Bibi Jumani Churiwali vs Most. Kamla Devi

Ashwini Kumar Sinha, J.—This is defendant''s application against the order dated 22.3.1982 directing the petitioner to deposit rent in Court at the rate of Rs. 145/- per month from the 28th February, 1981, in one lump sum within fifteen days of the order and also directing the petitioner to go on depositing current rent by the 15th of the following month, failing which the defence of the petitioner was to be struck off. The plaintiff-opposite party filed a suit (T.S. No. 43 of 1981) for recovery of arrears of rent and eviction of the petitioner from the suit premises. According to the plaintiff-opposite party, the petitioner had defaulted in the payment of rent at the rate of Rs. 145/- per month since January 1979 till the filing of the suit.

The relationship of the landlord and tenant is not denied by the petitioner. Petitioner''s case is that he is not a defaulter and has been paying rent regularly. According to the Petitioner, she was inducted as a tenant on payment of rent of Rs. 20/- per month which she paid for some time. Thereafter, the rental was enhanced to Rs. 30/- which also the petitioner paid for some time. Then, according to the petitioner, in the month of June, 1979, the plaintiff-opposite party wanted to enhance the rental to Rs. 45/- per month to which also, according to the petitioner, the petitioner agreed, subject to the condition that the rent receipt would be issued for the payment. According to the petitioner, the plaintiff-opposite party refused to grant receipt for Rs. 45/- and, accordingly, the petitioner starred tendering the rent at Rs. 45/- per month from June, 1979, onwards by money-order which was refused by the plaintiff-opposite party.

The plaintiff-opposite party filed an application u/s 13 of the Bihar Building (Lease, Rent and Eviction) Control Act in the Court below praying for a direction to the petitioner to deposit the areas of rent at the rate of Rs. 145/- per month. The petitioner filed a rejoinder thereto and stated the facts as mentioned above. According to the petitioner, in 1980, the petitioner filed a case before the Rent Controller for fixation of fair rent of the suit premises which was still pending for disposal.

As stated above, the relationship of landlord and tenant is accepted by the petitioner. What is in dispute is the last paid rent. According to the plaintiff-opposite party it should be at the rate of Rs. 145/- per month, whereas, according to the petitioner''s own case, she had started remitting rental of Rs. 45/- per month. Plaintiff''s claim is that the rent was fixed at Rs. 145/- per month, though the plaintiff-opposite party does not say as to what is the last rent received by her. In any case, as the last paid rent is in dispute, the order of the Court below directing the petitioner to deposit the monthly rental at the rate of Rs. 145/- is wholly illegal. As the rate of rentwas in dispute, the Court below should have come to a finding as to what was the last paid rent after proper enquiry. Reference may be made to the Full Bench of N.M. Verma Vs. Upendra Narain Singh, . The impugned order is obviously against what is the well settled position in law by now. In that view of the matter, I hold that the Court below has acted with material irregularity in exercise of its jurisdiction. The Court below is hereby directed to hold a proper enquiry in regard to the last paid rent and only after proper enquiry and after hearing the parties will pass appropriate order in accordance with law. However, the petitioner in the meantime will obey the order of this Court as already passed on the 8th April, 1982. It is stated by the learned counsel for the petitioner that this order dated the 8th April 1982, has already been complied with and is being complied with every month. Though it will bear repetition, it is made clear that this payment, in pursuance of the order dated the 8th April, 1982, will not be to the prejudice to the rights of the parties in final determination of the rent in the proceeding. It is further made clear that, if the Court below, after proper enquiry, now holds that the last paid rent was less than Rs. 45/- per month or more than Rs. 45/- per month in that event, the deposit being made at present in pursuance of the order dated the 8th April, 1982, will be subject to adjustment. In the result, the application is allowed, the impugned order dated the 22nd March, 1982 is set aside and the matter is sent back to the court below for passing a fresh order in accordance with law after proper enquiry.