Patna High Court
Raghubir Prasad vs Surya Narayan Gupta on 8 November, 1984
Equivalent citations: AIR1986PAT17, 1985(33)BLJR719, AIR 1986 PATNA 17, (1985) PAT LJR 346 1985 BLJR 719, 1985 BLJR 719
ORDER S. Shamsul Hasan, J.
1. This is an application by a tenant assailing the order passed by the trial Court in a suit for eviction on the ground available to the plaintiff under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, (hereinafter referred to as 'the Act) and being tried under the special procedure provided under Section 14 of the Act.
2. The Court below has disposed of an application by the plaintiff-landlord under Section 15 of the Act and has directed the payment of arrears of rent and current rent with the consequences mentioned in Section 15 of the Act on default of compliance of the order.
3. Mr. Kalika Nandan, learned counsel for the petitioner, has submitted that Section 14 of the Act, being a special procedure, under which the claim of arrears of rent cannot be claimed, relief under Section 15 of the Act cannot be granted. He has also relied on Section 13 of the Act which protects Section 14 from the effect of other enactments and the other clauses of the Act itself. Mr. Kalika Nandan further submitted that since no claim for arrears of rent has been made in the plaint of the suit and it has been specifically stated that a fresh suit for that purpose shall be filed, the defendant could not state his stand with regard to that claim. Further, if the landlord withdrew the amount and it was subsequently found that there were no arrears, the tenant will be faced with numerous procedural wrangles in obtaining the refund of the money so taken away by the plaintiff.
4. Mr. Guneshwar Prasad, learned counsel appearing on behalf of the landlord opposite party, submitted that Section 15 of the Act has used the expression that if a landlord files a suit for recovery of possession of the tenanted property and the ejectment is contested by the tenant, then certain rights are bestowed upon the plaintiff under that Section which means that Section 15 of the Act is very wide in its amplitude and covers all the grounds for eviction provided under Section 11 and is not controlled by special procedure provided Under Section 14 of the Act. 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 and 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.
5. Harmonising the provisions of sections 14 and 15 of the Act, therefore, I feel that though the Court is precluded from ordering payment of arrears, it can direct the payment of current rent as envisaged in Section 15 of the Act, because in clause 15(1) of the Act, payments of current rent and arrears have been separated. That clause may be usefully set out as follows : --
"15(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 the 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 landlord's witness."
In Section 15 of the Act the use of the words recovery of possession' and 'ejectment' indicate that this Section applies to all the grounds stated in Section 11 of the Act, but to the extent applicable. A clear reading of this Section indicates that a claim for monthly rent and that of arrears of rent has been separated by the words 'and also' and constitute two distinct and severable claims. A landlord claiming the payment of month to month rent may or may not claim arrears and even becomes disentitled to claim arrears beyond the period of limitation. It is, therefore, patent that since the two reliefs can be bifurcated as far as a suit for relief obtainable under the procedure provided under Section 14 of the Act is concerned, a prayer for month to month rent can be made and in a suit for relief on the grounds provided under Section 11 ofthe Act but which is not triable under Section 14 both the reliefs under Section 15 can be invoked. There should, however, be no difficulty in claiming current rent by applying appropriate part of the clause of Section 15 of the Act.
6. I, therefore, allow this application to the extent that the claim for arrears of rent allowed by the Court below, not being in accordance with law, is struck down. The order to pay current rent, however, is upheld on the same terms and conditions mentioned by the court below. It is stated that the arrears have already been deposited. The Court below will adjust that amount towards the current rent and ascertain whether it will spill over to any future period. After that amount is exhausted, it will be incumbent upon the petitioner -- defendant to pay the monthly rent as directed by the Court below on the conditions and consequences set out by it. I may clarify that the current rent will be calculated from the month in which the suit was actually instituted.
7. Before concluding, I may state that if any dispute is raised regarding the quantum of the rent, in cases where it becomes necessary, the court naturally will be required to ascertain the rent last paid as stated in Section 15 of the Act. In this case the court below having already done so, the question becomes hypothetical and I do not interfere with this findings. It is needless to say that the plaintiff will be entitled to withdraw the current rent paid by the petitioner-defendant. The application is allowed in part as above. There shall be no order as to costs.