Patna High Court
Bibi Amna Khatun And Ors. vs Zahir Hussain And Anr. on 20 September, 1979
Equivalent citations: AIR1981PAT1, AIR 1981 PATNA 1, ILR (1979) 58 PAT 825, 1980 BLT (REP) 126, 1980 BBCJ 404, 1980 BLJR 592, 1979 ILR (PAT) 58 825, (1981) 1 RENCR 240, (1980) PAT LJR 208, (1981) 1 RENCJ 426
JUDGMENT Hari Lal Agrawal, J.
1. This Civil revision application having been referred to a larger Bench by a Division Bench has been placed before us. The Division Bench has expressed its doubt regarding the correctness of a Bench decision of this Court in the case of Ranchhod Lodha v. Madhabji Kanji (AIR 1974 Pat 211).
2. The provision of law falling for our consideration is Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which has since already vexed this Court time without number. This time we have to consider the effect of withdrawal of the rent deposited out of time by the landlord on his right to get the defence of the tenant against his ejectment struck off.
3. Before adverting to the question posed before us, I will very briefly state the relevant facts. The opposite party instituted a title suit for eviction of one Md. Ibrahim, the ancestor of the petitioners (who were substituted in the lower appellate Court) from a house in the town of Chapra. The suit having been dismissed by the trial court the opposite party filed the appeal. Thereon 1-5-1967, an application under Section 11A was filed by the opposite party, which was allowed on 10-1-1966. The tenant was directed to deposit the arrears of rent from January, 1966 to April, 1967, amounting to Rs. 1,040/- at the rate of Rs. 65/- per month and the current and future rents by the 15th day of each succeeding month in accordance with the said provision. Ibrahim deposited the arrears as also the monthly rents up to the month of December, 1969. He, however, died on 10-1-1969 and the petitioners were substituted in his place by an order dated 15-7-1969. They appeared in the appeal on 10-9-1969 after service of the appeal notices and on that very day petitioners Nos. 1 and 2 made an application for permission to deposit the rent for the months of March to August, 1969, which could not be deposited on account of death of the original tenant. This prayer was allowed and accordingly they deposited the rent for the said period and went on depositing the subsequent rents as well. In this case, however, we are concerned with the rent for the months of February, 1970 to October, 1971, which was deposited as under:
Month for which rent was deposited date of deposit Date of withdrawal by the landlord.
February, 1970 31.3.1970 | | } | | 18-8-1970 March & April, 1970 24.4.1970 May & June, 1070 23.8.1970 Nov. & Dec., 1970 22.12 1970 | } | 7-5-1971 Jan. & Feb., 1971 20.3.1971 July & Oct., 1971 1.11.1971 6-2-1972 The landlord withdrew the deposits on the dates indicated in the above chart. He had, however, filed an application on 18-11-1971, i. e., after the first two withdrawals, for striking off the defence of the tenant on the ground that the deposits were made after delay and not in ac-cordance with the law. The petitioners resisted the prayer but the court of appeal below, by its order dated 9-8-1975, allowed the application and struck off the "defence of the substituted respondents against ejectment" on the ground that "they had defaulted seven times in depositing the arrears of rent". The petitioners are challenging this order.
4. When the case was placed before the Division Bench, reliance was placed on behalf of the petitioners on the aforesaid Bench decision of this Court in Ranchhod Lodha's case (AIR 1974 Pat 211) where it was held that the plaintiff-landlord having withdrawn the rent for the period in question, could not make a grievance of the non-compliance of the order under Section 11A. The Division Bench, however, felt that inasmuch as Section HA itself contemplates for withdrawal of rent by the landlord without prejudice to his right to claim decree for ejectment, the withdrawal of the rent should not also prejudice his right to pray before the court for striking off the defence against the ejectment.
5. At the outset I must say that the correctness of the decision in Lodha's case cannot be doubted on the reasoning expressed by the Division Bench and I would do better to deal with this aspect of the matter before I proceed to advert to various other contentions that were raised during the course of hearing of this application. In order to appreciate the points Section 11A itself may be quoted:
11A. "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 arrears of rent, if any, and the Court, 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 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 order the rent at any such rate for any month by the fifteenth day of the next fol-
lowing 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 had not defended the claim to 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."
I have already considered this question at some length in the case of Ganesh Lal v. Md. Ismail (AIR 1976 Pat 223) and have held that by this provision a safeguard has been provided to a landlord that the acceptance of rent would not wipe out his cause of action that he might have under Section 11 (1) (d) of the Act. The Supreme Court also in the case of Radha Kishan Sao v. Gopal Modi (AIR 1977 SC 1217) observed that the penalty of striking out defence for non-compliance of an order under Section 11A has to be kept distinct from the grounds of eviction permitted under Section 11 of the Act.
6. The question of 'waiver', however, was canvassed before us by learned counsel for the landlord-opposite party from a different angle and the argument was that inasmuch as the second part of Section 11A was mandatory in nature and a duty was cast upon the court itself to strike out the defence in case the order to deposit the rent was not complied with, the principle of 'waiver' would not apply since any act of the parties would not relieve the court from its duty to pass the necessary orders regarding striking off the defence in question.
