Jharkhand High Court
Syed Abdul Rahman vs Md.Amim on 16 June, 2011
Author: Prashant Kumar
Bench: Prashant Kumar
APPEAL FROM THE APPELLATE DECREE NO. 21 OF 1996
Against the judgment and decree dated 20.1.1996 passed by 5 th
Additional Sessions Judge, Dhanbad in T.A. No. 3 of 1985 arising
out of judgment and decree dated 11.12.1984 passed by Munsif
1st , Dhanbad in T.S. No. 125 of 1983
Syed Abdul Rahman .......Appellant
Vs.
1. Md.Amin
2. Md Hassan
3(a). Md. Yasin
3(b). Md. Matin
3(c). Amna Khatoon
3(d). Zubeda Khatoon ... .....Respondents
For the Appellants : Mr. Lalit Kumar Lal
Mr. Kundan Kumar Ambastha
For the Respondents : Mr. P.K.Prasad, Sr. Advocate
Mr. Ayush Aditya
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR
17/16.06.2011: This appeal is directed against the judgment passed by 5th Additional District Judge, Dhanbad dated 20.01.1996 in Title Appeal No. 3 of 1985 whereby he dismissed the appeal and confirmed the judgment dated 11.12.1984 passed by Munsif 1st Dhanbad in Title Suit No. 125 of 1983 by which appellant/defendant was found defaulter under section 11 (1)(d) of Bihar Building ( Lease, Rent & Eviction) Control Act, 1982 ( hereinafter referred to as BBC Act ), thus directed to vacate the suit premises.
2. It appears that plaintiffs/ respondents filed a suit i.e. Title Suit No. 125 of 1983 stating therein that the appellant/ defendant was a monthly tenant under him on a monthly rental of Rs. 105 and he defaulted in payment of rent from March 1983 to July 1983 as such he was liable to be evicted from the suit premises.
3. Appellant/ defendant filed a written statement and contested the suit. It is stated that there is no agreement or time fixed for payment of rent and plaintiffs always used to collect rent at his convenience and some time accepted rent for several months at a time. He further stated that the rents of March 1983 to July 1983 had been paid to plaintiff/respondents on 2.8.1983 but plaintiff/respondents had not issued rent receipt. It is stated that appellant sent a letter under certificate of posting for issuance of rent receipt, but the same was in vein. Accordingly, it is submitted that the appellants/defendant is not a defaulter within the meaning of section 11 (1)(d) of the BBC Act, thus, the suit is liable to be dismissed.
4. It appears that learned Munsif decreed the suit vide his judgment dated 11.12.1984. Against that judgment and decree, a title -2- appeal filed bearing Title Appeal No. 3 of 1985, which was allowed vide judgment dated 5.8.1987 passed by 1st Additional District Judge, Dhanbad and he reversed the judgment and decree dated 11.12.1984 passed by Munsif 1st court, Dhanbad. Against the aforesaid judgment, a Second Appeal filed in this Court vide S.A. No. 94 of 1987 ( R) and the same was disposed of vide order dated 2.2.1990 and after setting aside the aforesaid judgment, the case was remitted to the first appellate court for a fresh decision in accordance with law.
5. It appears that learned 5th Additional District Judge, Dhanbad after hearing the appeal afresh , dismissed the appeal vide judgment dated 20.1.1996 and confirmed the judgment of learned Munsif as stated above. Against that the present appeal filed.
6. While admitting the appeal, this Court framed following substantial questions of law:-
(I) Whether the 1st appellate court has committed eror of law in not considering the direction of the remand order of this Court?
(ii) Whether the learned court below has drawn wrong inference of willful default, when the conduct of the parties were otherwise then on payment on month to month basis ?
7. It is submitted by Sri Lalit Kumar Lal, learned counsel for the appellant that this Court while remanding the case had directed the appellate court below to decide as to whether the rent receipts referred to in paragraph no. 6 of the judgment speak of contract of the parties spread over for a fairly long time or not?. It is submitted that the rent receipts Ext.-A series shows that plaintiff/respondents accepted rents of several months at a time and therefore there was an employed contract between the party for payment of rent at the convenience. It is submitted that when the plaintiffs/respondents without any objection continues to receive rents at intervals of several months, he is not permitted to spring a surprise on the tenant by starting a proceeding for eviction. Learned counsel for the appellant, relied upon a judgment of Hon'ble Supreme Court in Rashik Lal and others Vs. Shah Gokul Das reported in AIR 1989 SC 920. Accordingly, it is submitted that the impugned judgment cannot be sustained in this appeal and suit of eviction on the ground of default is liable to be dismissed.
