to month rent for the period during the pendency of the suit so that a landlord is not forced to file a separate money suit against the tenant for the recovery of the arrears of rent for the periods during the pendency of the suit. In the present Act that power has been extended to cover even the period prior to the institution of the suit subject to law of limitation. In this background, the scope of Section 15 should be construed, so that equitable object introduced in the said section is achieved. In my view, the legislature for exercise of the power under Section 15 of the Act has mentioned only the following conditions :(1) the suit should be for recovery of possession of any building, (2) the tenant should contest the suit as regards the claim for ejectment and (3) the Court should give opportunity to the parties to be heard for the purpose of passing an order] under Section 15(1) of the Act. Any additional condition that a direction for deposit of arrears of rent for the period prior to the institution of the suit can be made only in a case where the plaintiff has also claimed arrears of rent for the period prior to the institution of the suit cannot be read in Section 15(1) of the Act.
6. The next question which arises for consideration is as to whether in view of the expression "subject to the law of limitation" mentioned in Section 15 of the Act, the period of three years prescribed in the Limitation Act should be calculated with reference to the date of the filing of the suit or with reference to the date of filing of the application under Section 15 or with reference to the date of the passing of the order under Section 15(1) of the Act. If it is held that the period of limitation of three years is to be calculated with reference to the date of passing of the order, when in many cases, it shall lead to grave injustice. In view of the language of Section 15 itself, an application for direction to deposit the arrears of rent cannot be filed till the tenant contests the suit as regards claim for ejectment. In connection with 1947 Act it has been held by this Court that application under Section 11-A can be filed only after the tenant contests the suit as regards claim for ejectment. In this connection reference may be made to the case of Hariram Maharaj v. G.M. Das, 1969 BLJR 118. As such a plaintiff has to wait in many cases for months and years till the defendant appears and files his written statement contesting the claim for ejectment. Thereafter an application under Section 15 of the Act has to be filed That may itself take months and even years for disposal of such application and, in the meantime, in many cases, on the day when the Court is to pass an order the arrears for a substantial period before and after the institution of suit may be beyond three years as such barred by limitation. In that event the plaintiff for no fault of his is deprived of the arrears of rent.
7. Similarly, if it is held that under exercise of this power arrears of rent even for the period of three years prior to the date of the institution of the suit can be directed to be deposited, it may lead to an anomalous position. Application under Section 15 can be filed only during the pendency of the suit for recovery of possession after the defendant contests such suit for ejectment. A part of the arrears for three years before the institution of the suit by that time must be barred by limitation. The framers of the Act never purported to allow the plaintiff to recover that amount under Section 15 of the Act which was barred by limitation due to lapse of time. As such, in my view, the period of limitation should be calculated with reference to the date of filing of the application under Section 15 of the Act which may include the period before the institution of the suit as well.
8. In the present case, the suit in question was filed on 29-5-1985. The application under Section 15 of the Act was filed on 23-1-1986. The arrears have been directed to be paid from Oct. 1983. As such when the Court below has directed deposit of arrears of rent from Oct. 1983, it is within three years from the date of the filing of the application under Section 15 of the Act. In my opinion, there is no merit in this application. It is, accordingly, dismissed. But, in the circumstances of the case, there will be no order as to costs.
B.P. Singh, J.
9. I agree.