7. That the provisions of Section HA are mandatory in nature, however, cannot be disputed as this position has been firmly recognised by various authorities of this Court; the earliest in point of time being the case of Deokaran v. Daulat Ram (1960 BLJR 686). Ahmad, J., in this case pointed out that Section 11A consists of two sub-parts. The first sub-part confers a discretion to the Court to make or not to make an order for deposit of rent as may be determined by his as well as the arrears, if any: and the second part pro-vides the consequences which are to follow on the failure of the compliance with the order, if any, in the first sub-part, which was mandatory in nature. This view has been followed in the following cases:--
(1) Snehes Mitter v. Mrs. Neematullah Ehsan Ahmad (1964 BLJR (Notes). p. 95) (2) Nagina Ram v. Bishwanath Prasad Khemani (1964 BLJR 197) and (3) Ganga Prasad v. Mahendra Prasad (1967 BLJR 53).
8. In my opinion, simply because the the second part of Section 11A is mandatory in nature, will not rule out the application of the principle of 'waiver', if once the correct scope of this maxim is appreciated and understood. Although the desired assistance was not rendered at the Bar, I have taken some pains to examine the proposition in its true perspective with reference to the facts of the present case.
9. The essence of waiver is 'estoppel' and where there is no 'estoppel', there can be no 'waiver', the connection between 'estoppel' and 'waiver' being very close. But in spite of that, there is an essential and fundamental difference between the two and that is that whereas estoppel is a rule of evidence, waiver is a rule of conduct. The accepted connotation of 'waiver' is that to constitute waiver there must be an intentional relin-quishment of a known right or the voluntary relinquishment or abandonment of an existing legal right and a conduct which warrants an inference of the relinquishment of a known right or a pri-vilege (see AIR 1959 SC 149).
There is, however, a tendency to mix up 'waiver' and 'estoppel', as a single idea, although the one has apparently reference to a man's conduct and the other to the legal consequence of that conduct. The principle underlying both these maxims is the same, namely, that a party will not be permitted to approbate and reprobate or, in other words, to blow hot and cold, in respect of the same matter. This is the underlying principle behind the maxim 'waiver'.
I may now refer to a few authorities where the application of waiver has been considered, in order to bring home my point of view. The principle that has been decided by those authorities, if I may briefly put it here, is that where a right or privilege guaranteed by law rests in the individual and is primarily intended for his benefit and does not infringe the right of others, it can be waived provided such waiver is not forbidden by law and does not contravene any public policy. This principle was recognised by this Court also in the case of Sashi-bhusan Prasad Singh v. Dalip Narain Singh (AIR 1936 Pat 75) and then again in the case of Jogendra Missir v. Ram-nandan Singh (AIR 1968 Pat 218). The Supreme Court also in the case of Basheshar Nath v. Commr. of Income-tax, Delhi and Rajasthan (AIR 1959 SC 149) made a similar observation. Maxwell in his Interpretation of Statutes, 11th Edition (1962) at page 376, has also enunciated the same principle for applying this principle of estoppel.
10. Section 11A was inserted in the 1947 Act by Bihar Act 16 of 1955 and it cannot be questioned that it was for the sole benefit of the landlords.
The Legislature, however, did not contemplate that a tenant can make deposits even beyond the prescribed time. If a tenant makes any deposit out of time, it is obvious that such deposit will be invalid and would not inure to his benefit. In other words, delayed deposits per se would not protect the tenant from the pain of his defence being struck out. The law permits a landlord to withdraw the deposits which are made in terms of the order under Section 11A without any prejudice to his right to pursue his suit and claim a decree for eviction. This right to withdrawal is certainly referable only to such deposits which are valid being strictly in terms of the requirement of Section 11A. The landlord is, therefore, not legally entitled to lay his hands on those deposits which are made out of time. Therefore, by making an application for withdrawing such deposits, certainly he derives an advantage which is not due to him. The landlord therefore, instead of availing the privilege of telling the court of the default and asking it to strike out the defence of the tenant, by availing the privilege elects to pocket the money. In Lodha's case (AIR 1974 Pat 211) as well as some earlier unreported decisions of this Court to which I shall advert later, it has been consistenly held that withdrawal of such deposits by a landlord would disentitle him to question the invalidity of the deposits. It is true that in none of those cases there is much discussion regarding the application of the principle of waiver, but this principle has been applied in all those cases and for the discussions already made above, I have got no manner of doubt that striking out of defence does not cast any public duty on a court, nor does it contravene any public policy. The striking out of the defence is purely intended for the benefit of the landlord and, therefore, it can be waived. Taking any other view would give rise to various anomalies. I will state some of them. Take a case where the landlord fails to press for striking out the defence and the defence is not struck off and the suit is finally disposed of on merits; can it then be said that the decree is not binding and executable ?
