Patna High Court
Anisur Rahman And Anr. vs Sardar Jogender Singh @ Jogendra Singh on 26 August, 1992
Equivalent citations: 1993(1)BLJR235
JUDGMENT
B.K. Roy and R.N. Prasad, JJ.
1. The plaintiffs, of a suit filed for eviction on the grounds of expiry of fixed term tenancy and personal necessity, assail validity of an order rejecting their prayer to direct the defendant-Opposite Party herein to deposit rent as fixed by the House Controller in a fair rent proceedings initiated under Section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act) after modifying an earlier order under Section 15 of the Act directing the Opposite Party to deposit the last paid rent.
2. This application was admitted to be heard by a Division Bench. When it was placed before a Division Bench consisting of S. Roy and R. N. Sahay JJ., the correctness of a Five Judges, Full Bench decisions of this Court in N. M. Verma v. U. N. Singh, reported in 1977 BBCJ 662 : 1978 BLJR 32 : was doubted and the records were directed to be placed before Hon'ble the Chief Justice for constituting a larger Bench, preferably of seven Judge. Hon'ble the Chief Justice after pointing out that the question is whether the view of the subsequent legislation introduced in 1982 Act, the law laid down in N. M. Verma (supra) which was decided before its introduction, is still applicable on the facts and in the circumstances of the present case and sent back for hearing before a Division Bench consisting of S. Roy, J. The office tried to place it before such a Bench but Roy, J. gave verbal instructions to await its listing. Thereafter Roy, J. retired and this case has been placed before us.
3. It is not necessary to state the facts except that by a earlier order under Section 15 of the Act, the defendant was directed to deposit last rent paid by him which was sought to be modified but rejected in view of the ratio laid down in Verma,s case (supra) and other decisions reported in 1983 PLJR 439 : 1985 PLJR 444 and 1990 BBU 55.
4. Sections 11-A, 13 and 15 of the 1947 Act, 1977 Act and the Act run as follows :
Section 11-A . of 1947 Act.
11-A Deposit of rent by tenants in suits for ejectment.--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 arears of rent, if any and report, after giving an opportunity to the parties to be heard may make an order for deposit of rent at such rate as may be determined month by month and the arreas of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order, the rent at any such rate for any month by the 15th day of the next following month, the court shall order the defence against ejectment to be struck of and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejedice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant.
Section 13 of 1977 Act.
Deposit of rent by tenants in suits for ejectment.--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 arears of rent, if any and the court, after giving an opportunity to the parties to be heard, may make order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the rent at such rate for any month by the 15th day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he has not defended the claim of ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant.
Section 15 of 1982 Act.
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 for 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 15th 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 witness.
(2) If in any proceeding referred to in Sub-section (1) there is any dispute as to the persons to whom the rent is payable, the Court may direct the tenant to deposit in Court the amount payable by him under Sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the court decides the dispute and makes an order for payment of the same.
(3) If the Court is satisfied that any dispute referred in Sub-section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in subsection (1).
5. Mr. Eqbal, learned Counsel for the petitioner, submits as follows : (i) N. M. Verma,s case (supra) in which Section 13 of the 1977 Act was considered, requires re-consideration inasmuch as the decision in Sobrati Rangrez v. Ganga Prasad reported in 1960 BLJR 661 which considered Section 11-A of the 1947 Act, was not considered therein : (ii) In view of the provisions of Section 16 of the Act, which was not in existence earlier in 1947 Act and 1977 Act, the petitioners were justified in making a request to direct the opposite party to deposit the rent as fixed by the House Controller and the court below has committed a jurisdictional error in not allowing that prayer of the petitioners and in making Section 16 redundant.
6. We see no merit in either of the submissions.
7. Section 11-A of 1947 Act was considered in Sobrati Rangrez (supra) which was considered in the three Judges' Full Bench Judgment of this Court in Mahabir Ram v. Shiva Shanker Prasad and Ors. which was subsequently overruled in Five Judges' Full Bench judgment in N. M. Verma's case (supra) L. M. Sharma, J., with whom K. B. N. Singh, C. J. and B.S. Sinha, J. agree held in paragraphs 8 and 10 as follows :
8. The plain grammatical meaning of the term does not admit of any serious controversy. If in a given case, the rent has been actually paid by the tenant and received by the landlord at a particular rate, the same has to be accepted by the court for the limited purposes of Section 11-A of the Act. It has to be kept in mind that such an order does not finally determine the right and liability of the parties. The equities between them have to be finally settled only by the ultimate judgment in the case. This is the reason that the landlord has not been given an unqualified right to withdraw the deposited rent during the pendency of the litigation nor can he realise the amount by execution. On an application for that purpose, the court may permit him to withdraw amount if deposited. In the present case, the rent was paid by the petitioner at the rate of Rs. 200/-per month for more than two years before the suit was filed. If he is directed to continue to do so, subject to the final settlement of his rights, it is difficult to conceive that it will lead to a situation not warranted by the Act. This interpretation does not lead to any absurdity or repugnancy or inconsistency with the other sections of the Act and no reasons have been given on behalf of the petitioner to reject the straight forward and plain grammatical meaning of the words. A comparison with the language of clause (b) of Section 11(1) of the Act can be usefully made. One of the five grounds on which a tenant can be evicted is "where the amount of two months' rent is lawfully paid by the tenant and due from him is in arrears." In Section 11-A, which was introduced by an amendment, the Legislature decided not to use the word 'rent lawfully 1993(41)(1)] payable' instead the rate of rent was mentioned 'at which it was last paid'. The difference is too eloquent to be ignored.
