Patna High Court
Madholal And Ors. vs Madan Mohan Agrawalla And Ors. on 25 July, 1974
Equivalent citations: AIR1975PAT154, AIR 1975 PATNA 154, ILR (1974) 53 PAT 701, 1975 BLJR 60, 1976 RENT CJ 72
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, C.J.
1. This second appeal was placed for hearing before a learned single Judge of this court and has now been put up before us as it was directed to be placed before a Division Bench for hearing.
2. The suit out of which this appeal arises being title suit No. 1281 of 1965 was originally filed by Murlidhar Agarwalla, whose sons are plaintiff-respondents 1 to 3. He died during the pendency of the suit in the trial court, and the said respondents were substituted by virtue of order dated 1-7-1966, The suit was filed by the original plaintiff as karta of the joint family consisting of himself and his sons. The suit premises belonged to the joint family, and the tenant-defendants were sued for being evicted from them on the ground of non-payment of rent and personal necessity of the joint family of the original plaintiff. Several pleas were raised to resist the suit by the tenant-defendants. It was dismissed by the trial court. On appeal by plaintiff-respondents 1 to 3 the lower appellate court has decreed the suit on both the grounds. Some of the defendants have come up in second appeal to this court.
3. The suit premises in occupation of the defendants consist of two shop-rooms. The tenancy stood in the name of Rurmal Jagarnath which was the joint family firm of the defendants. The firm was also im-pleaded as a defendant and is respondent No. 4. Eventually, under the order of the House Controller the rent of the premises was fixed at Rs. 26/- per month. As there was no special contract to the contrary, the rent was payable by the end of the month following the month for which rent was due. According to the plaintiffs' case, the defendants defaulted in payment of the rent for the months of November and December, 1958 and January 1959. A suit for eviction was filed against them. It was decreed by the trial court, but in the lower appellate court it failed for want of notice under Section 106 of the Transfer of property Act. The High Court affirmed the decision of the lower appellate court. Even after the institution of the previous suit the defendants did not pay any rent and hence they were liable to be evicted on the ground of non-payment of rent in accordance with Section 11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control, Act, 1947 (hereinafter called the Act). The sons of the original plaintiff, according to the case made out, had become major. It was necessary for them to find out some premises for starting their business and hence the suit premises were required bona fide for the personal use of the members of the joint family which was the owner of the premises in question, The present suit was filed after service of notice under Section 106 of the Transfer of Property Act which on refusal was deemed to have been served on them on 4-12-1964.
4. Amongst other pleas, one of the pleas raised in the written statement was that there were other members in the joint family of the plaintiff and they were necessary parties There was an agreement between the parties that rent would be paid when demanded and that if the rent was not collected in time, then the entire rent due would be paid at the time of Diwali. The defendants did not make any default; still the plaintiffs filed a false suit in 1959. A case of personal necessity was pleaded in that suit, but it was held that there was no personal necessity. The further case of the defendants is that they always tendered rent and, on refusal by the plaintiff, they had been sending rent by postal Money order, which the plaintiff had been refusing to accept. By plaintiff, is meant the original plaintiff. It was also asserted that no son of the plaintiff was sitting idle and the suit premises were not required for the use of the family members of the plaintiff's joint family.
5. The trial court found that valid notice under Section 106 of the Transfer of Property Act had been served, there had been no default and that the plaintiffs did not require the premises in suit for themselves, meaning thereby the substituted plaintiffs. Accordingly, it dismissed the suit. The lower appellate court has reversed the decision of the trial court on both the points and has affirmed it on the point of notice, the result being that the suit has been decreed by the lower appellate court.
6. Mr. J. C. Sinha, learned counsel for the appellants, submitted that the finding of the lower appellate Count on the point of nor -payment of rent was vitiated in law and for two reasons, (i) that unless there was default in payment of two months' rent within the meaning of Section 11 (1) (d) of the Act, a decree for eviction on the ground of non-payment could not be passed; and (ii) that the finding in respect of (two alleged non-payments was not correct, and it had been recorded by wrongly throwing the onus on the defendants. Learned counsel further submitted that the decree of the lower appellate Court based on the ground of personal necessity was bad in law in view of the decisions of the Supreme Court in Smt. Phool Rani v. Sh. Naubat Rai Ahluwalia, AIR 1973 SC 2110 and Phirose Bamanji Desai v. Chandrakant M. Patel, AIR 1974 SC 1059.
