Patna High Court
Goureepada Chattopadhyaya vs Janki Ram on 18 August, 1975
Equivalent citations: AIR1976PAT215, AIR 1976 PATNA 215
JUDGMENT H.L. Agrawal, J.
1. This application in revision is by the plaintiff arising out of an order passed by the learned Subordinate Judge, Chaibassa rejecting his petition under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act') on the ground that the suit itself was not instituted under the provisions of the Act. The relevant facts are these :
2. Admittedly, the petitioner is the owner of the suit premises and the defendant is in occupation of the same. According to the plaintiff's case, as made out in the plaint the defendant was previously a monthly tenant on rent of Rs. 45 of the premises in question. In order to improve the condition of the then existing structure, the defendant handed over vacant possession of the premises to the plaintiff along with other occupants of the building so much so completely surrendering the tenancy. The plaintiff thereupon reconstructed and then leased out the said premises to the defendant on certain terms and conditions, inter alia, on "the distinct understanding that in case of Ms failure to execute a lease after paying the agreed amount, he would be treated as a licensee and would be evicted from the block". In assertion of his right that he was lessor, the plaintiff also refused to accept the rent tendered by the defendant by money order. He accordingly instituted the present suit "for removal of the defendant and his total ouster from block No. 9". In Schedule 'B' of the plaint, he also gave the account of money claim of Rs. 120 which was as follows ;
"(A) Damages for occupation of Block No. 9, as a licensee for the month of February, 1966 ...
Rs. 100.00 (B) Damages at the rate of Rs. 5/- per diem from 1-3-1966 till 4-3-1966 ...
Rs. 20.00 Total Rs. 120/-"
In paragraph 12 of his plaint, the plaintiff made the following unequivocal statements :
"That the defendant is a licensee, pure and simple, in respect of Block No. 9, more fully described in Schedule A te-low. The plaintiff also claims to be entitled to recover from the defendant, a sum of Rs. 120 as per account given in Schedule 'B' below....."
3. In the written statement, the defendant, however, took a position that he was not a licensee but was a tenant on a monthly rental of Rs. 34.50.
4. On filing of this written statement, the plaintiff made an application for amendment of the plaint and for adding a new paragraph as paragraph 12-A and for certain other ancillary amendments. By this amendment, he made out an alternative claim that "assuming for the sake of argument but not admitting, that the case of surrender by the defendant of the shop premises described in Schedule 'A' below as set up by the plaintiff, cannot be accepted in law or fact, the defendant has rendered himself liable to be evicted from the shop premises as he defaulted in paying the monthly rent for the months of December, 1965 and January, 1966". He thereupon made an application on 5-8-74 making a very short statement therein that as the defendant had filed his written statement, he should be direced to deposit all the arrears of rent in terms of Section 11-A of the Act. The defendant filed a long rejoinder challenging the maintainability of the application for the simple reason that the plaintiff had not instituted the suit as a landlord within the meaning of Section 11 of the Act. The learned Subordinate Judge upheld the objection of the defendant and rejected the prayer.
5. In this Court Mr. S. C. Ghosh, appearing for the petitioner, contended that the petitioner was entitled to an order in his favour on the mere admission of the defendant of his status of a tenant and, therefore, the court below had committed a serious error of jurisdiction. Learned counsel contended that it was open to the plaintiff to put forward an alternative case and claim an alternative relief. Therefore, as he had already claimed an alternative relief after the amendment, by putting an alternative case that he was a landlord, there was no difficulty in his way to get an order in his favour under Section 11-A of the Act.
6. Having heard learned counsel for the parties and examined the entire scheme of the Act and the provisions of the Code of Civil Porcedure, I have got no doubt in my mind that the application of the petitioner has been rightly rejected by the learned Subordinate Judge. It is no doubt true that a plaintiff is entitled to claim an alternative relief as also to put forward an alternative case for consideration before the court just like a defendant who can put inconsistent pleas of defence. The undisputed question, however, that obtains on the pleadings of the present petitioner is that in spite of the clear stand of the defendant that he is a tenant and not a licensee, he has not elected to reconcile himself as a landlord simpliciter. On the other hand, he wants to proceed on the footing that he Ls a lessor under the provisions of the T. P. Act entitled directly to eject the defendant without consideration of any of the protections envisaged in Section 11 of the Act for a tenant. It is true that the court will determine the question, if necessary, as to whether the plaintiff was the landlord and the defendant a tenant in view of the defence as well as amendment of the plaint. But, in my opinion, that situation and stage will arise only when the court conies to the conclusion that the plaintiff is not entitled to get the primary relief of ejectment of the defendant as a licensee pure and simple, an issue which has got to be decided in the suit. Therefore, until that stage comes, that is, when the trial court proceeds to the judgment and holds that the plaintiff is not entitled to his primary claim to eject the defendant as a lessor, the relationship of landlord and tenant between the parties is at a far distance.
7. Yet another aspect of the matter may be examined at this very stage. Suppose an order under Section 11-A of the Act is passed against the defendant and the landlord withdraws the amount, but ultimately the Court records a finding that he was only a lessor and not a landlord, in that event he will derive undue advantage to which he was not entitled otherwise. The court of law, therefore, will be cautious in giving any undue advantage to a suitor. In order to construe the basis of the plaintiff's claim, the allegation made in the plaint will be the only relevant consideration and he cannot be permitted to fall back upon the allegations made in the written statement.
8. The provisions of Section 11-A are plain and unambiguous. They specifically provide that "if in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent....." The very wordings of Section 11-A, therefore, provide that the suit must be by a landlord .and the amount that may be ordered to be paid by the defendant must be the rent payable 'by a tenant and not anything else such as damages for use and occupation by a lessee or the like.
9. The penalty contemplated under Section 11-A is also relevant. In the case of failure to comply with the direction under this section, the defence of the tenant against ejectment is to be struck off. It has been settled by a long line of judicial decisions of this Court that only such defence has to be struck off which are qua-tenant and not any other defence. The defence, of course, of the defendant is that he is a tenant; nonetheless, this is not relevant for the purpose of passing an order under Section 11-A of the Act, for that defence has been put forward by the defendant in order to defeat the suit of the plaintiff for his ejectment as a licensee.
10. Considering the case, therefore, from all possible angles, it must be held that the application under Section 11-A of the Act by the plaintiff was not maintainable as he has not sued the defendant as his landlord and under the provisions of the Buildings Control Act. The prayer of alternative relief and an alternative case put forward is immaterial and of no consequence.
11. In the result, the application fails and is dismissed. In the circumstances, there will be no order as to costs.