10. It was contended on behalf of the petitioner that a literal interpretation of the language of Section 11-A of the Act should be rejected as it will lead to undesirable results in two cases, namely, (i) where after the commencement of the tenancy, no payment of rent has ever been made and (ii) in a case where fair rent has been fixed under the provisions of the Act at a rate different than at which rent has been last paid. There does appear to be a lacuna in the section inasmuch as is does not make provisions for these cases, but it must be the concern of the Legislature to make appropriate amendments and not for a court of law to discharge the legislative functions in the garb of interpreting the section. At the same time, it must also be pointed out that the consequence of the literal interpretation does not effect any party very seriously. In a case where the tenant has never paid the rent at all, the landlord can realise the same by getting a decree in a properly constituted suit for the purpose. If the fair rent has been fixed at a lower rate then that "at which it was last paid", the only consequence of not making the deposit under Section 11-A of the Act will be the striking off the defence. The amount directed to be deposited under Section 11-A cannot be realised by execution and, therefore, there is no inherent impugnancy between the interpretation I am putting on Section 11-A and any other provision of the Act including Section 4. What Section 11-A is trying to achieve is to maintain the status quo in regard to the rate under the pains of rejection of the written statement. No substantial rights are being dealt with. I therefore, hold that the observations of the Full Bench in paragraph 25 (b) of the judgment in Mahabir Ram v. S.S. Prasad to the effect that the order passed under Section 11-A of the Act is subject to variation, so as to make it consistent with the fair rent fixed by the Controller, is not correctly made and the decisions of this Court following the above observation including those in Manoranjan,Nath Patra v. Kashi Prasad Sha and Sashidhar Das v. Harihar Prasad are also not correct. I agree with the view taken in S.M. Khali v. Akhauri Sitaram. As a result-I find that there is no error in the impugned order directing the petitioner to deposit the rent at the rate of Rs. 200/-per month.
This was further followed by a Division Bench in Smt. Bidhotoma Devi v. Sri. Deoki Sao and Anr. reported in 1985 PLJR 444, wherein in paragraphs 4 and 5 it has been held as follows:
4. It has been contended by Mr. R. S. Chatterjee, appearing in support of the application that in view of the fair rent having been fixed in this case at Rs. 9/-per month, the petitioner cannot be asked to pay to the plaintiff landlord the rent at a higher rate. This argument, to my mind, cannot be accepted in face of the decision of the Full Bench in N. M. Verma v. U. N. Singh, 1977 BBCJ 664 : 1978 PLJR 32.
5. In N. M. Verma's cass, the petitioner was inducted as a tenant in the building in question on a monthly rental of Rs. 160/-which was later enhanced to Rs. 200/-per month. Relying on the provisions of Section 4 of the Building Control Act, the petitioner in that case contended that the enhancement in the rent was illegal and the petitioner, therefore, could not be directed to deposit the higher amount which was not lawfully payable. The argument was overruled and it was held that Section11-A of the earlier Act (corresponding to Section 13 of 1977 Act: required the tenant to deposit the rent at a rate at which it was last paid. If the rent has been actually paid by the tenant and received by the landlord at a particular rate, the same has to be accepted for the limited purpose of the section. It has pointed out that an order to that effect was interim in nature subject to the equities between the parties to be finally settled at the time of disposal of the suit. Deposit of the rent by the tenant in the suit under this Section is not tantamount to payment to the landlord and the landlord, therefore, has not been given an unqualified right to withdraw the deposited money during the pendency of the litigation. On an application for that purpose, the Court has to pass fresh orders and, for that purpose, the Court may in its discretion allow only partial withdrawal in a case where fair rent is fixed. Although on the facts, the present case is not identical to the Full Bench case, the observations in paragraph 8 of the judgment are fully applicable. It must, therefore, be held that even in cases where fair rent is fixed, the tenant will have to deposit the rent at a rate at which, as a matter of fact, it was last paid. In the present case, the learned Munsif has recorded a finding that the rent was last paid at the rate of Rs. 60/-and not at the rate of Rs. 9/-. In that view, the order under revision appears to have been correctly passed.