7. In my opinion, there is no substance in any of the points urged on behalf of the appellants in this case. Section 11 (1) (d) of the Act reads as follows:--
"11. (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 and to those of Section 12, 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:--
* * * *
(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 13";
The question for consideration is when could two months' rent lawfully payable by the tenant and due from him be said to be in arrears. Non-payment for any one month does not bring about the liability to be evicted on the ground of non-payment; non-payment must be of the amount of two months' rent. If the rent for one month is not paid within the time fixed by the contract or, in absence of such contract, by the last day of the month next following that for which the rent is payable, then the rent for one month is in arrear. And if rent for another month similarly falls in arrear, then the ground for eviction is made out under Section 11 (1) (d) of the Act. For attracting the said provision of law there need not necessarily be default in payment of two consecutive months' rent. If that were so, then the latter phrase in Clause (d) will not have full play and nonpayment of rent for one month by the last day of the month next following cannot be said to be in arrear. The learned subordinate Judge in appeal has found that the rent for the months in June 1962 and April 1963 remained in arrears by not having been validly remitted by the last day of the month next following. Rent for the months of June and July 1962 was remitted by Money order. The endorsement of refusal on the money order coupon is Ext. B/20, it is dated 4-8-62. No evidence was given as to when that amount was remitted. Similarly, rent for the months of April and May 1963 was remitted by Money order (Ext. C/26). The endorsement of refusal is Ext. B/15 and is dated 4-6-1963. Thus, the learned subordinate Judge has concluded that the rent for April was not tendered in time and so was not tendered in time the rent for June 1962. Learned counsel for the appellants submitted that since the liability to be evicted was not incurred by non-payment of rent of one month only, rents remitted by Money order and tendered on 4-6-1963 for April and May 1963 was a valid tender. So was valid tender when rents for two months of June and July 1962 were remitted on 4-8-1962. In am unable to accept this argument as correct. The tender of rent on 4-6-1963 for the month of April 1963 was out of time and so was the rent for June 1962 on 4-8-1962, unless of course the case could come under Section 13 (1) of the Act. If the case could not come under Section 13 (1), then the money ought to have been tendered by the post office to the landlord by the last day of the next following month. It was immaterial when it was remitted by the tenant. If the tender of money through the agency of the post office by money order was in accordance with the general law, then the post office acted as the agent of the tenant and the tender to the landlord would be on the date when it tendered to him the money sent by Money order. If of course the case could be covered by Section 13 (1) of the Act, then remittance by money order would necessarily be after the last day of the next following month, and when the tenders were made on 4-6-1963 and 4-8-1962 the remittance by money order must have been made earlier. 8. Section 13 (1) of the Act says:--
"When a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent, and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord."
The tender to the landlord can be made by the last day of the month next following that for which the rent is payable, and, on refusal by the landlord to accept, the tenant may remit such rent, that means the rent for that month, by Money order and continue to remit any subsequent rent also which becomes due in respect of the building. In order to escape, the liability of being evicted on the ground of non-payment of rent, as expressly provided for in Clause (d) of Sub-section (1) of Sec-tion 11 of the' Act, rent must be validly remitted or deposited in accordance with Section 13. If there is a tender and refusal by the last day of the month, then it goes without saying that remittance by money order has got to be within a reasonable period after the refusal on the last date. That brings about a distinction between the tender through Money order under the general principles of law and remittance by money order under Section 13 (1). The tender under the former must be before the expiry of the last day of the month next following that for which the rent is payable. Under the latter, remittancel may be even after the expiry of that date. In order to take the case out of the general law the requirement of Section 13 (1) must be complied with. In this case the learned subordinate Judge has found that although a case was made out in the written statement of tender and refusal and then remittance, by Money order, no evidence was adduced in support of this case and therefore, there was to tender to or refusal by the landlord of the rent for any month. That being so, the provisions of Section 13 (1) were not attracted in this case. All the remittances made by Money order must be defined to be remittances made in accordance with the general principles of law, treating the post office as the agent of the tenant.