In somewhat similar situation the Calcutta High Court in the case of Chotalal Shaw v. Ram Golam Shaw (AIR 1975 Cal 436), where the landlord did not inform the trial court for striking out the defence and a contested decree was passed in the suit, but pressed for striking out the defence in appeal, rejected the prayer and held that as the right and privilege might be waived by the parties; in whose favour the provision of law stands, the failure of the landlord to exercise his right was an act of waiver in this case.
11. Such instances of waiver can be multiplied by any number. For example the right of notice under Section 80 of the Code of Civil Procedure mentioned therein. It was held by the Judicial Committee in the case of Md. Aslam Khan v. Khalilul Rehman (AIR, 1947 PC 97), which has been followed by this Court in several cases, that the privilege can be waived by the authority concerned. Similarly, it was held in the case of Gadadhar Ghosh v. Midnapur Jamindari Co. (27 Cal LJ 385) : (AIR 1918 Cal 397) long back that if a landlord withdraws the amount deposited by the transferee of a non-transferable holding to set aside a sale under Section 310 of the Code of Civil Procedure, 1882 (now corresponding to Order 21 Rule 89 of the 1908 Code) without raising any objection, he was not thereafter permitted to plead that the transferee did not by his purchase, acquire a valid title to the holding. Similarly, instances of waiving the privilege for want of notice under Order 21, Rule 22 or any invalidity in effecting the attachment or holding the sale as provided under various provisions of Order 21 of the Code can be waived, as they are all for the personal advantage of the judgment-debtor and do not offend any public policy as such.
12. I will now, on the other hand, illustrate some cases where the principle of waiver will not apply (1) Privilege conferred on a judgment-debtor by Section 51 of the Code (See AIR 1968 Pat 218 : Jogendra Missir v. Ramnandan Singh); (2) objection with respect to jurisdiction of a Court where there is none, and the like (see AIR 1936 Pat 75 -- Supra).
Before Lodha's case (AIR 1974 Pat 211) also, two learned Judges of this Court sitting singly in the cases of (1) Shankar Lal Hazarika v. Kanhailal (C. R. No. 183 of 1960 decided on 9th May, 1961 by Untwalia, J.) and (2) Motilal Tewari v. Prabhu Dayal Agrawalla (C. R. No. 820 of 1962 decided on 4th January, 1963 by R. K. Choudhary, J.), had held that such withdrawal by a landlord would amount to a waiver of his right to apply for striking out the defence of the tenant.
In the case before Untwalia, J. the arrears of rent, which were directed to be deposited within 15 days from the date of the order under Section 11A, were deposited beyond two days thereof. The landlord, however, withdrew the said amount. The tenant committed a further default in depositing the rent for the month of September, 1960. On 7th of November, 1960 the landlord filed a petition making a complaint of the above defaults and prayed for striking out the defence of the tenant against his ejectment. The trial court allowed the application and struck off the defence on the above account, namely, for the default in the month of September, 1960. Against that order the tenant came to this Court and filed a revision. The application was admitted by R. K. Choudhary, J. on 16-12-1960 and further proceedings in the court below were stayed. On the next day, i. e. on 16-12-1960, the landlord had got his payment order passed for withdrawal of the rent for the month of September as well as for subsequent months. When the application came for final hearing before Untwalia, J., the learned Judge while considering the effect of the withdrawal of the aforesaid amount by the landlord held as follows :--
"It is obvious that this permission to withdraw the deposited rent can be obtained only if the amount is deposited within the time specified in the section or if the landlord accepts it to be so. If the amount is not deposited in time or is not accepted as such, the defence against ejectment is to be struck out and, in that event, the landlord is not entitled to apply for permission to withdraw the amount deposited late. On the facts and in the circumstances of this case, I am of the view that the opposite party by applying for permission to withdraw the amount of Rs. 294.75 N. P. has accepted the deposit as within time and, even though the defence was rightly struck out by the learned Munsif on the 21st November, 1960, I think, I shall be justified in interfering with that order on the ground of the subsequent action of the landlord, especially when, as stated above, the application in revision had been admitted and further proceedings in the court below had been stayed prior to the passing of the payment order."
It may have to be noticed that the withdrawal was subsequent to the striking out of the defence by the trial Court. In the next case before Choudhary, J., the tenant had made delay in depositing the rent for the month of February, 1961, which was instead of being deposited by the 15th of March, was deposited on the 18th of March. The tenant made further deposits till December, 1961 which were all in time. The deposits made up to December, 1961 were withdrawn by the landlord on 28th of February, 1962 and thereafter when the case was going to be taken up for hearing on 1-8-1962 he made an application for striking out the defence for the default committed by the tenant in depositing the rent for the month of February, 1961, as indicated above. His prayer having been allowed, the tenant came to this Court.
Choudhary, J. set aside the order of the trial court striking out the defence on taking the following view of the matter:
".....no doubt, the order of the Court below.....was violated, by not making the deposit on the 15th of March, 1961, and as the result of such violation the defence of the petitioner was liable to be struck off....., the subsequent events, if taken into consideration, are enough to disentitle the plaintiff to claim his right of getting the defence of the petitioner struck off.....The plaintiff thus took advantage of the deposits by withdrawing the same, although, according to him, the deposit made on the 18th March, 1961, could not be in compliance of the statute. He having taken advantage of such deposits..... is estopped, by his conduct from challenging the validity of the deposit....."
