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1984 Supreme(Pat) 370
HIGH COURT OF PATNA
P. S. Mishra, J.
Sri Nand Gopal Prasad – Appellant
Vs.
Mostt. Prem Lata Devi and others - Respondents
Appeal from Appellate Decree No. 151 of 1984
Decided on : 7-11-1984
For the appellant : M/s S.C. Ghose and K.K.Ghose.
For the respondents: M/s K.P. Sinha, Deogovind Pd., Ashok Kumar and A. B. Sharan.
A tenant can remit rent by money order even if the landlord has not refused to accept the rent in cash.
Headnote:
BIHAR BUILDINGS (LEASE, RENT & EVICTION) CONTROL ACT, 1947 - SECTION 11(1)(D) - REMITTANCE OF RENT - DEFAULT - LIMITATION - TRANSFER OF PROPERTY ACT, 1882 - SECTION 106 - NOTICE TO DETERMINE TENANCY - PERSONAL NECESSITY.
Fact of the Case:
The appellant, a tenant in a house in Patna, challenged the eviction order passed against him by the lower courts. The appellant claimed that he had remitted rent by money orders, paid corporation taxes, and made other payments, and that there was no default in payment of rent. The appellant also argued that a notice under section 106 of the Transfer of Property Act was necessary to determine the tenancy, and that the suit for eviction was premature.
Finding of the Court:
The court held that the appellant had not committed any default in the payment of rent, as he had remitted rent by money orders in accordance with section 13 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947. The court also held that a notice under section 106 of the Transfer of Property Act was not necessary to determine the tenancy, and that the suit for eviction was not premature.
Issues: 1. Whether the appellant had committed any default in the payment of rent. 2. Whether a notice under section 106 of the Transfer of Property Act was necessary to determine the tenancy. 3. Whether the suit for eviction was premature.
Ratio Decidendi: 1. The court held that the appellant had not committed any default in the payment of rent, as he had remitted rent by money orders in accordance with section 13 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947. The court interpreted section 13 to mean that a tenant can remit rent by money order only if the landlord refuses to accept the rent in cash. However, the court also held that the Supreme Court had overruled this interpretation in a subsequent case, and that a tenant can remit rent by money order even if the landlord has not refused to accept the rent in cash. 2. The court held that a notice under section 106 of the Transfer of Property Act was not necessary to determine the tenancy, as the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 provides a specific procedure for determining the tenancy. 3. The court held that the suit for eviction was not premature, as the appellant had committed a default in the payment of rent.
Final Decision: The court dismissed the appeal and upheld the eviction order passed by the lower courts.
P. S. Mishra, J.-The litigation which started in the year 1958, for eviction of the appellant, who is a tenant in a house situated in one of the quarters of the town of Patna, has come for the third time to this Court.
2. The original suit, being Title suit no. 58 of 1958 concluded in favour of the tenant-appellant, as this Court found in Second Appeal no, 192 of 1963 that a suit for eviction of a tenant under the Bihar Building (Lease, Rent & Eviction) Control Act, 1947 could not have been instituted without determining the tenancy by a notice under section 106 of the Transfer of Property Act. This Court positively held accordingly that the suit was premature. The original plaintiff-respondents instituted a fresh suit, being. Title suit no. 141 of 1971 after serving a notice under section 106 of the Transfer of Property Act. The Munsif, 3rd court, Patna dismissed the said suit by his JUDGMENT : dated 23-8-1976. The plaintiffs' appeal, which was eventually heard by the Additional Subordinate Judge VI, Patna, was also dismissed on 7-6-1977. Their appeal, being Second Appeal no. 672 of 1977, however, was allowed on 10-10-1980 by this Court and the case was remanded to the First Appellate court to find out whether the assertion of the plaintiffs, that rent from January, 1956 had not been paid, was correct or not, and in that connection to scrutinise the evidence to see whether the story of tender and refusal of rent was correct, Whether the rent that was being remitted was valid payment, whether there was any evidence to support the defendant's version that be bad paid the corporation taxes and if so what was the amount which would be adjusted in the rent under section 8A(2) of the Act; and whether it was necessary for the court to consider the evidence of default for a period prior to three years from the date of institution of the suit. After remand the appeal has, however, been disposed of by the Additional Subordinate Judge VIII, Patna in Title Appeal no. 140/38 of 1976/1983 Granting to the defendants liberally, all that can be said in favour of a tenant, the learned Subordinate Judge VIII has allowed the appeal and the suit. He has directed the tenant-appellant to ha.1d over vacant possession of the premises to the co-appellant. In default, he has said, the decree will be executed.
3. Although this litigation has dragged on for several years and from court to court, yet a number of controversies raised before me on behalf of the appellant require attention. The respondents, who have entered appearance as caveators in the appeal, keeping in view the facts and the circumstances of this case, and the appellant, have agreed that the appeal should be heard and finally disposed of at this stage. After once hearing at length I called for the record and after the records have been received, I have heard the parties under ORDER :41 rule 30 of the Code of Civil Procedure instead of hearing only under ORDER :41 rule 11 of the Code of Civil Procedure.
4. Before, however, I deal with the contention raised before me, a short statement of facts is necessary: The original plaintiffs filed a Money Suit, being Money Suit no. 578 of 1955/128 of 1959 in the court of Munsif II, Patna for a decree of arrears of rent of Rs.300/-in respect of the house in question. They also filed Title Suit no. 58 of 1958 in the same court for eviction of the defendant on the ground of default and personal necessity. Both the suits were tried analogous and the litigation that followed ended by the JUDGMENT : in Second Appeal No. 192 of 1963.
5. The defendant took the house of the plaintiffs at a rental of Rs. 300/-on 1.3.1948. The House Controller, however, fixed fair rent at Rs. 180/- per month on 8.12.1958 with effect from the date of the filing of the petition before him for the said purpose, that is to say, with effect from 15.9.1958 in B. B. C. Case no. 195 of 1958. According to the plaintiffs the defendant fell in arrears of rent from September, 1955 t
