PETITIONER:
RADHA KISHAN SAO.
Vs.
RESPONDENT:
GOPAL MODI & ORS.
DATE OF JUDGMENT14/02/1977
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1217 1977 SCR (2) 984
1977 SCC (2) 656
ACT
Bihar Buildings (Lease, Rent and Eviction) Control Act,
1947, ss. 11 and 11A --Scope of--Rent of premises fixed by
Rent Controller--Subsequent contract letting out
furniture--Failure to pay rent of furniture--If a ground for
eviction.
HEADNOTE
Section 11 of the Bihar Buildings (Lease, Rent and
Eviction) Control Act. 1947 provides that a tenant shall not
be liable to eviction except in execution of a decree passed
by the Court on one or more of the grounds specified there-
in. Under s. 11A, if in a suit for recovery of possession of
any building the tenant contests the suit, the Court may
make an order for deposit of rent and arrears, if any, and
on failure to deposit the arrears within fifteen days of the
date of the order, the Court shall order the defence against
ejectment to be struck out.
The plaintiff (respondent) let out two rooms of his
premises to the defendant (appellant) at a rent fixed by the
Rent Controller under s. 5 of the Act. Sometime later, the
plaintiff let out some furniture to the defendant at a
mutually agreed rent. The plaintiff’s suit for eviction of
the defendant on the ground of non-payment of rent for three
months was dismissed by the trial Court holding that failure
to pay the rent of furniture along with the rent of the
premises did not amount to a default under s. 11(1)(d) of
the Act. On appeal, the Subordinate Judge held that non-
payment of rent of furniture along with the rent of the
premises was a default within the meaning of s. 11(1)(d).
The High Court upheld the decision of the Subordinate Judge.
On the question of deposit of rent under s. 11A, the Subor-
dinate Judge held that the defendant had filed documents to
show subsequent deposit in a regular way. On the other
hand, the High Court came to the conclusion that the defend-
ant failed to produce any material to show as to what de-
terred him from "depositing the money himself on the passing
of the challan and what caused the handing over of the money
to the Nazir." On this ground, it allowed the plaintiff’s
suit.
Allowing the appeal,
HELD: The High Court and the Subordinate Judge committed
an error of law in accepting the ground of default under s.
11(1)(d) on a wrong appreciation of the legal position on
the facts found by the first appellate Court. There was,
therefore, no basis for granting a decree for eviction under
s. 11(1)(d) of the Act. [990C]
1. (a) It is the default in the payment of rent fixed by
the Rent Controller which will furnish a ground for eviction
under s. 11(1)(d). Section 4 of the Act provides that
notwithstanding anything contained in any agreement or law
to the contrary, it shall not be lawful for any landlord to
increase, or claim any increase in, the rent which is pay-
able for the time being, in respect of any building except
in accordance with the provisions of the Act. [989E-F]
In the instant case, the Rent Controller having fixed the
rent of the premises, the plaintiff could not alter that
rent without an order of the Rent Controller. Default of the
payment of furniture rent agreed to by the defendant subse-
quent to the lease of the premises could not be brought
within the mischief of s. 11 (1) (d) to entitle the landlord
to a decree for eviction. The furniture rent remains di-
vorced from the rent of the building under the original
demise. [989D &P]
(b) Any alteration of the fair rent fixed by the Rent
Controller will have to receive the imprimatur of the Rent
Controller under s. 7. There is no legal impediment if the
parties approach the Controller and by consent obtain an
order from the Controller fixing the revised rent admissible
under the Act. No
985
enhancement of fair rent is legally permissible except in
accordance with the provisions of the Act. Default of
payment of any rent in excess of the fair rent fixed, if
without recourse to the Procedure under the Act, will not
entail a ground for eviction under s. 11(1)(d) of the Act.
[990A--B]
The penalty of striking out the defence for non-compli-
ance of an order under s.11A is district from the grounds of
eviction permitted under s. 11. [988H]
2. The contention of the defendant that an order under
s.11A could be passed only by the trial Court is without
force because an appeal is a continuation of the suit. The
advantage given to the landlord under s. 11A for the purpose
of realisation of the arrears of rent pendente lite can be
secured by him at any stage of the litigation, whether in
the trial Court or in appeal. [988G]
3. Where the first appellate court came to a positive
finding of fact in favour of the defendant, the High, Court
was wrong in adopting a different course to reach a contrary
conclusion for the first time on a vital fact. The matter
would have been different if the High Court had called for
additional evidence under 0.41, r. 28, C.P.C. But the
course adopted by the High Court has resulted in great
prejudice to the defendant. [987E-F]
In the instant case the High Court itself had accepted
that the amount of rent was handed over to the Nazir but the
objection was that the defendant, instead of handing over
the amount to the Nazir, should have himself deposited it.
