Patna High Court - Orders
Abhai Kant Shukla @ Abhai Shuk vs Jawahar Prasad Gupta on 3 September, 2013
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13989 of 2010
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1. Abhai Kant Shukla @ Abhai Shukla S/O Late Kuma Kant Shukla R/O
Moh Pokhara, Ganesh Cinema Road, P.O.& P.S.Hajipur, Distt-Vaishali
.... .... Petitioner/s
Versus
1. Jawahar Prasad Gupta S/O Suamber Prasad Proprietor Indian
Commercial Institute, Cinema Road, Hajipur, Permanent Address , Vill-
Sonepur, P.O. & P.S.Sonepur, Distt-Saran, At Present Residing At Bag
Dulhan, Near Community Bhawan, P.O.& P.S. Hajipur, Distt-Vaishali
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr S. S. Dvevedi, Sr Advocate
Mr. Prashant Kumar
For the Respondent/s : Mr. Brajesh Kumar
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
ORAL ORDER
5 03-09-2013Petitioner wants quashing of the order dated 28.10.2009 passed by the learned Munsif I, Vaishali at Hajipur, by virtue of which a petition filed under Section 15 of the Bihar Building (Lease, Rent & Eviction) Control Act, to deposit arrears of rent and current rent in a suit for eviction filed against the respondent stands rejected. Eviction Suit No.1 of 2007 was instituted against the private respondent seeking his eviction from the property in question on the ground of personal necessity. The suit was registered on 22.1.2007 and accepted for consideration on 1.3.2007. The suit is going on between the parties.
During pendency of the suit, an application under section 15 of the Bihar Building (Lease, Rent & Eviction) Control Patna High Court CWJC No.13989 of 2010 (5) dt.03-09-2013 2/6 Act (hereinafter referred to as 'the BBC Act') was moved by the petitioner, who happens to be the landlord, for a direction upon the tenant/ the private respondent to pay arrears of rent as well as current rent. The prayer of the petitioner was rejected and this has become the bone of contention in the present writ application.
Stand of the earned senior counsel for the petitioner is that Section 15 of the BBC Act does entail and confer a right upon a landlord to claim not only arrears of rent subject to the law of limitation but even current rent. Since no payment of rent was being made by the tenant from July 2006, therefore, the petitioner was compelled to file such an application.
The ambit of Section 15, which was a subject matter of challenge in the case of Priyavarta Mehta v. Amrendu Banerjee, reported in 1996 (1) PLJR 732, came up for consideration. The Full Bench went into the interplay as well as validity of Section 15 of the BBC Act and came to a considered opinion about its validity in following words, which are reproduced herein below :-
"17. The Act has been enacted to protect the tenant from unreasonable eviction. However, certain provisions have been incorporated for the benefit of the landlord. Section 15 is one of such provisions which entitles the landlord to claim arrears of rent as well as current and future rent during the pendency of the suit for ejectment. The Patna High Court CWJC No.13989 of 2010 (5) dt.03-09-2013 3/6 legislature has enacted the said provision to give some relief to the landlord. A tenant cannot be evicted unless a decree for eviction is passed against him on any of the grounds mentioned under Section 11 of the Act. The disposal of cases takes long time and if the tenant is allowed to continue in possession without paying lawfully recoverable arrears of rent and current rent then the same will cause hardship and prejudice to the landlord. To meet such situation the provision has been made under the Act in regard to deposit of rent, so that the tenant may not go on fighting litigation without payment of rent. The order for payment of arrears of rent prior to the institution of the suit is not passed in a mechanical manner and on the other hand the court after giving an opportunity of hearing to the landlord and the tenant passes an order. In my view, the said provision cannot be attacked or challenged on the ground of unreasonableness or arbitrariness.
18. A Division Bench of this Court in the case of Dwarika Pd. Kapri (supra) has held that Section 15 empowers the court to order for the tenant to deposit the arrears of rent even for the period prior to the institution of the suit subject to law of limitation and the said view taken by the Division Bench, in my view, is a correct one. In Ratanlal Nai's case (supra), this Court declared the said provisions ultravires only on the ground that on a prime facie determination a direction to pay the arrears of rent Patna High Court CWJC No.13989 of 2010 (5) dt.03-09-2013 4/6 before institution of the suit will be unfair and arbitrary as the Act has got the provisions to get such arrears of rent realized by a petition u/s 15 of the Act recovered from the landlord. If the said reasoning will be treated to be a ground for declaring the provision of Section 15 of the Act ultravires with regard to arrears of rent prior to the institution of the suit then in that situation the provision in the said section for payment of arrears of rent after institution of the suit, current rent and future rent shall be also arbitrary and ultravires, as there is no provisions under the Act for recovery of the aforesaid amount from the landlord after disposal of the suit in favour of the tenant."
In view of the Full Bench decision, the right of the petitioner or the landlord to claim arrears as well as current rent cannot be disputed as a legal proposition. However, in the present case, on a reading of the order passed by the learned Munsif it is evident that in the plaint itself the petitioner had made a specific averment that he is filing the eviction suit on the ground of personal necessity and so far as claim of arrears of rent etc. is concerned, he may file yet another proceeding in this regard. It is this assertion or declaration in the plaint which compelled the learned Munsif to hold that the application under Section 15 of the BBC Act was uncalled for.
Patna High Court CWJC No.13989 of 2010 (5) dt.03-09-20135/6
The assertion or the averment made in the plaint is one aspect of the matter. However, if a law provide a right in favour of the landlord to claim certain benefit during the pendency of the suit for eviction, that proposition cannot be diluted or made redundant merely on a declaration made by a plaintiff before the court of law because the statute cannot change on acceptance or denial of a right by a litigant before a court of law.
In view of the above, prima facie, this Court is of the opinion that there was an occasion for the petitioner to maintain an application for grant of at least current dues of rent which he is claiming against the private respondent and there was an occasion for the learned Munsif to consider at least that aspect of the prayer made in the petition filed on 20.11.2007.
Counsel representing the private respondent, however, submits that he has filed a suit for specific performance against the present petitioner on the basis of a Mahadnama, which was entered between them for which even advance payment has been made. However, when the petitioner refused to execute a sale deed in his favour he was left with no option but to file a suit against him which has been registered as Title Suit No.84 of 2009.
It is also his case that as part of that arrangement or agreement the petitioner/ the landlord has also agreed and duly Patna High Court CWJC No.13989 of 2010 (5) dt.03-09-2013 6/6 recorded in a register that no rent will be payable after July 2006.
The Court would not like to comment upon what is the assertion or the claim, which has been made against the present petitioner in the other title suit. That, no doubt, will be decided on its own merit but confining its to the present dispute relating to eviction suit which has been filed against the private respondent, the law does confer a right on the landlord to claim arrears of rent as well as current rent.
In view of the same, the impugned order dated 28.10.2009 is hereby set aside. Let the learned Munsif decide the application dated 20.11.2007 afresh after hearing the parties, preferably within a period of eight weeks from the date of production/ communication of a coy of this order.
Writ is allowed.
(Ajay Kumar Tripathi, J) sk