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1984 Supreme(Pat) 191
HIGH COURT OF PATNA
A. K. Sinha, J.
Md. Israil - Appellant.
Vs.
Bibi Asghari - Respondents.
Appeal from appellate decree no. 219 of 1981.
Decided on : 9.5.1984
For The Respondent: M/s Parmanand Sharan Sinha and Hari Shankar.
For the Respondent: Mr. Bipin Behari dents Sinha no. 2.
A tenant who fails to pay rent within the statutory period is a defaulter in the eye of law and is liable to be evicted.
Headnote:
RENT CONTROL - DEFAULT IN PAYMENT OF RENT - SECTION 106 OF THE TRANSFER OF PROPERTY ACT - NOTICE - SERVICE - INTERPRETATION - EFFECT ON TENANCY - EVICTION.
Fact of the Case:
Plaintiffs filed a suit for eviction of the defendant (tenant) on the ground of default in payment of rent and personal necessity. The defendant claimed to have tendered rent which was refused by the plaintiff and that he had been sending the rent by money orders. The trial court decreed the suit, holding that the defendant was a defaulter. The appellate court dismissed the defendant's appeal.
Finding of the Court:
The court held that the defendant was a defaulter in the eye of law as he failed to prove that he had remitted the rent for the months in question within the statutory period and that it was refused by the landlord. The court also held that the notice under section 106 of the Transfer of Property Act was not served in accordance with law and the tenancy was not determined.
Issues: 1. Whether the defendant was a defaulter in the eye of law? 2. Whether the notice under section 106 of the Transfer of Property Act was served in accordance with law?
Ratio Decidendi: 1. The court held that the defendant was a defaulter in the eye of law as he failed to prove that he had remitted the rent for the months in question within the statutory period and that it was refused by the landlord. 2. The court held that the notice under section 106 of the Transfer of Property Act was not served in accordance with law and the tenancy was not determined.
Final Decision: The court dismissed the defendant's appeal.
A. K Sinha, J.-This second appeal is by the defendant (tenant) against a JUDGMENT : of affirmance.
2. The plaintiffs brought a suit for eviction of the defendant (tenant) on the ground of default in payment of rent for the months or April to October, 1977 and also on the ground of personal necessity. The defendant was inducted in the house in question by the original owner, i.e. Hari Mohan Jhunjhunwala. The original owner sold the house to plaintiff no. 2 On 12.4.1977 by a registered sale-deed. Plaintiff no. 2 purchased the house in question in the name of plaintiff no.1 (his wife). The defendant was a month to month tenant in the house in question at the rate of Rs. 351- per month according to the English calendar. The original owner after the sale of the house to plaintiff no. 2, served a notice upon the' defendant on 18.5.77 informing him that the house in question was sold to the lady (Plaintiff no. 1) and further directed the defendant to pay rent to the plaintiffs.
3. The plaintiffs' case was that defendant did not pay rent for the months in question amounting to Rs. 245/- and hence, he was a defaulter in the eye of law..
4. The plaintiffs also pleaded that they were residing as tenants in the house of one Dr. Hasan Ahmad and their land-lord was pressing upon them to vacate his premises and hence the plaintiffs were in need of the house in question for their own occupation. The plaintiffs also pleaded that the tenancy of the defendant had been terminated and determined under section 106 of the Transfer of Property Act with the expiry of 31st July, 1977. As the defendant did not vacate the house in question, it necessitated the filing of the present, suit.
5. The defendant contested the suit and denied the case of personal necessity as pleaded by the plaintiffs. So far as the default question was concerned, the defence was that the defendant tendered the rent to plaintiff no.
I which was illegally refused by her and thereafter he has been sending the rental every month by money ORDER :s. 'According to the defendant the suit was instituted just to pressurise the defendant as he did not agree to enhance the relit from Rs. 35/- to 150/- The defendant also pleaded that the notice under section 106 of the Transfer of Property Act was not served in accordance with law 'and the tenancy was not determined.
6. The trial court decreed the suit and held that the defendant had defaulted in paying the rent for the months in question in the eye of law, as the remission of the rental every month for the months in question was not enough in the eye of law and the defendant as and when remitting the rent should have remitted the total rent due.
7. The trial court having held that the defendant was a defaulter in the eye of law did not consider the question of personal necessity at all.
8. The defendant preferred appeal. The court of appeal below dismissed the defendant's appeal and held that the defendant was a defaulter in the eye of law and he was liable to be evicted from the suit premises. It further held that the plaintiffs required the suit premises for their own use, occupation and business, as the plaintiffs were running their business in a rented shop.
9. The learned Counsel appearing for the defendant has submitted that the court of appeal below has gone wrong in law to hold that the defendant must prove refusal (by the landlord) within time. The learned Counsel further submitted. that the finding given by the court of appeal below to the effect that the plaintiffs required the suit premises for ,their personal necessity was not binding in second appeal, as it had made out a third case. According to the learned Counsel, the plaintiffs required the suit premises for their personal residence; whereas, the court of appeal below has held that the suit premises were required for running the plaintiffs' business.
10. In ORDER :to appreciate the argument advanced by the defendant appellant it is desirable to state a few more facts. The
