Patna High Court
Syed Abid Imam vs Sharafat Hussain on 15 May, 1998
Equivalent citations: AIR1999PAT32, 1998(46)BLJR1054, AIR 1999 PATNA 32, (1999) 1 RENCR 392, (1998) 2 PAT LJR 619, 1998 BLJR 2 1054, (1998) 2 BLJ 523
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. This civil revision application is directed against the order dated 4-10-1997 passed by the 6th Addl. District Judge, Patna, refusing to allow the petitioner's prayer for a direction to the opposite party to deposit the arrears of rent for the period March, 1995 to July, 1997 at the rate fixed by the House Controller i.e. Rs. 960/- per month.
2. The brief facts of the case are that the petitioner being the owner and landlord of the suit premises known as Bank building situated at Meena Bazar, Patna Market, Patna instituted a suit for eviction of the defendant-opposite party from the shop premises situated in the ground flour of the aforesaid building. The plaintiff-appellant's case was that the defendant was inducted as a tenant in the shop premises long back on a monthly rent of Rs. 100/-. In the year 1988 the petitioner filed a case for fixation of fair rent under Sections 5 and 8 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act")- The said case was registered as BBC Case No. 328 of 1988 in the Court of House Controller. Patna. The Controller by a final order dated 12-6-1989 fixed the fair rent of the shop premises alRs. 960/- per month. The opposite party filed appeal before the Collector, Patna against the order of the House Controller being BBC Appeal No. 29 of 1989-90. The appeal was eventually dismissed on 11-3-1994. It is alleged that the opposite party did not file any revision against the order of the Collector and thereby the order of the House Controller became final and fair rent became payable w.e.f. 30-9-1988.
3. The petitioner's case is that despite the order of the Controller the opposite party did not deposit the rent at the rate of Rs. 960/- per month and the rent became due till February, 1995. The petitioner accordingly filed an Eviction Suit No. 5 of 1995 before the Sub-Judge I, Patna, for a decree of eviction on the ground of default and also for a decree of arrears of rent for three years prior to the date of institution of the suit i.e. from April, 1992 to February, 1995 amount to Rs. 33,600/- at the rate of Rs. 960/- per month. The suit was contested by the defendant-opposite party and the same was ultimately decreed in terms of the judgment and decree dated 30-11-1996. The opposite party then filed appeal before the District Judge, Patna, against the aforesaid judgment and decree and the said appeal was registered as Title Appeal No. 184 of 1996 which is pending for disposal before the 6th Additional District Judge, Patna. The opposite party however on direction of the appellate Court deposited arrears of rent as decreed by the trial Court for the period April, 1992 to February, 1995 at the rate of Rs. 960/-amounting to Rs. 33,600/-. In the meantime, the petitioner filed an application before the appellate Court under Section 15 of the said Act for a direction to the appellant-opposite party to deposit arrears of rent from March, 1995 to July, 1997 and also current rent at the rate of Rs. 960/- per month. The appellate Court after hearing both the parties passed the impugned order directing the opposite party to deposit the rent at the rate of Rs. 100/- per month which was the rent last paid by him and not at the rate fixed by the Controller i.e. Rs. 960/- per month. Hence this Civil Revision application by the landlord petitioner.
4. Dr. Uma Shankar Prasad, learned Senior Advocate appearing for and on behalf of the petitioner assailed the impugned order as being illegal and wholly without jurisdiction. The learned counsel submitted that the learned Court below committed serious illegality in not directing the defendant-appellant to deposit the rent at the rate fixed by the Controller. The learned counsel submitted that admittedly fairrent was determined by the Controller before the institution of the eviction suit and after determination of fair rent, the defendant-tenant was bound to pay the rent at the rate fixed by the Controller as the same is lawfully payable rent. Learned counsel submitted that the Court below has not rigntly appreciated the facts of the case and has incorrectly applied the ratio decided by this Court regarding the rate of rent payable under Section 15 of the said Act. The learned counsel submitted that after the insertion of Section 16 in the present Act of 1982, the words 'last paid rent' shall be deemed to be the fair rent fixed by the Controller.
On the other hand, Dr. Rajendra Prasad, the learned counsel appearing on behalf of the opposite party submitted that the question raised by the petitioner has been settled by a Full Bench of this Court in the case of N.M. Verma v. U.N. Singh, 1977BBCJ 662 : (AIR 1978 Pat 101). The learned counsel submitted that it is the last paid rent only which can be deposited under Section 15 of the Act and not the fair rent fixed by the Controller.
