Patna High Court
Ranvijaya Shahi vs Bala Prasad Motani on 28 September, 1977
Equivalent citations: AIR1978PAT91, 1978(26)BLJR259, AIR 1978 PATNA 91
JUDGMENT Madan Mohan Prasad, J.
1. This appeal is directed against the decree in a suit for money as rent of a cinema 'house in the following circumstances.
2. It is said that the premises in which the said cinema, called Janta Cinema, is located at Bettiah belong to the respondent. He had granted a lease thereof in favour of one Mansukhani in the year 1947 for a period of five years. This lease was assigned to the appellant's mother in the year 1949. The term of the lease was to expire on 31st of August 1952. Another lease was taken by the appellant with effect from 1st of Sept. 1952 for a period of 15 years at a stipulated rent of Rs. 350/- per month. Meanwhile, the father of the appellant took a mortagage of the same propertv in November 1949. The Respondent alleges that the rent due from the appellant for the period beginning with the lease and ending with Jan. 1957 had been paid off after some remissions granted to the appellant. There were, however, dues regarding the rental with effect from February 1957 to Jan. 1963. He. therefore, filed the present suit for recovery of a sum of Rs. 25,200/- and also prayed for eviction of the appellant on the ground of non-payment of rent. Further, he claimed pendente lite and future interests.
3. The defence of the appellant is that it was reallv his father who was the assignee of the first lease, who was also the mortagagee and again who was the lessee under the subsequent lease, the mother and the appellant himself being mere name-lenders. In that view of the matter, it is said that the same person who was the lessee before and the usufructuary mortgagee thereafter was not bound to pay anv rent, whatsoever, under the subseauent lease to the respondent. In the alternative, the appellant claimed set-off of various amounts due under one title or the other.
4. The Additional Subordinate Judge decreed the suit partially, inasmuch as he passed a decree for a reduced amount of Rs. 21,825/- which he found due to the plaintiff respondent. He, however, refused a decree for eviction on the ground that the requisite notice under Section 106 of the T. P. Act had not been served. He further denied any pendente lite or future interest. Hence this appeal.
5. A cross-objection also has been filed on behalf of the respondent, wherein the findings with regard to the eviction and grant of future rent and pendente lite interest have been challenged.
6. At the hearing of this appeal counsel for the appellant has contended only as follows. Firstly, it has been urged that the leases and mortage being in favour of the same person viz.. the defendant's father, the defendant was not liable at all to pay anything and his father was not liable too, being the usufructuary mortgagee and thus entitled to the rent which accrued during the relevant period, the mortgage not having been redeemed. Secondly, it was urged that the claim was partly barred by limitation, inasmuch as the suit would be governed by Article 110 of the Limitation Act, 1908. Thirdly, that there had been a variation of the contract between the lessor and the lessee, inasmuch as the respondent had agreed to reduce the monthly rental to a sum of Rs. 300/-. and, therefore, the Court below could not have decreed the suit at the rate of Rs. 350/- per month, as it had done.
7. With regard to the first point, considerable argument has been made to show that the three transactions were really in favour of one person. It is said that the point, though not admitted, was not seriously challenged by the other side in trial court. We have been taken through the evidence of P. Ws. 1 to 9 to the effect that the cinema belonged to and was run by the defendant and not his father, as also through the evidence of D. Ws. 1, 3, 5, 8, 9 and 11 to prove the contrary. We have also gone through the documents which are notices from the Commercial Tax Department, the Income-tax Department's assessment orders, Cheque Books and specimen signatures in the bank sent to show as to who was operating the accounts, and certain other documents with a view to show that it was the defendant's father who was the real proprietor and the lessee of the cinema. On the other hand, documents including one Ext. K, executed by the defendant and his father showing that the defendant's father was merely an adviser and that the defendant was the proprietor of the cinema have also been placed before us. It is, however, not necessary to go into this question, in view of the contention raised on behalf of the respondent.
8. On behalf of the respondent, the learned Advocate General has contended that in a case of contract like the present, in view of Section 37 of the Contract Act, there is no scope for a party to the contract to show that it was a benami transaction and that he could not be saddled with the responsibility arising out of the contract. Section 37 reads as follows:
"The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act. or of any other law.
Promises bind the representatives of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contract."
