Patna High Court
Kantilal Kachhi vs Smt. Ashokalata Devi And Ors. on 25 August, 1976
Equivalent citations: AIR1977PAT118, AIR 1977 PATNA 118
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT Lalit Mohan Sharma, J.
1. This appeal by the defendant-tenant is directed against the decree of his ejectment from a house in Dhanbad fully described in Schedule A of the plaint, passed by the lower appellate Court.
2. The grounds for eviction mentioned in the plaint are failure to pay the arrears of rent and several breaches of the terms and conditions of the tenancy including subletting a portion of the premises to defendant No. 2 and making various additions and alterations in the building. Earlier in 1964, T. S. 358 of 1964 had been filed for eviction of the appellant (defendant No. 1). The suit was ultimately dismissed on the ground of non-service of notice to quit under Section 111 (g) of the Transfer of Property Act (hereinafter referred to as 'the Act').
The claim for arrears of rent wag decreed. The plaintiff thereafter served a notice under Section 111 (g) of the Act dated 14-11-1966 on 15-11-1966 terminating the lease with effect from 30-11-1966 and after the period was over, they filed the suit. After the dismissal of the earlier suit and before the service of the notice, an important event took place. The defendant tendered the rents for the months of August and September 1966 to the plaintiff which was accepted.
3. The plea of the defendant being a defaulter in payment of rent raised in the plaint was not pressed before us. It is, therefore, not necessary to deal with that point. The plaintiff also claimed a decree for arrears of rent which has been allowed by both the Courts below and is not the subject-matter of the appeal.
4. The appellant filed a written statement pleading, inter alia, that defendant No. 2 is simply an employee and no sub-lease has been created in his favour and the defendant has not committed any breach of condition of tenancy and the suit is not maintainable.
5. The trial Court held that defendant No. 1 was not guilty of subletting the premises and that the question regarding defendant making alterations and additions in the premises was barred by res judicata, in view of the decision in T. S. 358 of 1964. The judgment and decree in that case are Exts. 4 and 5. The Court also held that the claim of defendant's eviction from the premises is barred under Order 2, Rule 2. The plaintiff also sought to make out a case of forfeiture on the ground that the defendant had in T. S. 358 of 1964, set up falsely the title of one Chaturbhuj - against the plaintiff with respect to a portion of the premises. The Court held that this plea was barred by the principles of waiver. The suit was, accordingly, dismissed, so far the relief for eviction of the defendant was concerned.
6. The plaintiff appealed and the lower appellate Court set aside the finding of the trial Court on the question of application of Order 2, Rule 2 and of waiver and held that the suit was not barred. A decree for eviction was accordingly passed. The defendant has, thereafter, appealed.
7. It has been contended on behalf of the appellant that the plea of forfeiture must be held to have been waived when the plaintiff accepted the rent for the months of August and September 1966. Reliance was placed on Section 112 of the Act. On the question of breach of condition, it has been argued that under the law, a breach has to be of an express condition between the landlord and tenant and in this case, there has not been any agreement prohibiting alterations in the premises. The learned counsel also urged that the time allowed in the notice to quit was unreasonably short. The bar of Order 2, Rule 2 was also pressed.
8. In reply, Mr. J. C. Sinha, appearing for the plaintiff-respondent submitted that there is no question of applying Order 2, Rule 2 of the Code in the present case inasmuch as the plaintiff did not omit to claim a decree for eviction in the earlier suit. If at all, a question can arise whether the remedy in the present action is barred by res judicata, He appears to be right. As the earlier suit failed on the ground of non-service of notice and not on merits, a plea of res judicata also cannot be allowed. He further placed reliance on the language of Clause (g) of Section 111 of the Act which reads as follows :
"111. A lease of immovable property determines-
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(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."
He said that the earlier suit was based on breach of a condition while the present suit is founded on forfeiture. A lessor can invoke a ground for forfeiture only after he gives notice in writing to the lessee of his intention to determine the lease. This requirement is a condition precedent and unlike a notice under Section 106 of the T. P. Act does not furnish cause of action.