5. Having regard to the facts and circumstances of the case and after hearing the counsel for the parties, the question falls for consideration is as to whether the Court below has erred in law in directing the defendant-appellant to deposit the rent at the rate of Rs. 100/- per month which was said to be the last paid rent and not at the rate fixed by the Controller.
5A. In the case of N.M. Verma v. U.N. Singh (supra) the question for consideration before the Full Bench was as to what would be the rate of rent payable under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act,. 1947 (hereinafter referred to as the Act of 1947). The fact of that case was that defendant-tenant was inducted by the landlord initially on a monthly rent of Rs. 160/-. The rent was enhanced several times and since 1970 the tenant continuously paid rent at the rate of Rs. 200/- per month. In the suit filed by the plaintiff-landlord an application was filed under Section 11A of the Act of 1947 for a direction to deposit month to month rent at the rate of Rs. 200/-. The point of law canvassed before the Full Bench by the tenant was that since the original rent was at the rate of Rs. 160/- per month, subsequent enhancements by private agreement between the parties, without recourse to the provisions of the Act, were illegal and the plaintiff was not entitled to additional amounts over and above Rs. 160/-. Their Lordships held that since the rent had actually been paid by the tenant and received by the landlord at a particular rate, the same has to be accepted by the Court for the purpose of Section 11A of the Act of 1947. Their Lordships took the view that such an order passed under Section 11A does not finally determine the liability of parties and equities between them had to be finally settled only by the ultimate judgment in the case. In my opinion, the facts of the instant case is totally different to the facts of that case. In the instant case, rights and liabilities of the tenant with regard to rate of rent payable by him has been finally determined and decided by a competent Court i.e. the Controller and nothing is left to be decided by the Civil Court as the Civil Court has no jurisdiction to decide any further after the order of Controller.
6. The Court below relied upon the decision of this Court in the case of Chiranji Lal Poddar v. Messrs Universal Homeopathic Medical College and Hospital, 1989 PUR 467. In that case the learned single Judge was considering the question as to whether a suit for eviction in Civil Court shall be stayed till the disposal of fair rent proceedings before the House Controller under the provisions of Section 10, C.P.C. His Lordship held that the eviction suit in Civil Court shall not be stayed till the disposal of the fair rent proceedings before the House Controller, The fact of that case was that the tenant was inducted on a monthly rent of Rs. 400/- which was subsequently enhanced to Rs, 550/-. The eviction suit was filed by the landlord and in the meantime fair rent of the whole building was determined at Rs. 500/- per month and the defendant had filed a case for determination of fair rent before the House Controller claiming that the fair rent should be only Rs. 250/- per month. It was held that the defendant-tenant is required to deposit rent @ Rs. 550/- per month.
7. In the case of Anisur Rahnian v. Sardar Yogender Singh, reported in 1992 (2) PUR 822, a question arose as to whether order passed under Section 15 of 1982 Act could be revised and/or modified by reason of subsequent order of the Controller determining fair rent of the suit premises under the provisions of the present Act of 1982. In that case, at the admission stage, a Division Bench observed that in view of 1982 Act, the decision of the Full Bench in N.M. Verma case (supra) requires reconsideration by a larger Bench. However, the matter was not referred to the larger Bench by Hon'ble the Chief Justice, rather it was decided by the Division Bench of this Court. The Division Bench took the view that the question raised in that case was considered by another Full Bench in the case of Dr. Sachidanand Sinha v. Collector, Patna, 1989 PLJR 1141. Accordingly, the Division Bench relying upon the Full Bench decision held that it would be the last paid rent which is to be deposited under Section 15 of the 1982 Act and the order passed under Section 15 cannot be modified because of determination of fair rent subsequently.
8. From perusal of the decision of the Full Bench in the case of Dr. Sachidanand Sinha v. The Collector (supra), it appears that the following question was referred to the Full Bench for consideration :
"Whether during the pendency of an appeal before the appellate authority against an order passed by the Collector determining the fair rent in respect of any premises or a Revision before the Commissioner against an order of the appellate authority, it is open to the appellate authority or the Commissioner to direct the tenant under Section 16(2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 to deposit rent during the pendency of such appeal or revision at the rate different from the rate fixed by the Controller."
9. In my opinion, therefore, the question referred to and decided by the Full Bench is not the question involved in the instant case.