9. Mr. Sarkar who followed Mr. Sinha submitted on behalf of the appellants that refusal of the first money order will make the remittances by subsequent money orders in accordance with Section 13 (1) of the Act, and the two defaults found for two months by the learned subordinate Judge were well covered by the remittances under Section 13 (1), In my opinion, the argument is not correct. Reading the pleading of the defendants and the findings recorded by the learned Subordinate Judge, it is clear to me that at no point of time there was any remittance by Money order in accordance with Section 13 on the fulfilment of the condition mentioned therein, and the subsequent remittances, therefore, were not clothed with the character of subsequent remittances under Section 13 (1) of the Act.
10. In this connection, reference may be made to the Bench decision of this court in Mohamood Hassan v. Parsuttam Pandey, 1964 BLJR 24. Mahapatra. J., with whom Tarkeshwar Nath, J. agreed, has said at page 30, Column 2 :
"Section 11 (1) (d) does not speak of arrears consisting of the last two months' rent before the suit or rent of any two consecutive months. The view that I have taken about the meaning of the wards 'the amount jof two months' rent lawfully payable by the 'tenant' enables the landlord to maintain a suit for ejectment of a tenant who defaults to pay or remit or deposit in court on account of rent a sum equal to two months' rent "
11. On the point of sustaining the decree on the ground of personal necessity, the two Supreme Court decisions cited of behalf of the appellants are clearly distinguishable In AIR 1973 SC 2110, the ejectment application had been filed by the plaintiff for occupation as presidence for himself and the members of his family. The application was dismissed by the Additional Rent Controller. The plaintiff went up in appeal. During the pendency of the appeal in died. His heirs consisting of his widow, son and two married daughters were substituted. On the wordings of the Delhi Rent Control Act it was held that it was a personal action by the plaintiff and he could claim eviction when he required the premises for his own use as well as for use of his family members who were dependent upon him, yet it would be for his personal use The right to sue did not service after his death. Different considerations were bound to arise for finding out the necessity of the substituted heirs which would be a distinct and different cause of action. In the instant case, as I have said above, it was not a suit by the late Murlidhar Agarwalla on his own behalf and for his personal necessity only. It was a suit on behalf of the entire joint family, he being the Karta. In paragraph 4 of the plaint it was said :
"That the plaintiff's aforesaid joint family is the owner of the premises situated in Municipal holding No. 103, Bazar Mahalla of Jugsalai town."
And then in paragraph 9 the statement was :
"That all the sons of the plaintiff have now become major and three of them are sitting idle and it is necessary for them to carry on business mainly of foodgrains and grocery but for want of accommodation they have not been able to start any business.
The suit premises are required by the plaintiff's joint family for their own occupation."
I am, therefore, of the opinion that the necessity pleaded was one of the entire family, On the death of Murhdhar Agarwalla his sons could be substituted and they could prosecute this litigation on the same cause of action and consequently the right to sue survived.
11. In the case of Phiroze Bamanji Desai, AIR 1974 SC 1059 it was pointed out by Bhagwati, J. at page 1063, paragraph 7, that the District Judge had taken the correct view of the law that "there must be an element of need before a landlord can be said to 'require' premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy the premises, what is necessary is that he should need them for his own use and occupation."
Since the High Court had wrongly interfered with the decree for eviction made by the court below, the Supreme Court set aside the order of the High Court and maintained the decree of the District Judge. In the instant case, the lower appellate court in its judgment has appraised the evidence, discussed it elaborately from paragraphs 17 to 20 and, believing that there is need for the plaintiffs to occupy the suit premises bona fide, ultimately recorded the finding in paragraph 21 that the plaintiffs do require the disputed premises for their own use and occupation reasonably and in good faith. I find no error of law in the recording of the finding aforesaid.
13. For the reasons stated above, I hold that this second appeal is without any merit. It is accordingly dismissed with costs payable to plaintiff respondents 1 to 3.
S.K. Jha, J.
I agree.