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2017 Supreme(Jhk) 1727
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Mr. Amitav K. Gupta, J.
Bankey Lal Gupta - Appellant
Versus
Sanjay Kumar Agrawalla - Respondent
Second Appeal No. 156 of 2015
Decided On : 31-01-2017
Mr. Ashim Kumar Sahani, Advocate, for the Appellant; Mr. Bibhash Sinha, Advocate, for the Respondent
The judgment establishes that subsequent default in rent payment constitutes a new cause of action, and the dismissal of an earlier suit for non-prosecution does not bar a subsequent suit under res judicata.
Headnote:
Eviction - Landlord and Tenant Dispute - Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 - Section 15 - Section 15 of B.B.C. Act - The court discussed the relationship of landlord and tenant, default in payment of rent, and the applicability of res judicata in the context of the eviction suit.
Fact of the Case:
The plaintiff claimed that the defendant, a tenant, defaulted in rent payment and required the premises for personal necessity. The defendant denied the landlord-tenant relationship and claimed to be a prospective purchaser.
Finding of the Court:
The trial court decreed the suit, finding the defendant liable for rent default and eviction. The appellate court affirmed the decision, holding that the defendant had indeed defaulted in rent payment and was aware of the property purchase by the plaintiff.
Issues: The issues included the maintainability of the suit, cause of action, limitation, res judicata, default in rent payment, and the bona fide requirement of the premises by the plaintiff.
Ratio Decidendi: The court held that subsequent default in rent payment constitutes a new cause of action, and the earlier suit's dismissal for non-prosecution did not bar the present suit under res judicata.
Final Decision: The appeal was dismissed as the court found no substantial question of law, and the lower courts' findings were based on proper evidence examination and application of law.
JUDGMENT
Amitav K. Gupta, J. This instant appeal has been filed impugning the judgment and decree dated 21.01.2015 and 27.01.2015 respectively passed by the Principal District Judge Dhanbad in Title (Eviction) Appeal No. 78 of 2013 affirming the judgment and decree passed by Civil Judge (Junior Division) No. 1, Dhanbad in Title (Eviction) Suit No. 44 of 2007 decreeing the suit of the plaintiff and directing the appellant for vacating the suit premises.
2. The appellant was defendant and the respondent was the plaintiff in the trial court hence, they shall be referred to as the plaintiff and defendant for sake of the convenience in the present appeal.
3. The case of the plaintiff is that schedule ''B'' property is integral part of schedule ''A'' property of which the recorded owner was Bela Ghatak. That defendant was a tenant in the schedule ''B'' premises on a monthly rent of Rs. 150/-. The plaintiff intimated the defendant about the purchase of the property and informed him that the future rent should be remitted to him, however, the defendant failed to remit the rent from March 1988 to November 1994 and consequent thereto, the plaintiff sent notice intimating the defendant that he had defaulted in payment of rent and asked him to vacate the suit premises. The plaintiff has also pleaded that he required schedule ''B'' premises for his personal necessity. That since the defendant did not pay any heed to the request of the plaintiff, Title Eviction Suit no.14 of 1995 was instituted. During the pendency of the said suit, an application under Section 15 of Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter to be referred as ''B.B.C. Act'' for short) was filed for depositing the arrears whereupon the Court directed the defendant to deposit the rent from November 1992 to July 1999 subject to the condition that the plaintiff shall not withdraw the said amount till disposal of the suit. It is stated that due to non-prosecution of the suit, the same was dismissed, where-after, a miscellaneous case was filed which also stood dismissed. After the dismissal of the Title Eviction Suit no.14 of 1995, the defendant failed to deposit the rent, and thereby, he again defaulted in payment of rent. That the cause of action for the suit arose on 01.07.1988 and subsequent thereto, when the plaintiff failed to deposit the monthly rent and also after April 2004, i.e. after the dismissal of the earlier suit.
4. The defendant contested the suit and filed his written statement denying that there was any relationship of landlord and tenant. The defendant denied default in payment of rent and the bona-fide requirement of the suit premises by the plaintiff. It was pleaded that since the earlier Title Eviction Suit no.14 of 1995 was dismissed and restoration application was also dismissed on 02.02.2007 thereafter, the second restoration petition also stood dismissed as withdrawn on 04.09.2007, hence, the second suit was barred under Order 9, Rule 9 of the Code of Civil Procedure and by principles of res judicata. The defendant has pleaded that the ex-landlady, Bela Ghatak had entered into an agreement with him for sale of the suit property accordingly, Rs. 6,000/- was paid as part of the consideration amount. That the defendant was in possession of the suit premises as a prospective purchaser, hence, no relationship of landlord and tenant exists between the plaintiff and the defendant, accordingly, the question of default in payment of rent does not arise.
On the pleadings of the parties, the trial court has framed as many as nine issues which are as under:-
(i) Whether the suit is maintainable in its present form?
(ii) Whether the plaintiff has got any valid cause of action for the suit?
(iii) Whether the suit is barred by limitation?
(iv) Whether the suit is barred under the provisions of T.P. Act or under the provisions of Bihar Building (L, R & E) Control Act?
(v) Whether the defendant is a defaulter in payment of rent for a period
