PETITIONER:
BINDESHWARY CHOUDHARY AND ANR.
Vs.
RESPONDENT:
AJAY KUMAR
DATE OF JUDGMENT: 22/04/1997
BENCH:
S.C. AGRAWAL, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
JUDGMENTD.P. Wadhwa, J.
Delay condoned.
Special leave granted.
These are landlord’s appeals against the orders of the Patna High Court holding that landlord was antitled to arrears of rent under Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Act. 1982 (for short the Act’) only from the data of institution of the suit for eviction, Section 15 in as under :
"15. Deposit of Rent by tenants in
suits for ejectment, - (1) if, in
suit for recovery of possession of
any building the tenant contests
the suit as regards claim for
ejectment. landlord may move an
application at any stage of the
suit for order on the tenant to
deposit rent month by month at a
rate at which it was last paid and
also subject to the law of
limitation, the arrears of rent, it
any and the Court after giving
heard may make any order for
deposit of rent month by month at
such rate as may be determined and
the arrears of rent, both of before
or after the institution of the
suit if any and on failure of the
tenant to deposit the arrears of
rent within fifteen days of the
date of order or the rent at such
rate for any month by the fifteenth
day of the next following month,
the Court shall order the defence
against ejectment to be struck off
and the tenant to be placed in the
same position as if he had not
defended the claim to ejectment and
further the Court shall not allow
the tenant to cross examine the
landlord’s withnesses.
(2) If in any proceeding referred
to in sub-section (1) there is any
dispute as to the person or parsons
to whom the rant is payable the
Court may direct the tenant to
deposit in Court the amount payable
by him under sub-section (1) and in
such case no person shall be
entitled to withdraw the amount in
deposit until the Court decides the
disoute and makes an order for
payment of the same.
(3) if the Court is satisfied that
any dispute referred to in sub-
section (2) has been raised by a
tenant for reasons which are false
or frivolous the Court may order
the defence against the eviction to
be struck off and proceed with the
hearing of the suit as laid down in
sub-section(1)."
Landlord filed a suit against the respondent-tenant for eviction from a shop premises under Section 11(1)(c) of the Act which provided that premises could be pot vacated if the same were reasonably and in good faith required by landlord for his own occupation or for the occupation of any person for whose banefit the premises were held by the landlord. On notice being issued to the tenant and after following the procedure prescribed the tenant was granted leave to defend the suit. After the tenant filed his written statement contesting the suit the landlord moved an application under Section 15 of the Act claiming arrears of rent for the period prior to filing of the suit and also the current rent. This application of the landlord was allowed by the subordinate Court but on a revision filed by the tenant in the High Court the said order was modified. The following an earlier single Judge Bench decision in Deep Narain vs Anil Kumar Sinha. (1905 BBCJ 782) directed the tenant to deposit the arrears of rent only from the date of filing of the suit. The landlord thereafter filed an application in the High Court seeking review of the order on the ground that the single Judge in following the decision in Deep Narain’s case (supra) did not take notice of a Division Bench decision of the High Court in Dwarika Prasad Kapri Vs. Smt. Chandra Mania Devi (1987 PLJR 864) which held that the decision in Deep Narain’s case did not lay down good law and that the Court could under Section 15 of the Act direct the arrears of rent even for the period prior to the institution of the suit to be deposited under Section 15 of the Act. Thereafter it appears that in the case of Shri Ratan Lal Nain’s vs. The State of Bihar and others (1989 PLJR 1273 = AIR 1970 Patna 107) another Division Bench of the High Court declared Section 15 of the Act as being violative of Article 14 of the Constitution in so far as it empowered the court to order deposit of arrears of rent for the period prior to the institution of the suit for ejectment of a tenant. Considering the Bench decision in Ratan Lal Nai’s case (supra) the learned single judge did not think it fit to review his earlier order whereunder he had modified the order of the Subordinate Court and directed payment of arrears of rent from the date of institution of suit. The application for review was, therefore. dismissed. Thus these two appeals.
