Patna High Court
Chaudhary Fazlur Rahman vs Shibaji Bose And Anr. on 16 November, 1977
Equivalent citations: 1978(26)BLJR135
JUDGMENT Madan Mohan Prasad, J.
1. This application in revision is directed against an order by which the court below has rejected an application under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act')
2. It appears that the petitioners filed a title suit in the court below for eviction of opposite party on following allegations:
There was a registered lease executed on the 15th of June, 1954, by which a Cinema hall had been leased out to the opposite party on a monthly rental of Rs. 400/- for a fixed period of twenty years. After the expiry of the terms of the lease, the petitioners sent a notice to the opposite party to vacate the same, but without success. Hence, the suit. Therein the petitioners claimed for a decree for eviction and further damages and compensation at the rate of Rs. 30/- per day from the date of the expiry of the lease until the delivery of possession. During the pendency of the suit, however, the petitioners filed an application under Section 11-A of the Act for an order for payment of arrears of rent accruing due during the pendency of the suit (i.e. from 30th March, 1974 to 31st July, 1976); the suit having been filed on 28th March, 1974 and the application on the 13th August, 1976.
3. The court below rejected the application on the ground that Section 11-A of the Act had no application since it applied only to a case of month to month tenancy, whereas the present tenancy was for a fixed period. He further held that the present suit was one under Section 12(3) of the Act and not under Section 11(1)(e) of the Act. It was further pointed out by the learned Judge that in the sun itself what the petitioners had claimed was compensation and damages and not arrears of rent.
4. At the hearing of this application, learned Counsel for the petitioners has urged that section II-A applies to a tenancy for fued period as well; secondly that the suit is really under Section 11(1)(e) of the Act and thirdly that the claim for damages is based on a mistaken view that the opposite party after expiry of the lease became a trespasser ignoring the effect of the definition of "tenant" given in the Act and, therefore, it ought to be ignored.
5. The first question which falls for consideration is to whether Section 11-A of the Act applies to the case of tenancy for as fixed period. Section 11-A reads as follows:
If in a suit for recovery 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 of the rent at 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 this tenant.
It would appear that it is required by the section aforesaid that the suit must be one for recovery of possession of any building and must be contested as regards the claim for ejectment. Whether the suit is directed against a tenant on monthly tenancy or a" tenant for a fixed period, the section would on its plain reading, thus apply. Then we find that the section provided that the application should be for an order to deposit the rent month by month at a rate at which it was last paid and also the arrears, if any. In my view, the prayer for payment 'month by month', or the jurisdiction of the court to order payment 'month by month', does not indicate that it relates to monthly tenancy only. Reading the section carefully, it would appear that the prayer in such an application should be for payment of rent month by month and the Court may order the deposit of rent at such rate month by month. The occurrence of the words ''month by month" does not necessarily lead to the conclusion that the section is applicable only in the case of a monthly tenancy. It must be clearly borne in mind that a monthly tenancy is different from a tenancy for a fixed period inasmuch as the first is terminable after due notice at the expiry of the month and in case of a fixed term tenancy, it is not terminable during the period of the tenancy except on account of the forfeiture clause or on account of breach of a condition of a tenancy or other agreement between the parties. The distinction is thus based on the period for which the lease subsists. In a case of monthly tenancy naturally the payment of rent would be month by month, but it cannot be said that in a case of a tenancy for a fixed period, there cannot be a stipulation for payment of rent month by month. The time at which the rent is payable does not, therefore, determine the nature of the tenancy.
6. It will further be relevant to notice that Section 11-A uses the word "tenant" which would include a monthly tenant as well as tenant for a fixed period. If the intention of the legislature were to make Section 11-A of the Act applicable only to monthly tenancies, there was no difficulty in saying, "the tenant from month to month" instead on "the tenant", and if such an intention were to be indicated, it would be in the first part of the section in the opening words. The words "month by month", however, have been used in respect of the manner of payment, as I have said above, prayed for and to be ordered for by the Court. There is thus no good reason for taking the view that where the tenancy is for a fixed period and even though there is stipulation with regard to payment of rent from month to month, Section 11-A cannot be applied. In this connection learned Counsel has relied on a decision of Untwalia, J., in the case Arun Kumar Das Gupta v. Aditya Kumar Talopalia 1960 B.L.J.R. 681. In this case there was a tenancy for a fixed period, but the rental payable was month by month. The learned Judge held that Section 11-A does not make any distinction between different types of tenancies and the provision of this section is attracted, if it is a contested suit for recovery of any building. I am in respectful agreement with Untwalia, J., to this extent. The learned Judge has, however, further held that even assuming that the rent was payable yearly, six monthly or quarterly, the Court has jurisdiction as to the tenant to pay the rent month by month; of course after, calculating the rent at the rate at which it was last paid, and determining its own rate of rent to be paid month by month. I reserve my opinion on this point because the question does not arise in the present case.