9. On the question, whether the time granted by the notice to quit was reasonable or not, the learned Counsel for the appellant relied upon the decision in State of Bihar v. Saubhagya Sundari Devi, (AIR 1972 Pat 200). This question has not been raised in the written statement and as it is not a pure question of law, the appellant cannot be permitted to raise it at the second appellate stage for the first time.
10. The respondent, however, appears to be in difficulty on the point of breach of the conditions of tenancy. If the decree for eviction is founded on a plea of forfeiture within Clause (g) of Section 111 of the Act, as is the case before us, breach has to be of an express condition which provides that on such breach the lessor may re-enter. It is not claimed that there was such an express condition between the parties. Mr. Sinha submitted that there is a finding by the lower appellate Court that the condition of the building has materially deteriorated owing to the alterations made in the premises by the defendant and the condition mentioned in Clause (b) of Section 11 (1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act is, therefore, satisfied. He claims that the decree for eviction can be maintained on this ground. This argument, however, cannot succeed. Since the plaintiff for the purpose of this argument does not rely upon the claim of forfeiture under Clause (g) of Section 111 of the Act, the provision of Clause (h) which reads as follows would apply :
"111. A lease of immovable property determines-
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(h) on the expiration of a notice to determine the lease or to quit, or of intention to quit, the property, leased duly given by one party to the other".
In the present case, where the tenancy is from month to month, the notice to quit must be given under. Section 106 of the Act. The plaintiff, in the present case, has not served a notice under Section 106 of the Act. The notice (Ext.-1) served on the defendant on 16-11-66, even if treated to be under Section 106 of the Act would not serve the purpose of the plaintiff inasmuch as a period of clear 15 days was not allowed under it. While calculating the period mentioned in Section 106 of the Act, the day on which the notice is served must be excluded. Under Ext.-l, the defendant was allowed only 14 days. Appreciating the difficulty, Mr. Sinha shifted the ground and contended that a decree for eviction not on the first condition mentioned in Clause (g) of Section 111 of the Act, but on the second condition might be passed.
11. In T. S. 358 of 1974, the tenant defendant challenged the title of the plaintiff to a portion of the premises let out, as is clear from the written statement which is Ext. 6 in the present case. He reiterated his stand in his deposition which is Ext. 7 in this case. Mr. Sinha is therefore, right when he says that the tenant renounced his character as such by setting up a title in a third person in respect of a portion of the premises in question. The second condition mentioned in Clause (g) of Section 111 of the Act is, therefore, satisfied. Mr. Ram Nandan Sahai Sinha argued that the plaintiff cannot rely upon the aforementioned second condition as the term of the tenancy does not provide that the plaintiff may re-enter when the defendant repudiated the plaintiff's title. He relied upon the words "and lease provides that lessor may re-enter on the happening of such event" in Clause (g). This argument does not have any force. The quoted words apply only to the third condition regarding the lessee being adjudicated insolvent. They do not apply to the first or second conditions at all. The three conditions mentioned in Clause (g) have been clearly separated by legislature and have been joined only by semi colons. The words relied upon by Mr. Ram Nandan Sahai Sinha are part of third condition only. The common requirement of service of notice, which applies to all the three conditions has been separately mentioned after closing the third condition with a semi colon. The provision requiring an express term respecting a breach of the terms of condition mentioned in the first condition also supports this view. I, therefore, overrule the argument on behalf of the appellant on this point and hold that the plaintiff has established that the second condition mentioned in Clause (g) of Section 111 of the Act is present.