The learned Judge further laid down that it was not open to the plaintiff to claim his right of getting the defence of the petitioner struck off as it must be presumed that he withdrew the rent "accepting all the deposits to be valid deposits".
13. I myself have also taken a similar view in the case of Fakira Sah v. Nageshwar Prasad Yadaw (C. R. No. 1132 of 1974 disposed of on 31-10-1975) following the Bench decision of this Court in Lodha's case.
In Lodha's case (AIR 1974 Pat 211) before the Division Bench, the deposit of rents for the months of January to April, 1970 was made on 19th February, 1970. This amount was withdrawn by the landlord on 10-6-1970. On 18th November, 1970, he filed his application for striking out the defence on account of the default in depositing the rent for the month of February, 1970 in time. The trial court in this case also allowed his application and the tenant came to this Court. This Court set aside the order on the ground that "the plaintiff could not have made a grievance of non-compliance of the order dated 10th July, 1968 after withdrawing the rent for these months.....having accepted the rent for January to April, 1970, the plaintiff ought not to be allowed to raise the point that, that, the order dated 10th July, 1968 was not strictly followed. The court must take it that the right accrued to the plaintiff under the order passed under Section 11A to ask the Court for striking off the defence was waived by the plaintiff by withdrawing rent for the months of January to April, 1970."
14. In the case before us, we have seen that the petitioners of this case also committed various defaults in depositing the monthly rents in between February, 1970 and July, 1971 and the landlord withdrew all the deposits. He withdrew the deposits made up to February, 1971 before making of the application for striking off the defence and withdrew the subsequent deposits on 6-2-1975 after he had made the application on 18-11-1971. The argument advanced on behalf of the landlord, however, was that in any event the withdrawal of the rents of the months of July to October, 1971 did not amount to a waiver in view of the application for striking off the defence having already been filed on 18-12-1971, This argument is erroneous and must be rejected. It well might be, that on 18-12-1971 when the application was made by the landlord for striking off the defence, he might have a valid right on account of the defaults committed by the petitioners in depositing the rents for the months of July, August and September, 1971. But the landlord did not Dress this application until he had already withdrawn the amounts on 6-2-1975 and, therefore, he had taken advantage of the deposits by withdrawing the same which disentitled him to claim his right to get the defence of the petitioners against their ejectment to be struck off as thereby he accepted the position that the said deposits were within time.
15. For the foregoing discussions, following the principles of judicial amity, I must hold that the trial court has committed an apparent error of jurisdiction in striking out the defence of the petitioners against their ejectment. The order of the court below must, therefore, be set aside.
16. Before parting with this case, I must also notice and dispose of briefly another argument which was advanced on behalf of the petitioners. The argument was that on the death of the original tenant the tenancy which was per-sonal in nature in his favour, came to an end, in the absence of any fresh order passed after the substitution of the petitioner under Section 11A of the Act and, therefore, no question of any default in carrying out the said order would arise. This argument is based upon my own decision in Brahmeshwar Dayal v. Basanti Devi (1973 BBCJ 809). I shall discuss this case immediatey hereafter.
17. In J. C. Chatterjee's case (AIR 1972 SC 2526) the Supreme Court has observed that after the termination of the tenancy of a tenant he becomes only a statutory tenant and on his death his heirs and legal representatives, who are brought on the record cannot be held to be tenants, as the right of the statutory tenant to continue in possession under the provisions of the Act being personal to him, it would not be claimed by the heirs, Following this decision, I had held in the case of Bibha Ray v. Hirendra Chandra Dutta (1975 Pat LJ R 280) that after the death of the original tenant a fresh attornment by the landlord was necessary to create tenancy in favour of the heirs of the tenant, and, perhaps, obsessed by it. I further held in the case of Brahmeshwar Dayal (supra) that on the death of the original tenant his written statement automatically becomes non-existent and his heirs, who were substituted would not be bound by the order which was passed at an earlier stage of the proceeding when they were not before the court. The court having permitted the heirs to file their own written statement it was obligatory for the plaintiff to obtain a fresh order under Section 11A. The second argument on behalf of the petitioners is wholly based upon this decision. I, however, on a more careful study feel that I had gone rather too far in the said case and would revise my opinion as indicated hereinafter.
18. There is already some discussion In that case for taking that view, namely, that on the death of a tenant after an order under Section 11A, the peremptory time for making the deposits is bound to expire before he is substituted. Inasmuch as a larger period of limitation is prescribed for substitution. Then again even after substitution, the heirs may choose not to appear until notice of the suit is served upon them. Therefore, the question arises as to whether the written statement of the tenant should stand struck out without any laches on bis part or on the part of his successor tor the inevitable defaults during the interregnum. In Lodha's case (AIR 1974 Pat 211) itself some what similar situation was considered by the Bench. After the order under Section 11A the plaintiff's suit was dismissed for default and therefore, the tenant could not deposit the rent in compliance with the order, When the suit was restored it was observed that revival of the order from its original date would create anomaly as that would entail default on the part of the tenant as a matter of course. It was accordingly held that the order under Section 11A should be deemed to have been revived from the date of the restoration of the suit and accordingly in respect of the accumulated rent between the period of dismissal and its subsequent restoration, the tenant would get clear fifteen day's time from the date of the restoration for depositing such rent.
