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1988 Supreme(Pat) 282
PATNA HIGH COURT
Uday Sinha and Satyeshwar Roy JJ.
Ram Tahal Modi
Versus
Ratan Lal
Civil Revision No. 260 of 1987 ;
Decided On : AUGUST 2, 1988
A transferee pendente lite cannot take advantage of the default in payment of rent committed by the tenant before the transfer of the suit property.
Headnote:
LANDLORD AND TENANT - EVICTION - DEFAULT IN PAYMENT OF RENT - TRANSFEREE PENDENTE LITE - WHETHER CAN TAKE ADVANTAGE OF DEFAULT COMMITTED BY TENANT BEFORE TRANSFER - RENT ACT, 1982, S. 11(1)(D).
Fact of the Case:
The original plaintiffs, Sahay and Choudhary, filed suits for eviction of tenants, Modi, Diwakaran, and Mazumdar, on various grounds, including default in payment of rent. During the pendency of the suits, Sahay and Choudhary transferred the suit properties to Ratan Lal and Raj Kumar Gupta, respectively, who were added as plaintiffs. The trial court and the lower appellate court decreed the suits in favor of the transferees on the ground of default in payment of rent.
Finding of the Court:
The court held that the transferees pendente lite could not take advantage of the default in payment of rent committed by the tenants before the transfer of the suit properties. The court reasoned that the transferees were not the landlords in relation to the tenants when the cause of action accrued and that they could not continue the suits for breaches which became complete before the suits were filed.
Issues: 1. Whether the transferees pendente lite can take advantage of the default in paying the rent alleged to have been committed by the tenants while the owner and the landlord was the transferor who had filed the suits? 2. In absence of any recital in the sale deed that Sahay transferred the arrear rent also to Ratan Lal, whether the latters prayer for amendment of relief for a decree for arrear rent could have been allowed? 3. Whether tender of rent is a pre-condition for remittance of rent by money order? 4. Whether any condition which is mentioned on the rent receipt, can form stipulation for the agreement between the lessor and the lessee.
Ratio Decidendi: 1. The transferees pendente lite cannot take advantage of the default in payment of rent committed by the tenants before the transfer of the suit properties because: a) They were not the landlords in relation to the tenants when the cause of action accrued. b) They could not continue the suits for breaches which became complete before the suits were filed. 2. In absence of any recital in the sale deed that Sahay transferred the arrear rent also to Ratan Lal, the latters prayer for amendment of relief for a decree for arrear rent could not have been allowed. 3. Tender of rent is not a pre-condition for remittance of rent by money order. 4. Any condition which is mentioned on the rent receipt cannot form stipulation for the agreement between the lessor and the lessee.
Final Decision: The court allowed the second appeals filed by the tenants, set aside the judgments and decrees of the courts below, and dismissed the suits. The court also allowed the civil revision application and set aside the order of amendment of plaint passed by the court below.
SATYESHWAR ROY, J.
1. In both the second appeals and the civil revision application one identical question is involved. In the second appeals other questions are also involved. In view of the fact that identical question involved in all these cases is very crucial, those were heard together and are being disposed of by this judgment.
2. This civil revision application arises out of an order passed by the Court below on an application filed under O.6, R.17 of the Civil P.C. (the Code for short) by which it allowed the amendment of the plaint at the instance of the transferee of the suit property from the original plaintiff. In the plaint it was stated by Akhouri Bajrang Sahay (Sahay for short), the original plaintiff, that Ram Tahal Modi (Modi for short) was defaulter in payment of rent and Modi, therefore, was liable to be evicted from the building. Eviction on the ground of personal necessity was also prayed. Sahay transferred the suit property to opposite party, Ratanlal during the pendency of the suit.
Sahay thereafter died. His name was deleted. Ratan Lal in his application for amendment of the plaint, inter alia, stated that Sahay had transferred the suit property along with arrears of rent to him. He asserted that he was entitled to prosecute the suit for a decree on the ground of default in payment of rent by Modi which occurred when Sahay was the owner and landlord and also on the ground of personal necessity. Decree for arrear rent was also prayed. The prayer was allowed by the Court below.
3. The matter came up for admission on 3-8-1987 before a learned single Judge. The point canvassed was whether a transferee pendente lite may pray for a decree for eviction on the ground of a default in payment of rent alleged to have been committed by the tenant before the property was transferred. It was noticed that there were two conflicting decisions of this Court on this point, namely, Nand Gopal Prasad V/s. Most. Prem Lata Devi, 1985 Pat LJR 923 and Bibi Saboo V/s. Bibi Jaibusissa, 1986 Pat LJR 1042, both rendered by P.S. Mishra, J. In Nand Gopal it was held that the transferee can pray for eviction of a tenant on, the ground of default in payment of rent when the property belonged to the transferor. In Bibi Saboo it was held that the transferee cannot take advantage of such default. In Bibi Saboo the case of Nand Gopal was not noticed.
In view of these conflicting decisions, the learned single Judge (S.B. Sinha, J.) in his order dt. 3-8-1987 observed that the matter should be heard by a Division Bench. In this case we are concerned with that part of the order by which the Court below allowed Ratan Lal to prosecute the suit for eviction of Modi on the ground of default in paying the rent alleged to have been committed long before the property in suit was transferred to Ratan Lal by a registered instrument dt. 29-3-1986 and also the amendment in the relief portion by which the prayer of Ratan Lal for a decree of arrears of rent was allowed.
It may noticed that in the sale deed arrear rent was not specifically assigned by Sahay to Ratan Lal.
4 The two second appeals were listed for admission before one of us (S. Roy, J.) on 7-8-1987. One of the substantial questions of law involved in both the appeals was: whether the transferee landlord could take advantage of the default in payment of rent alleged to have been committed by the tenant prior to transfer of the property. The order passed in the civil revision application was noticed and it was ordered that both the second appeals should be heard by a Division Bench. This is the reason why the civil revision application and the two second appeals were listed for hearing before a Division Bench.
5. So far the two second appeals are concerned, Durga Prasanna Choudhary (Choudhary for short) filed title suit No. 60 of 1983 and title suit No. 59 of 1983 for eviction of K. Diwakaran (appellant in S.A. No. 61 of 1987/R) and H.S. Mazumdar (appellant in S.A. No. 62 of 1987/R) res