It is obvious, in view of the aforesaid provision of law, that promises made are binding unless excused under the provisions of the Contract Act itself or under any other law. It is a well-established principle of law that parties and privies to contract are undoubtedly bound by it. In such a situation, it is obvious, it is not open to the defendant in this case to say that he was not the lessee, even though the document of the lease, a bilateral document, shows that he is the lessee and the agreed to be the lessee and further that he agreed to perform the terms of the contract.
9. There is another aspect of this question and that is--Is it open to the appellant to say, contrary to the document of lease itself, that he was not intended to be the lessee? That would amount to varying the terms of the contract itself. In view of Section 92 of the Evidence Act, it is not open to him to do so. The contract is embodied in the document which is required to be registered under the law. Oral agreement to the contrary cannot be given and even if documentary evidence could have been given to avoid the mischief of Section 92 of the Evidence Act, it could not be done except by another registered document. By the document of lease, the lessor has a title to realise the rent from the named lessee in respect of an immoveable property. If that right is denied by the lessee, then this would be controverting the terms of the contract with regard to the essential term as to who is the lessee. It would thus have the effect of extinguishing the title of a lessor in respect of an immoveable property leased out to the lessee and it will absolve the lessee from the liability created in respect of the immoveable property leased out to him. So it would require a registered document. In the case of Kashinath Bhaskar v. Bhaskar Vishweshwar (1952 SCJ 150) : (AIR 1952 SC 153), there was a variation in the rate of interest of a mortgage by a subsequent agreement, and it was held that the variation affected the interest in the property and for that matter the agreement was required to be registered. In this view of the matter also, therefore, it is not open to the lessee, the defendant appellant, to say that he is not the lessee at all and that it is somebody else.
10. In view of the aforesaid, the question does not arise as to whether the defendant's father was the real lessee and whether his interest as a lessee had merged in the bigger interest as the mortgagee and in view of his having become the mortgagee he was or was not , entitled to pay rent with regard to the lease taken subsequent to the mortgage.
11. With regard to the question of limitation it was urged before us that although the document of lease prescribed a period of 15 years, the appellant under some advice had said that a document of lease could not be for a period longer than that of three years, and, therefore, it may be treated as such. It appears that the plaintiff had got an amendment made in the plaint, saying that "the plaintiff in law could not grant a lease for more than 3 years so the lease in law reduced and became limited to a term of 3 years which term expired long ago". It appears that this amendment in the plaint was made with a view to get eviction on the basis of efflux of time. Neither the counsel for the appellant nor for the respondent has been able to place before us any law laying down that the lease could not be granted for more than three years. However, counsel for the appellant wanted to take advantage of this statement, and the says that the plaintiff himself having admitted that legally he could not execute a lease for a longer period, it must be taken for granted that the lease was for that period, and, in that view of the matter, the lease having expired, the appellant became a tenant at sufferance thereafter and that being so, the suit could not be deemed to be a suit for rent under the lease and thus governed by Article 116 of the Limitation Act but a suit for rent against a tenant holding over and, therefore, governed by Article 110 of the Limitation Act, Counsel in support of his argument has drawn our attention to the decisions in Devaki Amma v. Ramachandra (AIR 1955 Trav-Co 146) (FB), Kutti Umma v. Madhava Menon ((1901) 11 MLJR 186) and Mamambath Pettiyeth v. M. M. Cheria Uthalamma ((1912) 16 Ind Cas 560). On the other hand, there are other decisions to the contrary. They are to be found in Pratap Narain v. Ramdhan Das (AIR 1946 All 447) and Madar Sahib v. Kader Moideen Sahib (AIR 1917 Mad 901). It is not necessary to enter into a discussion of this question for the simple reason that the basis for the argument is absent. The argument may or may not be good even on the assumption that the lease had come to an end, but the principal question of fact is whether or not the lease had terminated in the present case. That has to be decided first before any law is applied. We find that there is no substance in this statement of fact relied upon by the counsel for the appellant.
12. The question is whether the lease was for 15 years or it has come to an end, in view of the statement of the plaintiff respondent. It is quite obvious that the respondent under a mistaken view of law got his plaint amended and said that since he could not grant a lease for 15 years, it must be deemed to be a lease for three years. It was a mistaken view of law and concession in law. It is not a concession of fact. On fact, there is no dispute that the lease was intended to be, and but for any other reason was, a lease which was to expire after the period of 15 years. Nothing having been pointed out to us that it could not be so, we cannot agree to the contention of the counsel for the appellant that the principle of estoppel would apply. The statement has been made by way of statement of law. There is no question of application of the principle of estoppel so far as law is concerned. It is well-established that there is no estoppel against law, and if the law was that the deed could be for 15 years and it was for 15 years, the plaintiff cannot be estopped from saying that it was for 15 years because at one point of time he had said that in law it could be for a period not more than three years. For that reason, we must rule out the contention of law raised on behalf of the appellant.