8. Sri P.K. Prasad, Senior Advocate appearing on behalf of plaintiff/respondent submits that learned appellate court below had considered Ext.-A series as well as the provisions contained under the BBC Act and had specifically given a finding that only by accepting -3- rents of several months at a time, it can not be presumed that there was any agreement about the payment of rent at the convenience of party. Thus defendant/appellant required to pay rent by the end of next month as per the provision of BBC Act. Accordingly, it is submitted that 1st substantial question of law does not arise for determination in this case. So far the second question of law framed in this case, it is submitted that the law has already been settled by a Division Bench of Patna High Court reported in Balwant Singh and others Vs. Anand Kumar Sharma and others reported in 2000(1) PLJR 975 wherein it has been held that section 11 (1)(d) of BBC Act mandates payment of rent within the time fixed by the contract and where there is no such contract by the last date of the month next following, BBC Act does not envisage any implied contract for payment of rent at the convenience of tenant. Once a tenant incurs liability for being evicted on the ground of default, the payment of rent thereafter and its acceptance by landlord does not constitute waiver of his right to seek eviction of the tenant or creation of new tenancy. Accordingly it is submitted that the 2nd question of law also not required to be answered in this appeal as the same had already been answered in negative by a larger bench. Accordingly, he submits that the appeal be dismissed.
9. Having heard the submission, I have gone through the record of the case. From perusal of paragrpah no. 6 of the appellate court judgment, I find that the appellate court had considered all the rent receipts and had given a finding that the past history of payment of rent does not show any consistency, because sometime the rent was paid for eight months, some time for seven months, some time for three months and sometime month to month. Learned appellate court further stated that the law requires that the payment of rent should be made as per contract for tenancy and if there is no contract, then rent should be paid by the end of next month. He further gave finding that the payments made by defendant/appellants do not show that there was any implied agreement about the payment of rent. Accordingly, he held that defendant/appellant is required to pay rent by the end of next month. Aforesaid finding given by the appellate court appears to be in consonance with the direction given in the remand order.
10. Thus, I find that the appellate court has not committed any error in this respect and had given its finding as per the order of remand passed by this Court
11. Now coming to the second question, it appears from Ext.-A series that there was no consistency in payment of rent , some time it was paid on month to month basis and sometime the rents of several -4- months accepted at a time. Sri. L.K. Lal submits that there is no evidence to show that plaintiff/respondent accepted rents of several month at a time under protest. Likewise there is no evidence to show that he warned appellant to pay rent on month to month basis. Accordingly, he submits that in the absence of any objection it will be presumed that there was an implied agreement between the party for payment of rent as per the convenience. For the aforesaid proposition, Sri Lal strongly relied upon the judgment of Hon'ble Supreme Court in Rashik Lal Case ( Supra). It is worth mentioning that in Rashik Lal Case the Hon'ble Supreme Court was dealing with the provisions of CP and Berar Letting of Houses and Rent Control Order (1994) which deals with tenant who are habitually in arrears with rent. Under the said law there is no provision which fixed time for payment of rent. In paragraph no. 7 of aforesaid judgment, their Lordship had stated that "It is significant to note that the condition mentioned in rent control order is different from the condition in several other statutes where mere non payment of rent for a particular period has been provided as an adequate ground for eviction of the tenant"
12. In the instant case section 11( 1)(d) of BBC Act apply, which runs as follows:-
Eviction of tenants.-(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 ( Act XIV of 1947), and to those of section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:-
(a)........
(b)......
( c).......
(d) where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16;
Bare perusal of aforesaid provision shows that if a tenant is in arrears of rent equivalent to two months, he is liable to be evicted from the tenanted premises. The aforesaid provision further provides that in the -5- absence of contract, if the rents of two months not paid by the last date of next following month, then the tenant is held to be in arrears of rent, thus liable to be evicted as per the provisions contained under section 11 (1)(d) of BBC Act.
13. Thus, the provision contained under the BBC Act is different from the provisions of CP and Berara Control Order, therefore, ratio of Rashik Lal Case will not apply in the instant case.
14. The aforesaid question was considered by a Division Bench of Patna High Court in Balwant Singh and others Vs. Anand Kumar Sharma and others ( Supra). In that case it has been held that BBC Act does not envisage any implied contract for payment of rent at the convenience of tenant. If the tenant has not paid rent for two months within the time fixed by section 11 (1)(d) of BBC Act, he is in arrears of rent, therefore, he is liable to be evicted. In the said judgment, it is also held that if the landlord later on accept rents tendered by the tenant the same will not constitute a waiver of his right to seek eviction of the tenant. It is worth mentioning that the aforesaid Division Bench judgment of Patna High Court was delivered prior to coming into force of Bihar Re-Organization Act, 2000, thus, the same is binding precedent. It is also pertinent to mention that aforesaid judgment has been affirmed by a three Judges Bench of Hon'ble Supreme Court vide judgment reported in AIR 2003 SC 1637.
15. Thus, second substantial question of law has already been set at rest by a Division Bench of Patna High Court, which was affirmed by Hon'ble Supreme Court.
16. In view of the discussion made above, there is no merit in this appeal, the same is dismissed.
( Prashant Kumar,J.) Jharkhand High Court, Ranchi Dated 16 /06/2011 Sharda/NAFR