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PATNA HIGH COURT
V.Ramaswami, K.Sahai and N.L.Untwalia JJ.
Niranjan Pal
Versus
Chaitanyalal Ghosh
Appeal From Appellate Decree No. 467 of 1959 ; 468 of 1959 ; 957 of 1959 ;
Decided On : APRIL 28, 1964
Whether determination of a tenancy is a pre-condition to the institution of an action for eviction under Sec. 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947).
Fact of the Case:
The plaintiff-landlord, who is the respondent in this Court, started proceedings under old Sec.11 of the Control Act for eviction of the tenant on the ground of default in payment of rent from January to April, 1954. The Controller passed an order of eviction; but, by an order dated the 17th August, 1956, the Commissioner set aside the eviction order. Thereafter, the landlord instituted the suits, out of which these appeals have arisen, on the 30th August, 1956. His case is that two parts of the house were separately "let out to the defendant on a rental of Rs. 507- per month for each part, and that he has defaulted in paying the rent for both parts from January, 1954 to the 30th August, 1956. Hence, the plaintiff has sought decrees for eviction of the defendant under Sec.11 (1) (d) of the Control Act.
Finding of the Court:
In my judgment, however, there is substance in the third point. The preamble of the Control Act shows that the object of the enactment is to regulate the letting of buildings, to control rent and to prevent unreasonable eviction or tenants. There is nothing in the Act which can be interpreted as repealing the entire existing law relating to leases of buildings. The observation of Megarry at page 171 of "Rent Acts" (7th Edition) applies fully, to the Control Act in question, and it may be quoted; "The Acts do not interfere with leases and tenancy zgremenis more than is necessary to carry out their supposes; they are facts for the protection of tenants, and not Acts for the penalising of landlords. Looked at from the landlords point of view, the Acts are restrictive, and not enabling, conferring no new right of action out restricting existing rights. Consequently, if apart from the Acts a landlord is Unable to evict his tenant or raise his rent, the Acts do not enable him to do either of these tiling. For example, if a landlord grants a tenant a lease of premises within the Acts for one year certain at L8 per annum, and the lease makes no provision either for raising the rent or for determining the lease if the tenant breaks his covenants, then it is a basic rules of the Acts that the landlord cannot during the lease raise the rent, or evict the tenant, even under the circumstances set out in the Act. The. tenant holds under a contractual tenancy, and has no need to call upon the Acts for assistance; his lease is a sufficient protection,"
Issues: Whether determination of a tenancy is a pre-condition to the institution of an action for eviction under Sec. 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act III of 1947).
Ratio Decidendi: Sec.11 of the Control Act strikes at the stage not of the re-acquisition by the landlord of the right to possession on determination of the lease but as the state of recovery of possession of the building in question from the tenant.
Final Decision: Second Appeals 467 and 468 of 1959 are dismissed but without costs. Second Appeal No. 957 of 1959 is allowed, judgments and decrees of the Courts below are set aside and the suit of the plaintiff appellant against defendant respondent is decreed but, on the facts and in the circumstances of the case, the parties are directed to bear their own costs throughout.
Kamla Sahai, J.
1. These three appeals have been placed before this Bench as common points of law, which are of general importance, arise in them. I shall first deal with Second Appeals Nos. 467 and 468 of 1959 which are both directed against one and the same judgment. The parties in Second Appeal No. 957 of 1959 are different, and the facts are also different. I shall deal with that appeal at the end.
SECOND APPEALS NOS. 467 AND 468 OF 1959:
2. These appeals by the tenant-defendant arise cut of two suits for his eviction from two parts of the same house under Sec.11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 [hereinafter to be referred to as the Control Act). Under the section as it stands after amendment by Bihar Act 16 of 1955, a tenant can be evicted only in execution of a decree passed by the Court on any of the grounds mentioned therein. Before the amendment, the landlord had to apply to the Controller for a direction, evicting the tenant.
3. On the 4th May, 1954, the plaintiff-landlord, who is the respondent in this Court, started proceedings under old Sec.11 of the Control -Act for eviction of the tenant on the ground of default in payment of rent from January to April, 1954. The Controller passed an order of eviction; but, by an order dated the 17th August, 1956, the Commissioner set aside the eviction order. Thereafter, th9 landlord instituted the suits, out of which these appeals have arisen, on the 30th August, 1956. His case is that two parts of the house were separately "let out to the defendant on a rental of Rs. 507- per month for each part, and that he has defaulted in paying the rent for both parts from January, 1954 to the 30th August, 1956. Hence, the plaintiff has sought decrees for eviction of the defendant under Sec.11 (1) (d) of the Control Act.
4. The defendants case is that the agreement between the parties was that he would pay rent and charges for the electricity consumed by him on presentation of a bill by the plaintiff. As bills were not presented, he is not liable to be evicted on the ground of default in payment of rent. It may be mentioned that, on the 4th September, 1956, a few days after the final disposal of the control case, the defendant remitted a sum of Rs. 3,805/- to the plaintiff as the entire rent up to that date; but the plaintiff refused to accept it.
5. The Munsif, who tried the two suits, dismissed both of them on the finding that the defendant was not liable to eviction on the ground of non-payment of rent because rent was payable on presentation of bills by the landlord, and no such bills had been presented. The learned Subordinate Judge, who heard the appeals, upset the learned Munsifs finding, and held that rent was payable every month. He also held that the remittance of Rs. 3,805/- was not valid tender because the rent was long overdue He, therefore, allowed the appeals and decreed the suits. Hence, the tenant has filed these appeals.
6. Appearing on behalf of the appellant, Mr. Lal narayan Sinha has urged the following three points;
1. A contract, whereby a tenant has to pay rent en presentation of a bill by the landlord, is a clear and definite contract, and the lower appellate Court has erred in law in holding that such a contract is non-supported under Sec.11 (1) (d) of the Control Act.
2. Having regard to the fact that the landlord made a determined effort to evict the tenant, the tender of the entire rent due within about three weeks after the Commissioners order constitutes valid tender.
3. Unless the lease of a building is determined in accordance with Sec.111 of the Transfer of Property Act (which will be hereafter referred to as the Act), a landlord has no right to get possession, and hence he cannot maintain an action under Sec.11 of the Control Act for eviction of the tenant.
7. I propose to consider these points in the order in which I have mentioned them. I do not think that there is any merit in the- first point. It is true tha
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