12. This however does not enable the plaintiff to obtain a decree for eviction. Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act does not mention disclaimer of the title of the landlord by a tenant a ground for eviction. The law governing relationship Of landlord and tenant in Bihar was and is still guided by the provisions of the T. P. Act, but, since the Bihar Buildings Control Act has come into effect, its provisions also, in addition, control it. While dealing with the scope of the two Acts the Full Bench in Niranjan pal v. Chaitanyalal Ghose, (AIR 1964 Pat 401) (FB) held that so long there was no inconsistency, the provisions of both the Acts would stand together and be given effect to. But if there is any conflict between a particular provision of the T. P. Act and Section 11 of the Bihar Buildings Control Act, the latter provision would prevail on account of the non obstante clause in it. There are only five grounds mentioned in Section 11 of the Bihar Buildings Control Act, three of them being personal necessity of the landlord, default by tenant in payment of rent and expiry of the period of tenancy. The other two grounds are (a) breach of the conditions of tenancy or subletting or if the tenant is an employee of the landlord, termination of such employment and (b) material deterioration in the condition of the building due to act or omission of the tenant. None of these grounds includes forfeiture of the tenancy due to repudiation by tenant of the landlord's title. There is, therefore, a clear conflict between Section 111 (g) (2) read with Section 108 (q) of the T. P. Act and Section 11 of the Bihar Buildings Control Act and the plaintiff cannot succeed on the ground of forfeiture based on the second condition. Mr. Simha stated that many suits for eviction of a tenant in Bihar have succeeded on the ground of disclaimer of the plaintiff's title by the tenant. He cited the decisions in Abdul Rahim v. Md. Azimuddin, (AIR 1965 Pat 156) and N. P. Shukla v. Janki Devi, (1966 BLJR 1006) by way of illustrations. The ground of forfeiture relied upon by the plaintiff in Abdul Rahim v. Md. Azimuddin was breach of the condition of tenancy. The Courts recorded their finding in favour of the plaintiff that the defendant had committed forfeiture of tenancy by nonpayment of rent and use of the premises for purposes other than keeping hotel. These findings were not challenged in the High Court and the only question raised was that there was no cause of action for the plaintiff to bring the suit as he had not determined the lease by giving a notice in writing. This decision therefore, had no occasion to consider a case of forfeiture on the basis of the second condition mentioned in Clause (g). In N. P. Shukla v. Janki Devi, the High Court was requested to revise an order of the trial Court striking out the defence on account of failure to deposit monthly rent. The nature of the ground for forfeiture does not appear from the judgment and it cannot be assumed that it was a case of disclaimer of the plaintiff's title by the tenant. No case has been cited by Mr. J. C. Sinha where a decree for eviction was passed in a suit governed by the Bihar Buildings Control Act on the ground of the tenant renouncing his landlord's title. The plaintiff, in the present case, therefore, cannot succeed on the plea of forfeiture as pressed on his behalf.
13. The tenant-defendant has relied upon Section 112 of the Act which reads as follows:--
"Section 112. A forfeiture under Section 111, Clause (e) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting;
Provided that the lessor is aware that the forfeiture has been incurred;
Provided also that where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver".
14. Mr. J. C. Sinha, contended that forfeiture is complete only after the service of notice in writing to the tenant, as mentioned In Clause (g) of Section 111 of the Act and until such notice is served, it cannot be said that forfeiture has taken place. In the present case, rent for August and September, 1966 was accepted before the notice was sent. It is, therefore, argued that there had been no forfeiture on the date when the rent was received and no question of waiver could arise. On behalf of the tenant, the submission is that the first proviso to Section 112, quoted above, leads to the inference that forfeiture is incurred even before the service of notice. If notice be considered to be essential for forfeiture within the meaning of Section 112, the proviso would be meaningless. Apart from these contentions, there appears to be still another question involved in this point. While defining 'tenant' in Section 2 (f) of the Buildings Control Act, the term has been said to include a person continuing in possession even after termination of the tenancy. This suggests that rent has to be paid by a tenant even after termination of a tenancy and may be received by the landlord. The provision of Section 11-A of the Buildings Control Act suggests the same position. The Buildings Control Act is a special Act and it may, therefore, be urged that it should prevail against Section 112 of the T. P. Act which is the general provision of law applicable to all cases of tenancy. Can it, therefore, be said that the landlord would be deemed to have waived a forfeiture by acceptance of rent ? All these questions appear to be quite controversial, but it does not appear essential to decide them in the present litigation inasmuch as the defendant-appellant must succeed on the findings recorded by me above, even without the assistance of a finding in his favour on the question of waiver. I, therefore, leave this question open.
15. In the result, this appeal succeeds. The decree of the lower appellate Court for eviction of the defendant passed by the lower appellate Court is set aside and the suit is dismissed with respect to the prayer for eviction. I, however, direct that the parties should bear their own costs throughout.
Birendra Prasad Sinha, J.
16. I agree.