10. So far determination of fair rent under the old Act of 1947, there is complete departure in the Act of 1982. The mode of fixation of fair rent has been changed and the municipal valuation of the tenanted premises which was the criteria in the old Act was given a go bye and now it has to be determined on the basis of prevalent rent in the locality. In other words, under the old Act, fair rent was always determined much below the normal agreed rent or normal rent prevailing in the locality as determination of fair rent was based on the municipal valuation of the property. The said provision was, therefore, always used by the tenant as a weapon against the landlord, inasmuch as whenever landlord tried to evict the tenant, the latter immediately used to move the Controller for determination of fair rent. The legislation in order to avoid any undue hardship on the landlord, used the words 'last paid rent' in Section 11A (old) and stopped the tenant from putting a defence that it should be the fair rent and not the last paid that should be deposited. It appears that the legislature was conscious of the fact that there was a need to increase the fair rent by amending law to the effect that the fair rent shall be determined on the basis of rate of rent prevailing in the locality for the same or similar accommodation. Accordingly, in the Act of 1982 the said criteria was added in Section 6 of the Act.
11. As noticed above, in the present case, the defendant-opposite party was inducted as a tenant in a shop long long back on a monthly rent of Rs. 100/-. In the year 1988 in a fair rent proceeding, the fair rent was determined by the Controller at the rate of Rs. 960/- per month and appeal against that order was dismissed and the order became final. It appears that even after the determination of the fair rent in 1989, the defendant-opposite party did not pay rent at the rate determined by the Controller for about seven years and ultimately the eviction suit was filed in the year 1975 on the ground of default in payment of rent @ Rs. 960A per month since 1989. The trial Court decreed the eviction suit holding that the defendant-opposite party became defaulter by not paying or remitting the monthly rent at the rate filed by the Controller. The trial Court also decreed the suit for arrears of rent amounting to Rs. 33,600/-at the rate of Rs. 960/- per month. The relevant portion of the trial Court judgment is quoted herein below:--
"In this context, I would like to mention here that it is settled principle of law that once a fair rent is fixed, it binds both the parties i.e. landlord and the tenant and the rent is to be paid accordingly. The fair rent as fixed by the Controller has to prevail over the rent fixed by agreement. Taking this aspect of the matter in view it can be safely held that in the present suit also fair rent fixed by the House Controller as mentioned above is binding upon the plaintiff and the defendant. Accordingly, the defendant should have paid rent at the rate fixed by the House Controller in BBC Case No. 328. of 1988. Admittedly, the BBC Appeal No. 29 of 1989-90 was dismissed on 1-9-1994 in default and the defendant did not file any appeal or revision against the said order of the Collector. Therefore, the order of the House Controller became final."
The trial Court further held that since the fair rent, which was lawfully payable rent, was not paid or validly remitted by the defendant to the plaintiff, the former has became a defaulter in payment of rent of the shop in question. The Court below accordingly decreed the suit for eviction and also for arrears of rent for three years.
12. Recently in the case of Malpe Vishwanath Acharya v. State of Maharashtra, 1998 (2) SCC 1 : (AIR 1998 SC 602} the Apex Court was considering a question where a landlord challenged the validity of the relevant provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, in so far as it provides that the landlord cannot charge rent in excess of the standard rent. In the writ petition, the landlord also challenged the constitutional validity of Section 5(10)(B), Section 11 (1) and Section 12(3} of the Bombay Rent Act on the ground that the restriction on the right of the landlord to increase rents which had been frozen as on 1-9-1940 or at the time of the first letting, was no longer a reasonable restriction and the said provisions had, with the passage of time, become arbitrary, discriminatory and unreasonable. The Apex Court observes that with the passage of time a legislation which was justified when enacted may become arbitrary and unreasonable with the change in the circumstances. Their Lordships further held as follows (at pages 615-616 of AIR):
"It is true that whenever a special provision, like the Rent Control Act, is made for a section of the society it may be at the cost of another section, but the making of such a provision or enactment may be necessary in the larger interest of the society as a whole but the benefit which is given initially if continued results in increasing injustice to one section of the society and an unwarranted largess or windfall to another, without appropriate corresponding relief, then the continuation of such a law which necessarily, or most likely, leads to increase in lawlessness and undermines the authority of the law can no longer be regarded as being reasonable. Its continuance becomes arbitrary."