7. Learned Counsel for the opposite party has, on the other band, placed reliance on a decision of this court in the case of Goreepada Chattopadyaya v. Janki Ram . The Court below has also placed reliance on this very decision for coming to the conclusion that Section 11-A of the Act has no application. The facts of that case were entirely different. In that case there was an agreement between the parties at the time of the grant of the lease that in case the defendant failed to execute a lease after paying the agreed amount he would be treated as a 'licensee' and he would be evicted. The plaintiff had thus treated the defendant as a licensee pure and simple. The defendant in his written statement had taken the position that he was not a licensee, but a tenant on a mohthly basis. Thereafter, the plaintiff amended the plaint and made an alternative prayer for eviction on the ground of default of payment of rent. In such circumstances, it was held that the suit was framed under the Transfer of Property Act and the suit was not on the basis of landlord and tenant between the parties. The primary relief of ejectment being on the basis of the defendant being a licensee pure and simple. For that reason, the learned Judge held that the suit being not under the Act, Section 11-A of the Act had no application. The decision has no bearing on the question which has been canvassed before me and is thus of no assistance.
8. That brings me to the question as to whether the present suit is one under Section 11(1)(e) of the Act or it was an application under Section 12(3) thereof; Section 11(1)(e) read 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 (Act XIV of 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:
... ... ... ...
(e) in the case of a tenant holding on a lease for a specified period on the expiry of the period of the tenancy.
Section 12 reads as follows : -
(1) If a tenant in possession of any building held on a lease for a specified period intends to extend the period limited by such lease he may give the landlord, at least one month before the expiry of the period limited by the lease, a written notice of his intention to do so, and upon the delivery of such notice the said time shall, subject to the provisions of Section 11, be deemed to have been extended by double the period covered by the original lease subject to a maximum of one year.
(2) Where the landlord to whom a notice has been given under Sub-section (1) wishes to object to the extention demanded by the tenant on one or more of the grounds mentioned in Sub-section (1) of Section 11 or on the ground that the landlord has any other good and sufficient cause for terminating the lease on the expiry of period limited thereby he may, within fifteen days of the delivery of such notice apply to the Court in that behalf and the Court after hearing the patties may terminate the lease or extend the same for such period as it deems proper in the circumstances:
Provided that the tenant shall not in any case be allowed to remain in possession of the building beyond the period permissible under Sub-section (1).
(3) If the tenant fails to vacate the building on the termination of the lease or as the case may be on the expiry of the period fixed by the Court under Sub-section (2), the Court shall, on an application by the landlord, pass an order for ejectment, which shall be executed as a decree and may further order that the tenant shall pay to the landlord such amount as may be determined by it as daily compensation.
There can be no dispute regarding the proposition that on the basis of Section 11(1)(e) of the Act a decree for eviction can be passed against a tenant fixed period. It will be relevant to point out that the provisions of Section 11 are subject to "those of Section 12". Under the former a tenant can be ejected only 'in execution of a decree passed by the court'. Obviously it follows that Section 12 supersedes Section 11 of the Act. Thus in spite of the provisions of Section 11, if there is an application made under Section 12 of the Act, by the landlord the court may pass an order for ejectment. What is to be noticed is that Section 12(3) provides for an order for eviction only on the basis of an application by the landlord and it will appear from Sub-section (3) itself that such an order of the court is to be executed as a decree. Therefore, the remedy provided by Sub-section (3) is independent of the remedy provided by Section 11(1) of the Act. It should also be observed that in case of Section 12 of the Act the application results in an 'order'. On the other hand, Section 11 speaks of a 'decree' passed by a court. Obviously, a decree is passed in a suit. Thus Section 11 provides for eviction on the basis of a decree passed by a court on the ground mentioned therein whereas Section 12(3) provides for another remedy of eviction by an order of the court on the basis of an application.