13. In that view of the matter, the suit was one for rent while the lease was subsisting and, therefore, under the document of lease itself. That being so, in view of the decision of the Privy Council in T. C. Bhoja v. G. T. Thakur (AIR 1916 PC 182), the suit must be deemed to be one which would be governed by Article 116 of the Limitation Act and not by Article 110. The point is well-settled that no further authority need be cited in that respect. The aforesaid principle laid down by the Privy Council has been followed by numerous decisions including this Court in Maheshwari Prasad v. Manrajo Kuer (AIR 1944 Pat 87) (FB), Humayun Reza v. Tarini Charan (AIR 1942 Pat 83), Jangdhari v. Badri (1939 Pat WN 220), etc. Counsel has conceded that if the lease was for a period of 15 years, then certainly Article 110 would not apply, and the proper Article to apply would be Article 116. That being the position, the suit being for a period of six years only, the question of limitation does not arise. The contention in this regard must be overruled.
14. Coming now to the third point raised, namely, the rate of rent, it is true that some of the rent receipts, Exhibits A series, show the monthly rate to be Rs. 300/- and they relate to the period after the execution of the lease in 1952, We cannot, however, base our decision on these documents, in view of the decision in the case of Kashinath Bhaskar Datar (supra).. Luckily for the parties, they have agreed that the decree for rent in respect of the present claim, be passed at the rate of Rs. 300/- per month. Both the counsel as also the plaintiff himself, whom the counsel for the respondent consulted, having agreed to this, the advantage to the appellant may enure. We would, therefore, accept the agreement between the parties and decree the suit for rent at the rate of Rs. 300/- per month.
15. That brings us to the question as to what should be the amount to be decreed. The Court below has calculated on the basis of Rs. 350/- per month. Apart from that, the learned Subordinate Judge seems to have confused himself by taking into consideration the period prior to the suit and jumbling up the periods, prior and subsequent, together and the payments also. The simple point before him was, in view of the claim with effect from February 1957 until January 1963, as to what was the rate for that period and how much had been paid by the appellant. Having done that, it would appear that for the 72 months, the period of claim, if the rate be calculated at the rate of Rs. 300/- per month, it would be Rs. 21,600/-. It appears from Ext. 5 (a) that two sums of Rs. 300/- and Rs. 200/- were paid in that respect. Further, it appears from Ext. L that the municipal taxes had been paid by the appellant to the extent of Rupees 2,875/-, The total amount of payment should thus come to Rs. 3,375/-. Deducting this amount from the amount due, the balance would be Rs. 18,225/-. That is the amount which is decreed in the present case.
16. That disposes of the contentions put forward on behalf of the appellant, and in view of the findings arrived at, we would modify the decree passed by the Court below in respect of the amount as stated above.
17. Coming now to the cross-objection of the respondent, the first point to be considered is whether a decree for eviction should be passed in the present case. The contention in this respect is that the lease being for a period of 15 years had in any case terminated itself by efflux of time, and, therefore, on 1st of Sept. 1967 it came to an end, this event having happened during the pendency of the suit, the Court ought to have taken this subsequent event into consideration and granted a decree for eviction on that basis alone, The Court below could not have granted eviction for the simple reason that it had decided the suit on 23rd of Sept. 1966, prior to the termination of the lease. There can, however, be no two views now on the question of termination of the lease on that date. There is, however, a question which arises. The lease in the present case does contain a clause for exercise of option for renewal for a further period of five years. The question, however, remains whether this Court should take these points into consideration and pass a decree.