During the pendency of the special leave petitions in this court a Full Bench of the Patna High Court in Priyavarta Mehta Vs. Amrendu Banerjee (1996 (10 PLJR 732) in the interpretation of Section 15 of the Act held that (1) the Court could order payment of arrears of rent even for the period prior to the institution of the suit for eviction and (2) the expression "Subject to law of limitation" applied only with regard to claim of arrears of rent prior to the institution of the suit. Nagendra Rai. J. who spoke for the Court. in a well reasoned judgment, has observed as under:
"Thus, after having considered the
past history of the legislation,
mischief in the previous
legislation, the intention of the
legislature in adding the aforesaid
expressions in Section 15. the
purpose and object of the
provision. I hold that Section 15
of the Act empowers the Court to
pass an order for arrears of rent
even prior to the institution of
the suit for a period not barred by
limitation as well as for arrears
of rent and rent by month to month
during the pendency of the suit.
The expression "subject to law of
limitation" applies only with
regard to claim of arrears of rent
prior to the institution of the
suit. The claim for arrears of rent
during the pendency of the suit is
not controlled on circumscribed by
period of limitation."
At this stage we may also note the Bench decision of the High Court in Ratan Lal Nai’s case (supra). In this case the bench held that Section 15 of the Act in so far as it empowered the court to order for the deposit of the arrears of rent for the period prior to the institution of a suit for ejectment of the tenant was ultra vires the powers conferred on the State Legislature. As to how it was ultra vires the Judgment proceeded as under:
"A suit for eviction on one or more
than are of the grounds enumerated
in Sail of the Act is a suit which
may besides the relief of ejectment
of the tenant include the relief of
arrears of rent. A tenant may in
such a suit raise defence against
ejectment and also contest the
Claim of any money decree. A Suit
for arrears of rent only cannot of
allowed to include any relief with
respect to any claim of arrears
prior to the period of limitation.
It will always be possible for the
Plaintiff landlord to apply under
S.15 of the Act for deposit of
arrears of rent in a suit for
eviction of the tenant in which
besides the relief of ejectment of
the tenant relief of arrears of
rent is also asked for unless the
words "of before the institution of
the suit" in Section 15 with
respect of the arrears of rent are
qualified by the words not barred
by limitation. Thus before any
decree for arrears of rent is
granted by the court the landlord
may achieve the object of claiming
arrears already barred by
limitation. Even with respect to
arrears falling within the period
of limitation a tenant-defendant
may successfully demonstrate that
he has no liability, that he can do
while contesting the claim of
arrears rent in the suit. It will
be unfair, therefore, to grant only
on a prima facie determination
arrears before the institution of
the suit to the landlord as the Act
has got no provision to get such
arrears of rent realised by the
landlord under Section 15 of the
Act recovered from the Landlord. A
provision of law which is striken
by arbitrariness is hit by Article
14 of the Constitution of India.
The provision in Section 15 that
the court may order for the deposit
of the arrears of rent prior to the
institution of the suit, therefore,
is ultra vires."
The Act as the preamble shows is an Act to regulate the letting of buildings and the rent of such buildings and to prevent unreasonable eviction of tenants therefrom. The purpose of the Act is to avoid hardship to the tenants due to paucity of accommodation and also save them from exploitation by the landlords charging premium and higher rents (See Sections 3-B). At the same time a duty is cast on the tenant to pay rent to the landlord regularly so long he is entitled to protection from ejectment under the Act except on the grounds specified thereunder. One of the essential elements of lease is rent payable by the tenant to the landlord. Under Section 19 of the Act when a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord. At this stage we may also refer Section 16 of the Act which requires deposit of rent as determined by the Controller during the pendency of appeal or revision. Under this Section the appellate or revisional authority may require the tenant to pay the rent at the rate fixed by the Controller month to month by the fifteenth day of the following month. together with arrears, if any, Section 16 does not talk of arrears arising only during the pendency of the proceedings. In the present case before us we do not find that there is any ambiguity in the language of Section 15. Under this section the Court can require the tenant to pay all the arrears of rent even for the period prior to the institution of the suit subject to the law of limitation. It is the duty of the tenant to pay rent regularly to the landlord when he is enjoying the security of tenure under the rent restrictions laws. Considering the whole aspect of the matter. we are of the view that when the expression "subject to law of Limitation" has been used in Section 15 it applies to the recovery of arrears of rent as on the date of institution of suit. The Full Bench of the Patna High Court in Priyavarta Mehta’s case has taken a correct view of the matter. We find it difficult to appreciate the reasoning advanced by the Division Bench in the Case of Ratan Lal Nai (supra) holding that Section 15 suffers from the Vice of arbitrariness and is ultra vires the powers of the state Legislature.
These appeals are accordingly allowed. the orders of the High Court are set aside and that of the Subordinate Court upheld. There will be no order as to Costs.