In Ishwari Khetan v. State of U. P-, (vide paragraph 19) the Supreme Court laid down to the effect that if there is conflict between two judgments, a later larger Bench would impliedly overrule to former to the extent of conflict. Earlier also in Jain Kaur v. Sher Singh (vide paragraph 10) the Apex Court had laid down that "when a Full Bench decides a question in a particular way, every previous decision which had answered the same question in a different way, cannot but be held to be wrongly decided".
9 We also find that a similar argument advanced before a learned Single Judge of this Court in Civil Revision No. 12 of 1988 (R) was overruled holding that under Section 15 of the Act, the tenant has to deposit the last paid rent and not the fair rent. Yet another learned Single Judge in Shri Chiranji Lal Poddar v. Messers. Universal Homeopathic Medical College and another reported in 1989 PLJR 467 held to the same effect. Section 15 of the Act was also considered in a recent 3 Judges Full Bench judgment in Dr. Sachidanand Sinha \.The Collector, Patna and Ors. reported in 1989 PLJR 1141 (vide paragraphs 11 and 12) and it was held that what is required to be paid under that provision is the last paid rent. We need only to re-produce paragraph 12 of the aforementioned Full Bench judgment:
12 The question whether under sub-Section (1) of Section 15 the Court concerned has power to determine the rate of rent at which it was last paid has been examined by this Court as well as the Supreme Court. It has been held that the Court before passing an order under Sub-section (1) of Section 15 directing the tenant to deposit rent at the rate it was last paid can make an enquiry for determination as to at what rate the rent was last paid. Reference in this connection may be made to the case of Ganesh Prasad Sah Kesari and Anr. v. Lakhmi Narayan Gupta speaking about the scope of Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which has been replaced by Section 15 of the present Act and the relevant part with which we are concerned being virtually identical, it was said as follows :
It also enables the Court to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of Therefore, where eviction is sought on the ground of non-payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay. In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading he will be directed to deposit the rent at the rate claimed by the landlord, if the court has no power to determine rate of rent at an interim stage. Such power is conferred by Section 11-A of the Court.
We fully agree with the views expressed in those judgments and do not see any thing to doubt their correctness on the ground that Verma's case has no application as it has decided 1977 Act.
10. Section 16 of the Act has also been subject-matter of interpretation by the aforementioned Full Bench Dr. Sachidanand Sinha's case (supra) (vide paragraphs 11,13,15,16,17,19 to 22,27 and the conclusion recorded in paragraph 24). We may further point out that this Full Bench has also taken into account the discrepancy in Section 16 of the Act in the Hindi and English texts and held proper to proceed to construe the Hindi text of Section 16 of the Act. Section 16 cleary operates in regard to a different field, namely, appeals and revisions preferred against orders fixing fair rent under Section 5 of the Act and has nothing to do with Section 15. Section 23 of the Act deals with execution of the orders passed under Section 5 or in appeal under Section 24 or in revision under Section 26 of the Act. Section 28 (2) of the Act contains a penal provision in regard to non-compliance of the directions made under the Act We do not see any merit in the submission that provisions of Section 16 of the Act have been rendered redundant by the Subordinate Judge. We have also been informed that the order of the House Controller is under challenge in appeals filed by both parties described in paragraph 7 of the Plaintiff's petition as contained in Annexure-2 of the Civil revision application. We do not want to make any observation in that regard as we are rightly not called upon to make any observation.
11 We also proceed to dispose of a petition, which has been filed today i e to say on the second day of our hearing, by four persons praying to add them as co-petitioners on the ground that they have purchased the suit property by registered sale deeds and that they also got their names mutated in the Municipal Corporation and in the Circle Office and that they had also filed an application in the court below for adding them as Plaintiffs No. 3 to 6 on 13-8-1992. We had heard learned Counsel for the parties in regard to the prayer made in the petition. However, since the aforementioned persons have already filed an application for adding them as party in th? suit itself, we do not consider expedient at this stage to add them as petitioners. It will be open for the court below to add them as co-plaintiffs when they press their petition before it.
12. For the reasons stated above, we do not find any merit in this Civil revision application. It is accordingly dismissed but in the peculiar facts and circumstances of the case, we make no order as to cost.
13. We also direct the court below to dispose of the suit as it was filed urder Section 14 (4) of the Act which requires speedy disposal.