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PATNA HIGH COURT
Shambhu Prasad Singh and A.N.Mukharji JJ.
Sashadhar Das
Versus
Harihar Prasad
Civil Revision No. 1460 of 1970 ; 1545 of 1970 ;
Decided On : APRIL 10, 1973
Where the court in an application under Sec. 11 A passed an order for deposit of arrears of rent which was barred by time.
Held, that, Sec. 11 A of the Act has to be read together with and subject to other provisions of the Act and not independent of them. It has also to be read subject to other provisions of law. The expression "arrears of rent" in that section means "arrears of rent lawfully payable". It may not include even arrears accrued due during the pendency of the suit which is barred by limitation or any other law on the date of making an application under Sec. 11 A of the Act..........
Held further, that, arrears of rent accrued due prior to the institution of the suit cannot be ordered to be deposited under Sec. 11 A of the Act, if it is not lawfully payable, i.e. barred by law of limitation or some other law, such as Or. 2, Rule 2 of the Code of Civil Procedure. (Para 14)
II. Bihar Building (Lease, Rent and Eviction) Control Act (Act 3 of 1947) Sec. 11A - Rent payable, whether contractual or fair rent.
Where it was contended on behalf of the tenant that order under Sec. 11 A should have been passed on the basis of the rent last paid and not the fair rent,
Held, that, though ordinarily direction is to be given to a tenant to make deposit at the rate of rent last paid, it is subject to variations in cases where fair rent of the house is determined by the Controller at a rate some what different from the rate at which it was last paid.............According to the scheme of the Act, once a fair rent is fixed by the Controller, it binds both the parties, i.e., the landlord and tenant and rent is to be paid accordingly. The fair rent as fixed by the Controller has to prevail over the rent fixed by agreement. (Para 7)
III. Bihar Building (Lease, Rent and Eviction) Control Act 1947 (Act 3 of 1947) - Sec. 8 A (2) - whether the tenant is entitled to adjust the municipal tax paid by him from the rent payable to the landlord.
Held, that if the landlord defaults in payment of municipal tax and it is paid by the tenant, the latter shall be entitled to recover the same from the landlord by adjustment towards the rent payable by him as if the amount paid by him were a debt due to him by the landlord. (Para 6)
Shambhu Prasad Singh, J.
1. Both these civil revisions are directed against the same order passed under Sec.11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947--hereinafter referred to as the Act. They have, therefore, been heard together and are being disposed of by this common judgment.
2. The suit was a suit for eviction of the defendant from a house situate within Muzaffarpur town on the ground of default in payment of rent for over two months and also on the ground of personal necessity. A decree for arrears of rent for the period 1-3-1967 to 30-11-1969 as also for damages from 1-12-1969 to 31-1-1970 was claimed. The rent it was asserted in the plaint, was Rs. 190.00 per month as fixed by the House Controller.
3. The case of the defendant was that the plaintiffs in collusion with the employees of Muzaffarpur Municipality got the annual municipal valuation of the premises enhanced from Rs. 220.00 to Rs. 1900.00 and on the basis of this enhanced municipal valuation got the fair rent determined by the House Controller at the increased rate. His case further was that the rent of the holding was Rs. 65/- per month only and he had been paying rent at this rate to the plaintiffs all along and that the plaintiffs never paid the municipal taxes of the holding in the occupation of the defendant and, therefore, the defendant had to pay the municipal taxes from 1965 onwards. Thus he claimed that no rent was due from him to the plaintiffs who also did not require the house for their personal use either.
4. On an application of the plaintiffs under Sec.11-A of the Act, which was contested by the defendant, the court below has held (1) that the defendant should deposit rent at the rate of Rs. 190.00 per month. (2) that he is liable to pay even arrears of rent which is barred by time at that rate as fixed by the Controller and (3) that he should deposit arrears of rent at the said rate from 17-4-1965 after deducting the amount of municipal taxes to the tune of Rs. 2843.20 paid by him; and has directed the defendant to deposit by 17-11-1970 all arrears of rent at the said rate of Rs. 190.00 per month up to August, 1970, the rent for September. October and November, 1970 by 15th of December. 1970 and thereafter the rent for December. 1970 and following months by 15th of the succeeding month.
5. Civil Revision No. 1460 of 1970 has been filed on behalf of the defendant. The other Civil Revision No. 1545 of 1970 has been filed by the plaintiffs. Mr. B. C Ghose, learned counsel appearing for the defendant, has contended (1) that the court below has acted illegally in exercise of jurisdiction in directing the defendant to deposit arrears of rent at the rate of Rs. 190.00 per month when the rate at which the rent was last paid was only Rs. 65/- per month, and (2) that the court below has acted illegally in exercise of jurisdiction in directing the defendant to deposit rent from 17-4-1965 to 28-2-1967 which was not claimed in the suit and stood time barred. Mr. P.N. Singh, learned counsel for the plaintiffs, has urged that the court below has acted illegally in exercise of jurisdiction in allowing the defendant to adjust the amount of municipal taxes paid by him towards arrears of rent.
6. I propose to deal first with the contention of learned counsel for the plaintiffs raised in Civil Revision No. 1545 of 1970. In support of his contention that the court below ought not to have allowed deduction of municipal taxes. Mr. Singh has placed reliance on a Bench decision of this Court in Sagarmal Agarwalla V/s. Smt. Annapurna Neogi, 1963 BLJR 334 = (AIR 1964 Pat 298). He has submitted that the court below was required to fix the arrears of rent at the rate last paid or at the rate of fair rent fixed by the Controller and since in the instant case the Controller had determined the fair rent of the premises in question at Rs. 190.00 per month, the court below should have directed the defendant to deposit the arrears of rent a
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