19. After J. C. Chatterjee's case (AIR 1972 SC 2526) the Supreme Court has delivered two more judgments and they are in the case of (1) Damadi Lal v. Parashram (AIR 1976 SC 2229) and (2) Smt. Chander Kali Bail v. Jagdish Singh Thakur (AIR 1977 SC 2262). Both these cases arose from M. P. Accommodation Control Act and I find that both the cases have departed from the view propounded in J. C. Chatterjee's case. It has been now observed that "a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an incidence of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the same must necessarily disappear.....".
20. On a careful consideration of the above decisions and taking into account the principle of "Hardship", I now conclude that in a situation like this, i. e., where a tenant dies after passing of the order under Section 11A, the order stands suspended until the heirs are substituted and if they do not appear at that stage; till the date fixed in the summons served upon them for their appearance. The period of 15 days must be computed for depositing the accumulated arrears.
21. In sum, I would hold that on the death of the original tenant his written statement does not automatically become non-existent, nor there is any necessity for the plaintiff to obtain any fresh order under Section 11A specifically against the substituted heirs and legal representatives as all those automatically revive on the order of the substitution. The second contention urged on behalf of the petitioners, therefore, has got no substance and must be rejected.
22. In the result, I would allow this application and set aside the order of the court below. As a consequence of the same, the written statement in question automatically stands restored. The petitioners will also be entitled to their costs. Hearing fee is assessed at Rs. 200 only.
Brishketu Saran Sinha, J.
23. I agree with all the conclusions of my learned brother, Hari Lal Agrawal, J. except one. I would, however, like to make some observations of my own with regard to some of the conclusions arrived at by my learned brother. I will begin by referring to my disagreement.
23A. Section 11A consists of two sub-parts. Question is whether second sub-part which is the consequence which flows out of failure to comply with an order passed in accordance with the first sub-part is mandatory or directory in nature. I need not quote the section as it has been quoted in the judgment of my learned brother. The submission that in the first part the words may "make an order" make it discretionary and the expression "the court shall order the defence against ejectment to be struck out" is mandatory because of the use of the word "shall" is plausible and attractive. Adopting the general rule of literal interpretation the word "shall" leaves no discretion to the court and the order of ejectment has to be passed. But it is equally well settled that in certain, circumstances the word "shall" has also been interpreted by courts to provide for a discretion. And in selecting a different interpretation the court will adopt that which is just, reasonable and sensible rather than that which is none of those things, as it is to be presumed that the legislature should have used the word which least offends sense of justice. In the case of Tirath Singh v. Bachittar Singh, (AIR 1955 SC 830) the following passage from Maxwell on Interpretation of Statutes, 11th Edition, has been approved :--
"Where the language of a statute, in its ordinary meaning grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or ab-surdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.
Shah. J. also, in the case of Madhav Rao Jivajirao v. Union of India, (AIR 1971 SC 530) observed:
"The court will interpret a statute, as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law-maker intending injustice and unreason."
Lord Wilberforce in (1970) 1 All ER 558 similarly stated when the statutory words capable of two meanings preference should be given to that meaning which produces the more reasonable and just result."
24. Taking into account the above principles, it seems to me that if the word "shall" in the second sub-part of Section 11A is given its ordinary grammatical meaning the consequence in many cases would lead to hardship which the legislature could not have intended. For example, if there is a default in payment by the tenant because of vis major, would it be reasonable to hold that even in such a case, the defence should be struck off. Such instances can be multiplied. To take another illustration, if on the due date the tenant starts to deposit the rent and meets with an accident and is thereby prevented from making the deposit in time, will he be deemed to be a defaulter whose defence must be struck off ? I am, therefore of the view that if the word "shall" is given its ordinary meaning it would, in many cases, lead to hardship and injustice. Accordingly. I am inclined to take the view that even the second sub-part of Section 11A is directory in aature and not mandatory. But even a directory provision, as pointed out by Untwalia C. J. (as he then was) in the case of Smt. Ram Adhikari Devi v. District Magistrate, Vaishali (AIR 1974 Pat 19), is not meant to be violated.