In so far as social legislation, like the Rent Control Act is concerned, the law must strike a balance between rival interest and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, may, necessary that some protection should be given to the tenants in order to ensure that they are not exploited. At the same time such a law has to be revised periodically so as to ensure that a disproportionately larger benefit than the one which was intended is not given to the tenants. It is not as if the Government does not take remedial measures to try and offset the effects of inflation. In order to provide fair wage to the salaried employees the Government provides for payment of clearness and other allowances from time to time. Surprisingly, this principle is lost sight of while providing for increase in the standard rent -- the increases made even in 1987 are not adequate, fair and just and the provisions continue to be arbitrary in today's context."
13. As noticed above, the facts of the instant case are totally different from the facts of that decision relied upon by the opposite party. By way of recapitulation it is mentioned here that in. the instant case the tenant was inducted in the shop premises long back on a rent of Rs. 100/-. In the year 1988, fair rent was determined by the House Controller at the rate of Rs. 960/- per month. The appeal filed by the tenant has been dismissed and the order took its finality even the;. the defendants neither paid nor remitted the fair rent for about seven years and ultimately the landlord filed the eviction suit in the year 1995 for a decree of eviction on the ground of default and also claimed decree for arrears of rent for three years. The eviction suit was decreed and in appeal filed by the defendants tenant appellate Court directed the defendant-appellant-tenant to deposit the entire arrears of rent at the rate of Rs. 960/- per month and accordingly arrears of rent was deposited by the tenant. The respondent-landlord then filed an application under Section 15 of the Act praying therein that defendant-appellant may be directed to deposit month to month rent @ Rs. 960/-. In the facts of the present case I have no hesitation in holding that the ratio decided by the Full Bench in the case of N.M. Verma (supra) does not apply.
14. As noticed above, in N.M. Verma's case, the tenant was originally inducted on monthly rent of Rs. 160/- which was illegally enhanced to Rs. 200/- without taking recourse to Section 4 of the Act. Even in such cases their Lordships have held that it is the last paid rent of Rs. 200/- which has to be deposited. Their Lordships further held that the observations of the Full Bench judgment in Mahabir Ram v. S.S. Prasad, AIR 1968 Pat 415 (FB) to the effect that the order passed under Section 11A of the old Act is subject to variation, so as to make consistency with the fair rent fixed by the Controller, is not correctly made. In the instant case neither the rent originally fixed when the tenant was inducted was enhanced nor the fair rent was determined after institution of the suit or after passing of the order under Section 15 of the Act of 1982 (Section 11A of the old Act), rather fair rent was determined about seven years before the institution of the suit and the order of the Controller has attained its finality by the dismissal of the appeal by the Collector. In that view of the matter the decision relied upon by the tenant-opposite party will be of no avail. At this stage I must refer the decision of the Apex Court in the case of Union of India v. Dhanwanti Devj, 1996 (6) SCC 44 : (1996 AIR SCW 4020) where their Lordships observed (at page 4025 of AIR SCW) :--
"Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and, therefore, Judges are to employ an intelligent technique in the use of precedents."
15. Coming back to the impugned order it appears that the learned Court below although took notice of the fact that after eviction suit was decreed in favour of the petitioner-landlord, the opposite party-tenant deposited the entire arrears of rent at the rate of Rs. 960/-, but failed to appreciate that the tenant was bound to pay fair rent in terms of the order of the Controller which attained its finality. The Court below further failed to appreciate that there was nothing left for determination by the Civil Court as to what should be the rate of rent-payable by the tenant after fair rent was finally determined by the Controller that too 6-7 years before the institution of the suit. The impugned order passed by the learned lower appellate Court, therefore, cannot be sustained in law.
16. Having regard to the facts and circumstances of the case and the law discussed herein-above, I have no hesitation in holding that in an eviction suit if the landlord seeks a decree for eviction on the ground of non-payment of fair rent determined much before the institution of the suit and the said order of fair rent attains its finality, having been affirmed in appeal or in revision and if an application under Section 15 of the Rent Control Act, 1982 is filed then the tenant shall be liable to deposit arrears of rent as also current and future rent at the rate so determined by the Controller.
17. For the reasons aforesaid, this civil revision application is allowed and the impugned order passed by the Court below is modified to the extent that the appellant-opposite party shall deposit arrears of rent for the period March, 1997 to May, 1998 at the rate of Rs. 960/- per month by the 15th June, 1998. The appellant-opposite party shall further go on depositing rent at the same rate in the Court below by the 15th of the next following month. In the facts and circumstances of the case, there shall be no order as to costs.