Back
PATNA HIGH COURT
N.L.Untwalia and S.K.Jha JJ.
Madholal
Versus
Madan Mohan
Appeal From Appellate Decree No. 546 of 1970 ;
Decided On : JULY 25, 1974
Where in a case the argument advanced was that no decree for eviction can be passed for default of non-payment of rent for two months in view of the section as the default in two months were not consecutive, as well as the rent of the aforesaid months were tendered along with the rent for the following month,
Held, that non-payment for anyone month does not bring about the liability to be evicted on the ground of non-payment; non-payment must beof the amount of two months rent. If the rent for one month is not paid within the time fixed by the contract or, in absence of such contract, by the last day of the month next following that for which the rent is payable, then the rent for one month is in arrear. And if the rent for another month similarly falls in arrear, then the ground for eviction is made out under section 11 (I) (d) of the Act. For attracting the said provisions of law there need not necessarily be default in payment of two consecutive months rent. If that were so, then the latter phrase in clause (d) will not have full play and non-payment of rent for one month by the last day of the month next following can not be said to be III arrear. (Para,7)
Bihar Buildings (lease, Rent & Eviction) Control, Act (1947) Sec. 13 (I)-Tender of rent by money order-Valid tender-Meaning of Distinction between tender by money order under general principles of law and under the section, when attracted.
Held, that the tender to the landlord can be made by the last date of the month and next following that for which the rent is payable, and, on refusal of the landlord to accept, the tenant may remit such rent, that means the rent for that month, by money order and continue to remit any subsequent rent also which becomes due in respect of the building. In order to escape the liability of being evicted on the ground of non-payment of rent, as expressly provided for in clause (d) of sub-section (1) of section II of the Act, rent must be validly remitted or deposited in accordance with Section 13. If there is a tender and refusal by the last date of the month, then it goes without saying that remittance by money order has got to be within a reasonable period after the refusal on the last date. That brings about a distinction between the tender through Money order under general principles of law and remittances by money order under Section 13 (1). The tender under the former must be before the expiry of the last day following that for which the rent is payable. Under the latter, remittance may be made before the expiry of that date. As no evidence was adduced to show that the tender was on refusal, the provisions of Section 13 (1) were not attracted. All the remittances made, by Money order must be deemed to be remittances made in accordance with the general principles of law.
(Para 8)
UNTWALIA, J.
1. This second appeal was placed for bearing before a learned single Judge of this court and has now been put up before us as it was directed to be placed before a Division Bench for hearing.
2. The suit out of which this appeal arises being title suit No. 1281 of 1965 was originally filed by Marlidhar Agarwalla, whose sons are plaintiff-respondents 1 to 3. He died during the pendency of the suit in the trial court, and the said respondents were substituted by virtue of order dated 1-7-1966. The suit was filed by the original plaintiff as karta of the joint family consisting of himself and his sons. The suit premises belonged to the joint family, and the tenant-defendants were sued for being evicted from them on the ground of non-payment of rent and personal necessity of the joint family of the original plaintiff. Several pleas were raised to resist the suit by the tenant-defendants. It was dismissed by the trial court. On appeal by plaintiff-respondents 1 to 3 the lower appellate court has decreed the suit on both the grounds. Some of the defendants have come up in second appeal to this court.
3. The suit premises in occupation of the defendants consist of two shop-rooms. The tenancy stood in the name of Rurmal Jagarnath which was the joint family firm of the defendants. The firm was also impleaded as a defendant and is respondent No. 4. Eventually, under the order of the House Controller the rent of the premises was fixed at Rs. 26.00 per month. As there was no special contract to the contrary, the rent was payable by the end of the month following the month for which rent was due. According to the plaintiffs case, the defendants defaulted in payment of the rent for the months of November and December, 1958 and January 1959. A suit for eviction was filed against them. It was decreed by the trial court, but in the lower appellate court it failed for want of notice under Sec.106 of the Transfer of property Act. The High Court affirmed the decision of me lower appellate court. Even after the institution of the previous suit the defendants did not pay any rent and hence they were liable to be evicted on the ground of non-payment of rent in accordance with Sec.11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control, Act, 1947 (hereinafter called the Act). The sons of the original plaintiff, according to the case made out, had become major. It was necessary for them to find out some premises for starting their business and hence the suit premises were required bona fide for the personal use of the members of the joint family which was the owner of the premises in question. The present suit was filed after service of notice under Sec.106 of the Transfer of Property Act which on refusal was deemed to have been served on them on 4-12-1964.
4. Amongst other pleas, one of the pleas raised in the written statement was that there were other members in the joint family of the plaintiff and they were necessary parties. There was an agreement between the parties that rent would be paid when demanded and that if the rent was not collected in time, then the entire rent due would be paid at the time of Diwali. The defendants did not make any default; still the plaintiffs filed a false suit in 1959. A case of personal necessity was pleaded in that suit, but it was held that there was no personal necessity. The further case of the defendants is that they always tendered rent and, on refusal by the plaintiff, they had been sending rent by postal Money order, which the plaintiff had been refusing to accept. By plaintiff, is meant the original plaintiff. It was also asserted that no son of the plaintiff was sitting idle and the suit premises were not required for the use of the family members of the plaintiffs joint family.
5. The trial court found that valid notice under Sec.106 of the Transfer of Property Act had been served, there had been no default and that the plaintiffs did not require the premises in suit f
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