25. Ahmad, J. in the case of Deokaran v. Daulat Ram, (1960 BLJR 686), held the second sub-part of Section 11A to be mandatory as the word "shall" had been used in it while the word "may" had been used in the first sub-part. I have already shown above that by holding it to be mandatory, the result would be hardship. Similarly, G. N. Prasad, J., in the case of Ganga Prasad v. Mahendra Prasad, (1967 BLJR 53) relying upon the word "shall" held that the moment there was a default, the second sub-part of the section operates and the court has no option but to make an order that the defence against ejectment shall be struck out and such an order, according to the learned Judge, was in the nature of a formal order. With respect, I am unable to agree with this conclusion. In the Division Bench case of Nagina Ram v. Bishwanath Prasad Khemani, (1964 BLJR 197) the only question that fell for consideration was what would be the effect of an order passed under Section 11A striking out the defence against ejectment of the tenant and in that case it was held that in such a situation, the suit would have to be fixed for ex parte hearing and the tenant would not be entitled to cross-examine any witness who might be produced on behalf of the landlord. In that case it did not fall for consideration whether the second sub-part of Section 11A was mandatory or directory in nature.
26. Turning to the crucial question involved in this case as to the effect of withdrawal of the rent deposited out of time by the landlord on his right to get the defence of the tenant against ejectment struck off it becomes necessary to take into account the well-known principles underlying estoppel and waiver. Both the principles are based upon equity and good conscience and the rule has been thus stated:
Where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things and induces him to act in that behalf so as to alter his own previous position, the former is precluded from hovering against the latter different state of things as existing at the same time."
However, there is a difference between estoppel and waiver. I cannot do better in stating the general principles governing estoppel than to quote Lord Denning MR in the case of Moorgate Mercantile Co. Ltd. v. Twitchings, (1975) 3 All ER 314:
"Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity. It comes to this. When a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be injust or inequitable form him to do so".
27. Waiver, on the other hand, as pointed out by the Supreme Court in the case of Waman Shriniwas Kini v. Ratilal Bhagwandas and Co., (AIR 1959 SC 689) "is the abandonment of a right which normally, everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied. "It was, however, pointed out that an agreement to waive an illegality is void on grounds of public policy and would be unenforceable. Similarly in the case of Jagad Bandhu Chatterjee v. Smt. Nilima Rani, ((1969) 3 SCC 445), Grover, J., speaking for the Court pointed out that the distinction between estoppel and waiver is that waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right and in India the general principle with regard to waiver of contractual obligation is to be found in Section 63 of the Indian Contract Act. Waiver signifies nothing more than an intention not to insist upon the right. In case of Satya-narayan v. G. Yelloji Rao, (AIR 1965 SC 1405) it was pointed out that waiver in its legal accepted sense is contractual and may constitute a cause of action : it is an agreement to release or not to assert a right. In the case of Associated Hotels of India Ltd. v. Sardar Ranjit Singh, (AIR 1968 SC 933), it was pointed out that there can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and facts enabling him to take effectual action for the enforcement of such rights. 28. In the case before us, waiver has been pleaded and the principle of waiver may be applied both to directory and mandatory provisions. The two well-known limitations to its application are very succinctly stated in Woodroffe and Ameer All's Law of Evidence in India, 13th Edition, Volume III, at page 2820 in the following terms :--
"(1) A party cannot waive a statutory requirement which has been inserted by law in the public interest as distinguished from the interest of the parties to an action;
(2) The parties cannot, by waiver, invest a tribunal with a iurisdiction which it does not have" in the instant case, the second limitation does not call for consideration. It, however, remains to be seen whether in Section 11A any public policy is involved.
28A. Public policy, Judges have been warned, is an unruly horse which must be warily ridden. In considering the question of waiver Lord Maughan, in the case of Maritime Electric Co. Ltd. v. General Dairies Ltd., (AIR 1937 PC 114) pointed out that the court should first of all determine the nature of the obligation imposed by the statute and then consider whether the admission would nullify the statutory provisions. Therefore, it has to be seen whether the obligation imposed by Section 11A is of a public interest. An enactment can be said to incorporate a public policy only when it applies to the community as a whole or to a large section of it and is to afford a protection to them. Public Policy would also be involved if the intention of the enactment is to eradicate some mischief. The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, is an act to regulate the letting of buildings and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom. In making provisions for these objects, the general law for evicting a tenant has been restricted and Section 11 of the Act provides the circumstances in which a tenant can be evicted. In other words, a landlord can evict a tenant only if he can show that his case falls in the four corners as engrafted in Section 11. In a suit for eviction, however, Section 11A provides that if there has been arrears of rent then the court after giving a party an opportunity to be heard, makes an order for the deposit of the arrears within the time prescribed in that section and may also direct the payment of current rent by the time prescribed in that Section. The Provision further provides that if there is a default in depositing the arrears of rent or the current rent then the defence against ejectment of the tenant shall be struck out. It is obvious, therefore, that such a provision does not entail any public policy but is for the benefit of the landlord in certain circumstances. Hence, it cannot be said that the principle of waiver will not apply in a case under Section 11A on the ground that it would be an infringement of public interest or public policy. It cannot also be said that by waiving his right under Section 11A, the court is being asked to enforce as valid which the competent enactments have declared, shall not be valid. It is the right under the second sub-part of Section 11A, a right which accrues in favour of an individual, the landlord, which, it is certainly, within his competence to waive.
29. Having held that the doctrine of waiver applies to cases of default under Section 11A, my learned brother has already, on the facts come to the conclusion that in the facts of this case, there was a waiver with which I am in respectful agreement.