18. The learned Advocate General appearing for the respondent has drawn our attention to some decisions on the point. In the case of Gajadhar v. Khas Mahatadih Colliery Co., 1959 BLJR 376 : (AIR 1959 Pat 562), an imperfect title had been prefected during the pendency of the suit, and it was taken into consideration. The learned Judge has followed an earlier decision in the case of Ram Karain Das v. Governor-General in Council (AIR 1947 Pat 263). The Supreme Court took notice of a probate granted subsequent to the filing of the suit and acted on that basis in the case of Surinder Kumar v. Gian Chand (AIR 1957 SC 875). In the case of Laxmi and Co. v. Dr. A. R. Deshpande, (1973) 1 SCJ 641 : (AIR 1973 SC 171), the learned Judges of the Supreme Court have indicated the circumstances in which a Court can take notice of subsequent events. In the case of Tata Iron & Steel Co. v. Abdul Ahad (AIR 1970 Pat 338), a Bench decision of this Court, it was held that even subsequent rights or new cause of action can be taken into consideration at the time of final adjudication provided that there should be no valid defence. Reliance was placed therein on some of the decisions which have been mentioned earlier. This was a case very near to the facts of the present case, almost on all fours. It was a case of termination of lease with a renewal clause. The learned Judges found that the option for renewal had not been exercised and there was thus no possible defence to ejectment on the ground of the termination of the lease by efflux of time. We respectfully agree with the principle of law laid down therein.
18-A. Applying the principle to the facts of the present case, it appears that even if the clause for renewal had been given effect to, the lease would have been extended for a further period of five years only. There is no clause for any further subsequent renewals. That being so, the lease would again terminate after the renewal on 1st of Sept. 1972. That date also to the misfortune of the appellant has gone by long since. Counsel for the appellant has not been able to tell us that there can be anv valid probable defence to ejectment on the ground of termination of the present lease. It is a well-settled principle that a Court takes supervening and subsequent events into consideration only for the purpose of making an adjudication final so as to dispose of the dispute between the parties finally and thus shorten the litigation. In that view of the matter, in the present case there can be no possible defence, justifying any right in the appellant to continue as a lessee after the termination of the lease. An order of eviction has, therefore, to be granted.
19. The next question which arises is as to whether in the circumstances of this case the respondent was entitled to interest pendente lite and future. The learned subordinate Judge seems to have ignored the provision of Section 34 of the Civil P. C. It is true that it is within the discretion of the Court to allow pendente lite and future interests under Section 34. But the Court has to bear in mind that every judicial order must be backed by reason. In the present case, the learned Additional Subordinate Judge has given no reason and in an arbitrary manner he has said that he refuses pendente lite interest and future interest. We do not know what weighed in the mind of the Subordinate Judge. It is not necessary to cite any authority on the proposition that in such a situation the Subordinate Judge was bound to give reasons. Perhaps, he was not required to give reasons if he had granted it, but if he had refused, he was certainly bound to give reasons. Counsel for the respondent has drawn our attention for this proposition to the case of Umed Singh v. Amolakchand (AIR 1963 Raj 93), following the earlier decisions, viz., Jiwan Lal Achariya v. R. L. Agarwal (1964 BLJR 810), where the principle was laid down that a person is entitled to interest unless there be opening for disallowing the same. We are, therefore, satisfied that in the present case the petitioner was entitled to pendente lite and future interests.
20. We have, however, been informed that the amount decreed by the Court below has already been paid in 1968. The question of future interest after that date would not arise. On principle, however, the respondent would be entitled to future interest as well until the date of the payment. But in the present case counsel for the parties have exercised their good offices by impressing upon their clients the need to give an agreed amount to this Court which should be decreed toy way of pendente lite interest and future interest until the date of the payment. Of course, this concession has been limited only to the present claim. It is said that the entire decretal amount of Rs. 21,825/- was deposited. We have, however, held that the plaintiff respondent was entitled to Rs. 18,225/- as rent. The parties are agreed that the remaining amount of Rs. 3,600/- which was paid although in respect of arrear of rent shall now be deemed to be interest pendente lite and future till the date of the payment of the amount. In other words, the liability to payment of Rs. 3,600/-, which is already said to be paid. That disposes of the point raised in this respect.
21. In view of the aforesaid, we would allow the cross-objection in the manner as stated above.
22. In view of the aforesaid findings, the net result is that the decree of the lower Court is modified in respect of the rent, as stated above, and further that this Court would decree the suit for eviction as well.
23. In the result, the appeal is dismissed with the modifications mentioned above, and the cross-objection is allowed to the extent indicated. The defendant shall vacate the premises in question within a period of six months from the date of the order. In the circumstances of this case, there will be no order as to costs.