In the absence of a proper enquiry into the matter of delay
of deposit by the Nazir the High Court was not right in
second appeal to penalise the defendant by striking out his
defence against ejectment. [988B]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 721 of 1976.
(Appeal by Special Leave from the Judgment and Order
dated the 27th April 1976 of the Patna High Court in Appeal
from Appellate Decree No. 6 of 1974).
Harbans Singh Marwah, for the appellant.
K.K. Sinha, S.K. Sinha and Devi Prasad, for respondents.
The Judgment of the Court was delivered by
GOSWAMI, J.--This appeal by special leave is directed
against the judgment of the Patna High Court in a second
appeal arising out of suit for eviction of the tenant.
Two rooms being shop Nos. 17 and 18 of Modi Building
in Commissioner’s Compound, Ranchi, were let out by the
plaintiff (respondents herein) on a monthly rental to the.
defendant (appellant herein). We will describe them as the
plaintiff and the defendant. It is common ground that fair
rent of Rs. 50/- per month (including water tax) was deter-
mined for the two, shops by an order of the Rent Control-
ler under section 5 of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1947 (briefly the Act) on May 30,
1953. Later on, certain furniture, such as’ five almirahs
and six racks, were also let out by the plaintiff to the
defendant on a monthly rental of Rs. 28/-. A suit was
instituted by the plaintiff on April 18, 1966, praying for
eviction of the defendant on the ground of non-payment of
rent of the said two shops and furniture for three months
from July to September 1965.
986
The Munsiff, Ranehi, dismissed the suit holding that
failure to remit rent for furniture along with rent for the
two shops did not amount to default under section 11(1)(d)
of the Act. The Munsiff also held that there was no valid
service of notice under section 106 of the Transfer of
Property Act.
On appeal the Second Additional Subordinate Judge,
Ranchi, reversed the judgment of the trial court and de-
creed the suit for eviction upholding the ground of default.
The Subordinate Judge held that the plaintiff was entitled
to realise rent at the rate of Rs. 78/- per month which
included the rent for furniture and hence remittance by the
defendant of Rs. 50/- per month was not a valid dis-
charge of his rental liability and he was a faulter
within the meaning of section 11(1)(d) if the Act.
The Subordinate Judge also held that there was no proper
service of the notice of eviction. We are not concerned in
this appeal with the question of service of notice.
Since the Subordinate Judge was the final court of
facts, it will be appropriate to note the following findings
material for our purpose:
(1) "I, therefore, decide that the plain-
tiff was entitled to realise Rs. 50/- as
monthly rent.
(2) In view of the evidence of the parties
and Ext. 2 I hold that plaintiff had supplied
the furniture detailed in Schedule B of the
plaint and rent fixed for the same had been
Rs. 28/- per month.
(3) The subsequent supply of furniture
and that of sufficient value must be construed
as a quite independent contract unconnected
with the original tenancy .... ".
The defendant’s second appeal to the High Court failed.
’The High Court agreed with the first appellate court that
the rent for furniture was also lawfully payable under
section 11(1)(d) and hence the ground of default of payment
of Rs. 78/- per month from July to September 1965 was avail-
able to the plaintiff.
The High Court also gave an additional reason for sus-
taining the eviction decree. There was an order by the
Subordinate Judge, in the course of the appeal, under sec-
tion 11A of the Act directing the defendant to deposit the
rent of the premises at the rate of Rs. 50/per month in
terms of that Section. It appears there was some controver-
sy before the Subordinate Judge as to whether this order
under section 11A was complied with or not by the defendant.
The Subordinate Judge, however, repelled the contention of
the plaintiff to strike out the defence of the defendant on
the ground of non-compliance with the court’s order under
section 11A in the following terms:
"It was argued on behalf of the appel-
lant (plaintiff) that the defendant had not
deposited subsequent rent in spite of direc-
tion by the court and so this court had to
987
strike out the defence against ejectment. The
defendant had filed the documents to show
subsequent deposit in regular way. So this
plea of plaintiff fails".