Shiveshwar Prasad Sinha, J.
30. Since mine would be a dissenting judgment, I would like to state the facts in my own way.
30A. This case has been referred to a Full Bench for testing the validity of a Bench decision of this Court in the case of Ranchhod Lodha v. Madhabji Kanji, (AIR 1974 Pat 211). This was a case in which the lower court had struck out the defence of the tenant under Sec-tion 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. It was held that the trial court had committed material irregularity in exercise of its iurisdiction in striking out the defence, because the plaintiff had waived his right to apply under Section 11A for striking out the defence by withdrawing the rent deposited by the tenant.
The primary question that therefore, has arisen is, whether the withdrawal of such rent which had not been deposited in accordance with the order of the court under Section 11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 by the landlord, disentitled the court from striking out the defence of the tenant ? Another question which has arisen in the instant case is on account of the particular circumstances in the case, which I shall presently relate:
The question is, whether a fresh order under Section 11A of the Act is required to be passed on the substitution of the original tenant by his heirs and legal representatives.
31. Briefly stated the facts are: that the landlord (Opposite party in the instant case) brought a suit for eviction of his tenant (Petitioners) from a house located in the town of Chapra. The suit was dismissed on the 13th November, 1965 and an appeal was preferred against it. In the appellate court, the landlord filed an application under Section HA for the usual relief, namely, for deposit of the arrears of rent and also of the current rent. The court passed an order on the 10th of January, 1968, giving direction in accordance with the provisions of Section 11A of the said Act, asking the tenant to deposit the arrears of rent and to pay the current by the 15th day of each succeeding month. Consequent upon the said order, deposits were made within time, up to December, 1969. Unluckily the original tenant died on the 10th of January, 1969 and then the order under Section 11A remained uncomplied with until the heirs and legal representatives of the original tenant were substituted. On substitution, the legal heirs of the original tenant appeared on the 10th of September, 1969 and prayed for permission to deposit the arrears of rent as also the current rent. Permission having been granted, the substituted heirs now started making deposits in terms of the order of Section 11A of the Act, but they made several defaults by not observing the time schedule. The court below has found that the tenant has committed such defaults to be seven in number, up to a particular date. The landlord, besides withdrawing the deposits of rent which had been made in time, also withdrew the rents which had not been deposited in time. After having withdrawn some of the belated payments of rent, the landlord filed an application on the 18th Dec., 1971 for striking out the defence of the tenant. The substitut-
ed heirs took the plea that they were not bound by the original order under Section 11A passed on the 10th January, 1968, because it was an order on their predecessor, when they were not before the court at that time. According to them, a fresh order under Section HA was necessary to be passed without which they cannot be said to have defaulted any order of the court.
The court, however, rejected the plea, saying that no fresh order under Section 11A is necessary on the substituted heirs and that since there had been default in the compliance of the court's order under Section 11A of the Act, the defence was to be struck out. The defence of the tenant was accordingly struck out. The tenant then moved this Court in revision and later it was referred to a Division Bench, which Division Bench has referred it for consideration, before a Full Bench. That is how this matter is before this Court.
32. Besides contending that the order dated 10th January, 1968 under Section 11A of the Act became non est on the death of the tenant, against whom it was passed and that a fresh order under Section 11A of the Act was necessary on his legal heirs to be binding on them, it has been further contended on behalf of the tenant (Petitioners) that the landlord (Opposite Party), by accepting even such deposit of rent, which had not been made within the stipulated time, had waived his right to get the defence struck out and consequently the impugned order was invalid.
33. It has not been clearly argued as to whether the impugned order suffers from want of jurisdiction of the court to pass it or that in passing the said order, the court had committed material irregularity in exercise of its jurisdiction. Since, however, the argument mainly is that the Bench decision of this Court reported in AIR 1974 Pat 211 (supra) was a good decision, I will take it that the attack against the impugned order is on grounds of exercise of jurisdiction with material irregularity. My learned brothers have held in favour of the petitioners on the point of waiver, but have held against the petitioner on the other point, namely, the order under Section 11A of the Act passed against the original tenant being not binding on the substituted heirs.
On the question, as to whether the provision under Section 11A of the Act, relating to the stocking out of the defence was mandatory or directory, one of my learned brothers has held that it was mandatory, while my other learned brother has held it to be directory in nature. I am of the opinion that this question is not relevant in the present context and, therefore, I will leave it at that. I agree with my learned brothers with their view, that a fresh order under Section 11A of the Act is not necessary to be passed on substitution of the heirs and legal representatives of the original tenant. On the death of the original tenant, the order under Section 11A merely remains in abeyance and automatically revives when the heirs of the deceased are brought on the record.
