Patna High Court
Keshar Sao vs Hiralal And Ors. on 17 September, 1975
Equivalent citations: AIR1976PAT237, AIR 1976 PATNA 237
ORDER H.L. Agrawal, J.
1. In this application under Section 115 of the Code of Civil Procedure by the defendant, the correctness of the order passed under Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the 'Act') by the Court of appeal below is under challenge on the ground of limitation.
2. A suit for eviction of the defendants on the ground of default in making payment of rent for the premises in question was instituted by two plaintiffs. In the trial Court, the suit was dismissed on a finding that the tenants had not made any default in payment of rent and were, therefore, not liable to eviction. In the trial Court, no application under Section 11-A of the Act was made.
3. Against the judgment of the trial Court, an appeal has been filed before the District Judge, Gaya, by only one of the heirs of the deceased plaintiff No. 1, making the other plaintiffs as respondents. In the appeal, an application under Section 11-A of the Act was made on 8-2-1974 by the appellant opposite party No. 1 for an order on the tenant petitioner to deposit the entire arrears of rent as well as the current and future rents. One of the grounds on which the prayer was contested by the petitioner was that no order could be made with respect to the arrears which had become barred and were not legally recoverable. The learned District Judge, however, has directed the petitioner "to deposit arrears of rent and also to pay the current rent as stipulated under the law........." Placing reliance upon an earlier decision of this Court in the case of the Managing Committee v. Tripurary Charan Palit (AIR 1973 Pat 60) which then held the field, he negatived the objection of the petitioner on the question of limitation.
4. Mr. Awadh Kishore prasad appearing for the defendant petitioner has challenged the order of the learned District Judge on the question of limitation. The earlier view of this Court, no doubt, was that the question of limitation did not arise while passing orders under Section 11-A of the Act. A Division Bench of this Court in the case of Sashadhar Das v. Harihar Prasad (AIR 1973 Pat 361), however, took a different view and held that the expression "arrears of rent'' in Section 11-A meant "arrears of rent lawfully payable", expressly overruling the earlier view of this Court expressed in various Single Judge decisions. According to the view of the Division Bench, "only such arrears of rent accrued due prior to the institution of the suit may be ordered to be deposited which can be legally recovered by the landlord and is not barred by any law. The question again fell for consideration before a Full Bench of this Court in the case of Ram Nandan Sharma v. Mst. Maya Devi, 1975 BLJR 66 = (AIR 1975 Pat 283) (FB) Chief Justice, Untwalia (now a Judge of the Supreme Court) who delivered the main judgment on behalf of the Full Bench, held, overruling the aforesaid Bench decision of this Court in the case of Sashadhar Das that no arrears of rent in respect of any period prior to the institution of the suit can be directed to be deposited under this section, inasmuch as the legislature by providing a period of fifteen days for deposit of rents in arrears as also rent month by month did contemplate arrears of rent accruing due during the pendency of the siuit only and not prior to it. As Hon'ble Mr. Justice Untwalia was himself a party to the various earlier decisions of this Court taking the view that there was no period of limitation, he expressed himself in paragraph 14 of the judgment as follows:
"On a careful and deep study of the matter I revise my opinion, specially on a comparison of the provisions of the Bihar Act with those of the other State Acts. If the period of arrears of rent under Section 11-A of the Bihar Act is cut down to that of the pendency of the suit, the dif-
ficulty of limitation would not arise at all."
His Lordship refused to decide as to whether to an application under Section 11-A of the Act, Article 137 of the Limitation Act, 1963, providing a period of three years from the date of accrual of the right to apply, applied. He, however, indicated his doubt to the application of this Article to such an application for the reason that "the section in terms permits filing of such an application at any stage of the suit". His Lordship overruling the Bench decision of this Court in the case of Sashadhar Das further observed :
"I respectfully agree with the distinction, made by Shambhu Prasad Singh, J., in Sashadhar Das's case between provisions like Section 11-A of the Bihar Act and Section 114 of the Transfer of Property Act; in the latter, on payment of the barred debts, the tenant is relieved of forfeiture of the lease. I may, however, add that I do not accept as correct.....
that a barred debt is not lawfully payable."
K.B.N. Singh, J. while agreeing with the main judgment delivered by Chief Justice Untwalia, added a few words of his own in the aforesaid Full Bench decision as follows:
"I also wish to add that filing of an application under Section 11-A of the Bihar Act is not circumscribed by any period of limitation, and all arrears of rent accruing during the pendency of the suit, which expression in certain circumstances, may mean pendency of appeal or appeals, as observed by his Lordship the Chief Justice, can be ordered to be deposited."
It has again been observed:
"In my opinion, by providing for filing of an application under Section 11-A to be filed "at any stage of the suit" the Bihar Legislature intended such an application to be not circumscribed by way of limitation. The Bihar Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1955 (Bihar Act III of 1955), which incorporated Section 11-A in the Bihar Act (Bihar Act III of 1947), having been assented to by the President of India under Article 254 (2) of the Constitution, its provisions will prevail, even if Article 137 of the Limitation Act were to cover such application."
5. On a careful consideration of the decision of the Full Bench of this Court, relevant portions of which have been extracted earlier, in my opinion, the said decision lays down that although no order can be made on an application under Section 11-A of the Act directing a tenant to make any deposit prior to the institution of a suit, there was no limitation on the ground of the duration of the suit or the appeal. In other words, if the suit or its continuation in appeal is for more than three years even, there is no bar for allowing all the arrears of rent accrued due during this entire intervening period on an application under Section 11-A.
6. The learned District Judge in the present case, however, has not determined the period for which the rent was in arrears which the tenant respondent No. 1 before him was to deposit. As already said above, the suit of the plaintiff on merits has failed in the trial Court in which, default in making the payment prior to the institution of the suit was alleged. The learned District Judge perhaps intended to direct the defendant petitioner to make the deposit for that period as well. That could not be allowed as the said period also fell prior to the institution of the suit, apart from the finding of the trial Court. The question arises as to whether, if an application is made in an appeal by the landlord, can an order under Section 11-A be made with respect to the entire period during which a suit has remained pending? As already discussed above, in view of the decision of the Full Bench, there is no impediment in the way of the Court of appeal to make such an order, as the question of limitation does not arise at all. I would, accordingly, hold that the period of arrears in this case will be the period right from the date of the institution of the suit till the date of the order by the Court of appeal below and not earlier to that, as that is the period of the pendency of the suit within the meaning of the decision of the Full Bench.
7. The records of the trial Court have not been forwarded, but as stated by Mr. Awadh Kishore Prasad on the basis of the certified copy of the decree of the trial Court that the suit was instituted on 26-9-1967, the petitioner must deposit the arrears from the said date till the month of August 1975, at the rate of Rs. 16 per month, within a period of two months (as agreed to by Mr. Shivanand Pd, Sinha, appearing for the plaintiff-opposite party No. 1). He must also go on depositing the rents accruing due every month punctually by the 15th day of the each succeeding month as contemplated under Section 11-A of the Act, failing which his defence against ejectment will stand struck off. As the appeal has been preferred before the District Judge by only one of the landlords, the learned District Judge will consider the desirability of permitting him to withdraw the said amount. He may pass an appropriate order, either to keep the amount in deposit or permitting its withdrawal on furnishing appropriate security, if an application is made for its withdrawal, after the deposit is made.
8. In the result, this application succeeds in part as indicated above, but I shall make no order as to costs.