9. In the instant case, the petitioners have filed a regular title. They have paid court-fees thereon and prayed for a decree for eviction. In substance the suit has been filed on the allegation that the opposite party was a tenant until a fixed date and is liable to be evic ed after the expiry of the period of tenancy. Learned counsel for the opposite party has urged that it comes within Section 12(3) of the Act, because the plaintiffs have treated the defendants as 'trespassers' and claimed compensation. He relies on a Bench decision of this court in Bhagwanji Ram and Ors. v. Babu Sagir Ahmad and Ors. 1975 B.L.J.R. 384 for the proposition that damages cannot be awarded as against a tenant. So far as the general proposition of law is concerned, there can be no dispute that damages are awarded against trespassers. In that case, damages had been awarded against the 'tenant' continuing in possession after the determination of the lease. The suit was filed under Section 11 of the Act. I may point out that the general law may be subject to any special provision and such a provision is there in secton 12(3) wherein an order to evict a tenant, damages may be allowed. It is thus not possible to lay down that if damages are claimed against a 'tenant continuing in possession' after the determination of the lease, it must be deemed to be a suit under the general law and not under the Act. The argument would demolish itself because even Section 12(3) applies to a case of a tenant', and not to the case of a 'trespasser'. The court below also seems to have missed this point. Whether the suit is under Section 11(1)(e) or it is an application under Section 12(3) of the Act, in both cases, it is directed against a 'tenant', who fails to vacate the building, 'Teant' has been defined in Section 2(e) which includes "a person continuing in possession after the termination of the tenancy in his favour. The suit cannot, therefore, be said to be against a stranger or trespasser. The court below has not held that the Ace has no application What it has held is that it is a suit under Section 12(3) of the Act, The view is obviously erroneous.
10. The only ground on which the whole argument of the learned Counsel for the opposite party has been passed in this case is that the petitioner said in his plaint that the opposite party became trespassers after the expiry of the lease and, therefore, they were bound to pay compensation, and next that they did not claim a decree for rent during the period of the suit. Tt is well known that plaints in this county are often drafted inartistically ; secondly, that the real nature of a suit has to be gathered from the plaint as a whole upon the facts on the basis of which the claim is founded ; thirdly, that the application of a particular law need not be contained in a pleading and even if there be a wrong pleading in regard to the provision of law applicable to the case, that will not determine the real nature of the suit. Obviously the plaintiff-petitioners thought that the opposite party had become 'trespassers' after the expiry of the lease. The law, on the other hand, lays down that they are statutory tenants. There is no estoppel against the statute. It cannot, therefore, be said that because of this statement, the suit becomes one against a trespasser and not against a 'tenant' within the meaning of the law. There is thus no substance in the contention of the learned Counsel for the opposite party.
11. I may further add that Section 11-A of the Act does not lay down that a court will pass an order for payment of rent month by month or for arrears of rent only in cases where a decree for rent has been prayed for as one of the reliefs in the suit itself. In this connection it will be relevant to mention a decision of a Full Bench of this Court in the case of Ramnandan Sharma v. Mst. Maya Devi and Ors. 1974 B.L.J.R. 584. There it was held that Section 11-A refers to the rent which falls during the pedency of the suit. Thus the legislature has given another remedy to a landlord to recover the arrears of rent falling due during the pendency of a suit by an application thereunder. Thus, in my view, there is no basis for the argument that since arrears of rent accruing due had not been claimed as a relief in the suit, it could not be granted by way of an order in any application under Section 11-A of the Act.
12. With regard to the argument that damages had been claimed by the petitioner in the suit, learned Counsel for the petitioners has urged that he will have to get his plaint amended inasmuch as damages cannot be awarded against a tenant, but against a trespasser. It is not necessary for me to say anything on the point because that is a question with regard to the merits of the suit itself. That apart, it may be pointed out that the petitioners in their plaint have prayed for any other relief to which they may be deemed entitled to. It is well known that if the court finds that one relief cannot be granted to a plaintiff, but another can be so granted on the basis of the facts brought before the court, it is open to the court to grant the relief available. The mere fact that the plaintiffs have claimed damages and compensation will not determine the real nature of the suit.
13. For the reasons aforesaid, I find that the court below has erred in the interpretation of Section 11-A of the Act and Section 12(3) thereof and thus refused to exercise jurisdiction vested in it by law. The order of the court below is, therefore, set aside and it is hereby directed to consider the application under Section 11-A of the Act on merits and dispose of the same in accordance with law.
14. In the result, the application is allowed. In the circumstances of the case, there will be no order as to costs.