34. My disagreement is only on the question of waiver. In deciding this issue, one has to keep clear in view as to what has been waived, for it cannot be said that the parties can, by waiver, divest a court of a jurisdiction which it has. Almost all the case laws, that have been cited on behalf of the petitioners have proceeded upon the footing that by accepting such rent, as have not been deposited within time the landlord had waived his right to apply for striking out the defence of the tenant. Most of those case laws have been noticed in the judgment of my learned brother, Agrawal, J. Even the Bench decision, the validity of which is in question, has proceeded upon the same basis. There also their Lordships have held that the landlord will be deemed to have waived his right to apply for striking out the defence of the tenant, when he withdrew the rent which had not been deposited in time. All these decisions postulate that in order to pass an order of striking out the defence of the tenant against ejectment, the move must emanate from the landlord and if the landlord has by his conduct, namely, by accepting such rent which had been deposited beyond time, has exonerated the tenant from the default, the court cannot strike out the defence suo motu. In other words, unless there is a petition by the landlord to strike out the defence of the tenant, the defence cannot be struck out by the Court. As I said earlier, one has to keep a clear distinction before himself between the waiver of a right which would affect the court's jurisdiction to pass order and waiver of a right which will have no bearing on it. Waiver of one's own right will not necessarily debar the other person from exer-
cising his right, unless, of course, the exercise by the other person of his right depends upon the first man's rights.
35. Now in the instant case, the landlord (Opposite party) by accepting the belated payments of rent has, no doubt, debarred himself from decrying the payments as having not been made within time. The question, however, is whether such act on the part of the landlord would debar the court from striking out the defence. Even if the court had struck out the defence, being oblivious of the situation, I do not think the court had acted with any irregularity in exercise of its jurisdiction in strikng out of the defence.
Section 11A of the Act reads as follows :--
"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 arrears of rent, if any, and the Court, after piv-ing 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 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 order the rent at any 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 out 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 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."
Under the provisions contained in this section, the obligation to apply has been cast upon the landlord in respect of two matters:
(i) for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any" and
(ii) for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment.
There is no obligation cast on the land-lord to make an application on the failure of the tenant to deposit the arrears of rent within the stipulated time to strike out of the defence of the tenant against its ejectment. So far as this is concerned, it is an obligation cast upon the court to find out, whether its order under Section 11A of the Act had been properly complied with. The landlord comes nowhere in the picture in that matter. Now, therefore, if the landlord accepts the belated payment of rent the landlord may have waived his right to say that the payments were be-lated, but such waiver on the part of the landlord cannot divest a court of its jurisdiction to determine whether or not it should strike out the defence of the tenant against ejectment. There can be no divestment of the court's power to go into that question by the act of waiver com-mitted by the landlord. It is the statutory duty of the court to see that its orders are not flouted and are duly complied with. The jurisdiction to strike out the defence against ejectment flows from this very statutory duty which the court has to perform. If, therefore, the court has followed the law, even though it might have resulted in hardship to the tenant, the action can neither be said to be without jurisdiction nor can it be said that he jurisdiction had been exercised with material irregularity.
36. I may further observe that waiver is not a pure question of law. Therefore, this question should have first been raised before the lower court. This plea was neither raised nor considered by the court below; and frankly speaking, in my opinion, this plea ought not to be allowed to be taken at this stage of the proceeding. But even otherwise the effect of waiver by the landlord of his own right, in my opinion, cannot divest a court of its jurisdiction to strike out the defence of the tenant against ejectment. In a case like this, the principle enunciated by the Supreme Court in the case of Waman Shriniwas Kini v. Ratilal Bhagwandas & Co. (AIR 1959 SC 689) will apply. In this case, there was an agreement between the landlord and the tenant that the tenant may keep sub-tenants. The landlord thereafter filed a suit for eviction of the tenant on the ground that he had sub-let the tenancy. The agreement between the landlord and the tenant was put forth as a plea against eviction. Their Lordships held that since the sub-letting of premises was contrary to law, the law has to be upheld and not the agreement. A similar view has been expressed by the Supreme Court in the case of Mathura Prashad and Sons v. State of Punjab (AIR 1962 SC 745). In this case the agreement between the State and the assessee was for not assessing a particular item which was assessable to sales tax being contrary to law. Therefore, this agreement being contrary to law, their Lord ships held that what would prevail would be the law and not the agreement between the assessee and the State.
37. Reverting to the case in view, even if it be accepted that by the acceptance of the belated rent payments, the landlord is left with no grievance, this act on the part of the landlord cannot divest the court of its jurisdiction to look into the records of the case and to find out as to whether or not the tenant had complied with its order of paying rent within the stipulated time. In the instant case, the court being satisfied that the tenant had flouted its order, not once but seven times, it cannot be said that the court below, in striking out the defence against ejectment, acted without jurisdiction nor can it be said that the court acted with material irregularity in exercise of its jurisdiction. I may add that possibly if the provision of Section 11A had required the court to act only on the application of the landlord to strike out the defence, my answer would have been different. Since the provisions of Section 11A do not require any such move on the part of the landlord, the action taken by the court below striking out the defence has to be considered independent of any application having been made by the landlord for striking out the defence.
38. I will, accordingly, dismiss the application, but under the circumstances make no order as to costs.
39. In consonance with the views of the majority, this application is allowed and the order of the court below is set aside with costs. Hearing fee Rs. 200/- only.