A second attempt, and this time successfully, was made in
the High Court by the plaintiff to. press the ground under
section 11A of the Act to strike out the defendant’s de-
fence against ejectment.
It is clear from the judgment of the High Court that
there was no material, without further enquiry, to reach a
conclusion contrary to that of the first appellate court
with regard to non-compliance with section 11A of the Act.
The High Court, therefore, allowed parties to produce some
documentary evidence and relying upon the same held as
follows:--
"Learned Advocate appearing for the
appellant (defendant) contended that inasmuch
as the delay in depositing the money in the
Bank occasioned on account of the default of
the officers of the court, no penalty should
be imposed on the appellant (defendant).
Learned Advocate, however, failed to produce
any material to. show as to what detracted
the appellant (defendant) to deposit the money
himself on 15-3-1974 on the passing of the.
challan and what caused the 7handing over the
money to. the Nazir".
In a matter where the first appellate court came to a posi-
tive finding in favour of the defendant with regard to the
non-compliance with its order under section 11A, we do not
consider that the High Court was right in adopting the
course. it did in a rather unsatisfactory manner to reach
a contrary conclusion, for the first time, on a vital and
clinching fact about handing over the amount of rent to the
Nazir in absence of the latter’s oral testimony. There is
no denial even in the written information furnished by the
Nazir that the rent was handed over to him on March 14,
1974. The matter would have been different if the High
Court, in the interest of justice, had called for addition-
al evidence under order 41, rule 28, Civil Procedure Code,
so that the parties would have proper and adequate opportu-
nity to establish their respective versions including the
procedure of the particular court regarding acceptance of
deposit in a given situation. It is true that the High Court
could itself permit documentary evidence to be produced
before it under order 41, rule 27, but, as we have seen,
this course has resulted in great prejudice to the defend-
ant. Even the counsel were unable to inform us about the
procedure of depositing the money in compliance with the
order under section 11A in the court of the Subordinate
Judge even after entertaining of -additional evidence
before the High Court.
In view of the fact that the first appellate court held the
deposit of the amount sufficient’ under the law being within
the statutory period Laid down under section 11A, we are
most reluctant to prefer the contrary conclusion of the
High Court on the materials produced before it. This is
particularly so since the High Court itself appears to have
accepted the position that the amount was handed over to the
Nazir on March 14, 1974, in’ the extract from the judgment
quoted
15--206SCI/77
988
above. The only objection of the. High Court was that the
defendant instead of handing over the amount to. the Nazir
should have "himself’ deposited the amount on March 15,
1974. Since the money was deposited by the Nazir on May
28, 1974, in absence of a proper enquiry into the matter of
delay of deposit at the hands of the Nazir and the reasons
for it, the High Court was not right, in second appeal, to
penalise the defendant by striking out his defence against
ejectment. The second ground relied upon by the High Court
for decreeing the plaintiffs eviction suit, therefore,
fails.
Further section 11 describes the circumstances under which
eviction of tenants can take place. Under that section a
tenant shall not be liable to eviction except in execution
of a decree passed by the court on one or more of the
grounds specified therein. Section 11A which was inserted
by amendment by Bihar Act 16 of 1955 reads as follows:-
"Deposit of rent by tenants in suits for
ejectment.--If in a suit for recovery of
possession of any building the tenant contests
the suit, as regards claim for ejectment, the
landlord may make an application at any stage
of the suit for order on the ten, ant to
deposit month by month rent at a rate at which
it was last paid and also the arrears of rent,
if any; and the Court, after giving an oppor-
tunity to the parties to be heard, may make an
order for deposit of rent at such rate as may
he determined month by month and the arrears
of rent, if any and on failure of the tenant
to deposit the arrears of rent within fifteen
days of the date of the 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 out and the tenant to be placed in the
same position as if he had not defended the
claim to ejectment. The landlord may also
apply for permission to withdraw the deposited
rent without prejudice to his right to claim
decree for ejectment and the court may permit
him to do so. The Court may further order
recovery of cost of suit and such other com-
pensation as may be determined by it from the
tenant".
It is submitted by the defendant that an order under
section 11A can be passed only by the trial court. We are,
however, unable to accept this position, since appeal is a
continuation of the suit. The advantage which is given to
the landlord under section 11A for the purpose of realisa-
tion of the arrears of rent pendente lite which is in the
nature of lawful enforcement of the conditions of tenancy,
can be secured by the landlord at any stage of the litiga-
tion, whether in the trial court or in appeals. The penalty
of striking out defence for non-compliance of an order under
section 11A has to he kept distinct from the grounds of
eviction permitted under section 11 of the Act.
