Patna High Court
Ganesh Lal Sonar vs Mohammad Ismail And Anr. on 29 January, 1975
Equivalent citations: AIR1976PAT223, AIR 1976 PATNA 223
JUDGMENT H.L. Agrawal, J.
1. In this second appeal by the defendant, a very interesting question has been raised for my consideration.
2. The plaintiffs instituted a title suit for eviction of the defendant from the suit premises bearine Holding No. 154. Circle No. 102, Ward No. 26 of the Patna Municipal Corporation on the ground that he was a defaulter within the meaning of Clause (d) of Section 11 (1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as the 'Act'), having failed to pay rent for two months, namely, Shrawan and Bhado 1369 Fasli. Admittedly, the tenancy in question is governed by the Hindi (Fasli) calendar. The defendant resisted the suit on the ground that he was not a defaulter in the eye of law, having remitted the rent for the two months in question by money order within the stipulated period.
3. The plaintiffs had instituted earlier Title Suit No. 332 of 1962 in the trial Court for the same relief and the same cause of action against the defendant. In that suit, the plaintiffs had obtained an order under Section 11-A of the Act for deposit of the arrears of rent, including rent for the months of Shrawan and Bhado 1369 Fasli, which was deposited by the defendant under the said provision, and I am informed at the Bar that the plaintiffs withdrew the same. The months of Shrawan, Bhado and Aswin in the Fasli year 1369 commenced on the 18th of July, 16th of August and 15th of September and ended on the 15th August, 14th September and 13th October 1962 respectively. The earlier title suit instituted on the 27th September 1962 was, therefore, premature, as the period of one month after Bhado 1369 Fasli, during which period the tenant could have made the payment of the rent of that month, had not passed out, nor the plaintiffs had determined the tenancy in question by serving a notice of termination under Section 106 of the Transfer of Property Act. Accordingly, on 23-6-1965, a petition was filed on behalf of the plaintiffs seeking permission of the Court to withdraw the suit with liberty to institute a fresh suit on the same cause of action. The defendant did not object to this prayer and, accordingly, the suit was permitted to be withdrawn with an express permission to institute a fresh suit.
4. The plaintiffs thereafter determined the tenancy by serving a notice under Section 106 of the Transfer of Property Act on the defendant and have instituted the present suit for his eviction from the suit premises on the ground that he was a defaulter, having defaulted to make payment of the rent for two months aforesaid. It is not denied that the tenant had remitted the rent for the aforesaid two months on 19-10-1962 by money order, which was refused by the plaintiffs. Both the Courts below have concurrently hold that the defendant was a defaulter within the meaning of Section 11 (1) (d) of the Act, and, as such, was liable to be evicted.
5. In this Court, learned counsel appearing for the appellant contended that the remittance of rent by the defendant on 19-10-1962 was well within the time allowed to him under the law and, therefore, no decree for eviction could be passed. In support of his contention, counsel relied on the definition of the term 'mo-nth' appearing in the Bihar and Orissa General Clauses Act as well as in the Central General Clauses Act to the effect that a month would mean a month reckoned according to the British calendar. He also referred to Section 24 of the new Limitation Act, according to which computation of time mentioned in any instrument for the purpose of computing the period of limitation is to be made with reference to the Gregorian calendar, and contended that in this case, the tenancy month of Bhado ending on the 14th September, 1962, the appellant was entitled to the whole of one full month following the month of September 1962 for making the payment of rent for the month of Bhado 1369 Fasli; and inasmuch as the rent had already been remitted by money order on 19-10-1962, he could not be held to be a defaulter.
6. In order to appreciate the contention raised by the learned counsel, it will be useful to quote the relevant Clause (d). of Section 11 (1) of the Act which is as follows :
"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 follow-ing for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 13.'' The provision of the Limitation Act cannot be applied and stands quite apart. There can be no difficulty in computing any period of limitation prescribed in the different Articles of that Act for computation of any period from any date of the instrument according to the Gregorian calendar. But I do not find it possible to import into the provision of Clause (d) just referred to above, the definition of the word 'month' as in the General Clauses Act to mean, as contended by the learned counsel, that it must mean the whole of a British calendar month. I venture to take this view from the provision occurring in Clause (d) itself, which has been underlined by me above. In my opinion, what the Legislature intended to provide to the advantage of a defaulting tenant was to give him a period of one complete month, next following the month of default, for making payment of rent to the landlord which is quite obvious from the expression "by the last day of the month next following that for which the rent is payable". Applying this provision, by way of illustration to the case in hand, the whole of the month of Aswin, which was the next following month of Bhado, the month in default, only was available to the defendant for making the payment or remitting the same, as the case might have been, to the landlord, and nothing beyond that. Learned counsel for the appellant failed to support his contention by any other authority. It must, therefore, be held that the remittance made by the appellant on 19-10-1962, which was & date subsequent to the date when the next following month Aswin had already passed, was not in accordance with the law and within the period prescribed for that purpose. I have, therefore, no hesitation in. holding that the Courts below have taken a correct view of the law on this ques-tion.
7. Learned counsel next contend-ed that the w :thdrawal of the rent by the plaintiff's for the two months in pursuance of the order under Section 11-A of the Act in the earlier suit would amount to a waiver of the cause of action. It is diffi-cult to accept this port of the contention either. Section 11-A itself provides that the landlord is entitled to withdraw the rent deposited by the tenant without prejudice to his right to claim a decree for ejectment and the Court may permit him to do so. The plaintiffs, therefore, withdrew the deposited rent in pursuance of an order under Section 11-A of the Act. In my opinion, that would not amount to a waiver of the cause of action that was available to them. Under the provisions of the Act, a tenant continues to be a tenant under the law even after the tenancy is determined and he continues in occupation of the premises. In that situation, the landlord has no option but to treat him as such and accept rent from him. Similarly, under Section 11-A of the Act, a safeguard has been provided to a landlord that the acceptance of rent deposited under the said provision will not wipe out the cause of action that a landlord might have against a tenant. Merely on account of the withdrawal of the earlier title suit, this protection which was available to the plaintiffs would not be deemed to have been taken away and the principle of waiver will have no application. The withdrawal of the suit in the circumstances will not prejudice them as they had withdrawn the amount under an express order of the Court when the suit was pending, to which the defendant himself consented.
8. Learned counsel also placed reliance upon a decision of the Supreme Court in the case of Vithal Vasudeo Kul-karni v. Maruti Rama Nagane (AIR 1968 SC 461). That was a case under the provisions of the Bombay Tenancy and Agricultural Lands Act, in which the provisions are quite different than the provisions of the Bihar Act. The .situation also was quite different in that case. I do not think that that case has got any application or is of any assistance to the appellant.
9. This appeal has, therefore, got no merit and it is, accordingly dismissed; but, in the circumstances of the case, I shall make no order as to costs.