The only ground that remains for consideration is wheth-
er the defendant defaulted m the payment of rent from July
to September, 1965. If it were merely a finding of fact by
the first appellate court
989
there would be nothing wrong for the High Court to dismiss
the second appeal. The question, however, assumes a legal
complexion even on the findings of facts of the first appel-
late court.
The first appellate court found that rent for the
premises was Rs. 50/. per month and there was no default of
that rent at any time. The first appellate court found
that the rent of Rs. 28/- per month for the furniture was a
subject matter of "subsequent supply" and "a quite independ-
ent contract ’unconnected with the original tenancy". It,
however, found that since the same was not paid by the
defendant during the months in question along with the
rental of Rs. 50J- per month for the premises, the defendant
was a defaulter within the meaning of section 11 (1)(d) of
the Act. The High Court has accepted this legal conclusion
of the Subordinate Judge.
We are, however, unable to accept the above legal position
of the defendant’s default in this case on the finding of
facts set out above. Rent has been always Rs. 50/- per
month for the premises after the same was fixed by the Rent
Controller under section 5 of the Act as far back as 1953.
The parties having been already before the Rent Controller
for fixation of fair rent of the premises, the plaintiff
could not alter that fixed rent without order of the Rent
Controller. Section 4 of the Act provides that "notwith-
standing anything contained in any agreement or law to the
contrary, it shall not be lawful for any landlord to. in-
crease, or claim ’any increase in, the rent which is payable
for the time being, ’in respect of any building except in
accordance with the provisions of this Act". The two shops,
which are building for the purpose of section 2(an) of the
Act, were rented out as an unfurnished building. This
amount of rent of Rs.50/- was determined by the Rent Con-
troller as fair rent under section 5 of the Act. It is the
default in the payment of this rent fixed by the Rent Con-
troller which will furnish a ground for eviction under
section 11(1)(d) of the Act. Default of the furniture rent
agreed by the defendant subsequent to the lease cannot be
brought within the mis-chief of section 11(1)(d) to entitle
the landlord to a decree for eviction. On the findings of
the first appellate court the furniture rent remains di-
vorced from the rent of the building under the original
demise. Even if the furniture be returned, the lease for
the building in this case will not be affected.
The plaintiff submits that since the definition of build-
ing includes furniture the rent becomes consolidated ’and
the defendant was liable to pay the total amount of Rs. 78/-
and any default for two months to pay the consolidated rent
will attract sections 11(1)(d) of the Act. The plaintiff
further submits that since the furniture rent is the rent
agreed between the parties there was no occasion nor legal
requirement to approach the Rent Controller for redetermina-
tion of the rent under section 7 of the Act.
We are unable to accept the above submission. Any
alteration of the lair rent fixed by the Rent Controller
either by improvement of the building or by addition of
furniture to the building will have receive the imprimatur
of the Rent Controller. Section 7, inter alia,
990
provides that if, at. any time after the fair rent of a
building has been determined, it appears to the Rent Con-
troller that subsequent to such determination some addition
or improvement has been made to the building at the land-
lord’s expense, the Controller may redetermine the .fair
rent of the building. There is no-legal impediment if the
parties, landlord and tenant, approach the Controller and by
consent obtain an order from the Controller fixing the
revised rent which is admissible under the Act. Any other
course is bound to lead to mal-practices and unholy devices
deterimental to the interests of the tenants. No enhance-
ment of fair rent fixed by the Rent Controller is legally
permissible except in accordance with the provisions of the
Act. Default of payment of any rent, in excess of the fair
rent fixed, if without recourse to the procedure under the
Act, will not entail a ground for eviction under section
11(1)(d) of the Art. The High Court, and earlier the Addi-
tional Subordinate Judge, therefore, committed an error of
law in accepting the ground of default under section 11 (1)
(d) on a wrong appreciation of the legal position on the
facts found by the first appellate court. There was, there-
fore, no basis for granting decree for eviction under sec-
tion 11(1)(d) of the Act.
In the result the judgment of the High Court is set
aside and the judgment and the decree of the Munsiff dis-
missing the suit stand restored. The appeal is allowed
with costs.
P.B.R. Appeal
allowed.
991