Giribala Debi And Ors vs First widow And Ors

The appellants have preferred this second appeal against the judgment dated 29.07.1993 and decree dated 11.08.1993 respectively passed by VIth

Additional Judicial Commissioner, Ranchi allowing Title Appeal No. 38 of 1991 and setting aside the judgment and decree dated 20.04.1991 passed by

Additional Munsif, Ranchi in Eviction Title Suit No. 5/55 of 1985/87.

The plaintiff-respondent instituted suit on 29.01.1985 for the eviction of the defendant-appellant from the suit premises described in the schedule of

the plaint which was registered as Eviction Suit No. 59/89.

It was contended before the learned court below on behalf of plaintiff-respondent that he is the owner and land lord of the building premises being

portion of holding no. 22, ward no. 5 within Ranchi Municipality situated at Church Road, Ranchi. The suit premises has been fully described at the

foot of the plaint. The defendant-appellant is a month to month tenant under the plaintiff-respondent according to the English Calender month in

respect of portion of the aforesaid holding no. 22 consisting of one shop room and a back room described as shop premises on a rental of Rs. 15 per

month. The defendant-appellant did not pay rent of the shop premises since 1971. The defendant-appellant further did not validly remit the rent and so

he has made himself liable to be evicted u/s 11 (i) (d) of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982. The plaintiff-respondent had

three sons namely, Gopal Chandra Gupta, Binod Kumar Gupta and Pramod Kumar Gupta from his first wife and four sons namely, Deepak Kumar

Gupta, Rajesh Kumar Gupta, Amit Gupta, Anju Kumar Gupta from his 2nd wife. All the sons of the plaintiff-respondent are major. The plaintiff-

respondent is in bona fide need of premises for setting his sons in business. As his sons namely, Gopal Chandra Gupta, Pramod Kumar Gupta and

Deepak Kumar Gupta are sitting idle and they are desirous of starting their own business for maintaining themselves properly. The plaintiff-respondent

requested the defendant-appellant to vacate the premises in suit but the defendant-appellant evaded to vacate the premises on one pretext or the

other. The defendant-appellant is liable to pay arrears of rent since 1971 but in the suit the plaintiff has claimed arrears of rent for three years from

January, 1982 to January, 1985 amounting to Rs. 576/-. According to the plaintiff, cause of action for the suit arose on various dates since 1971 and

when the defendant-appellant defaulted in payment of rent. The plaintiff-respondent prayed for a decree for eviction of the defendant from the shop

premises fully described in the schedule and for a decree of Rs. 576/- being the arrears of rent from January, 1982 to January, 1985 besides the cost

of the suit.

The defendant-appellant filed written statement stating therein that suit is not maintainable and the plaintiff-respondent has got no cause of action

for the suit. The suit is barred by the principle of waiver, estoppel, acquiescence and the principle of res-judicata. The relationship of the landlord and

tenant between the plaintiff-respondent and the defendant-appellant has been admitted in para 7 of the written statement. It has been submitted that

the plaintiff-respondent is the landlord but the defendant-appellant does not admit that he is the owner of the holding no. 22, Ward No. 5 within Ranchi

Municipality, Ranchi. It has further been submitted that the description of the portion of holding no. 22 has not been properly given and as such it has

caused prejudice to the defendant-appellant. In para 8 of the written statement, it has been admitted that the defendant â€"appellant is tenant in a

portion of holding no. 22 consisting of three rooms including one shop room in the front. Two other rooms are used for keeping the goods such as

clothes. The amount of rent of the suit premises has been disputed by the defendant-appellant. It has been submitted that the rent of the aforesaid

premises was Rs. 16/- per month prior to the fixation of fair rent. The fair rent of the premises was fixed on 19.08.1972 as Rs. 6.30/-retrospectively

from 13.06.1971. It has been denied by the defendant-appellant that he did not pay or validly remit the rent for the suit premises since 1971. It has

been stated that defendant-appellant has paid rent in time. It has been submitted that when the plaintiff-respondent evaded to receive the rent the

defendant-appellant tendered rent to the plaintiff-respondent every month and on his refusal the defendant-appellant remitted the same by postal

money order as required under the law. In para 14 of the written statement it has been submitted that defendant-appellant is entitled to adjust the

excess of the rent which was remitted in the circumstances stated above, which the defendant-appellant adjusted for the period commencing

subsequent to 13.06.1971, the date from which the rent has been made effective. According to the case of the defendant-appellant, there was an

agreement between the plaintiff on the one hand and the defendant on the other though the mode of payment of rent would not be every month but

would be at the convenience of the plaintiff, who was to collect the same some times for 1 ½ years and some times for 11 months. The defendant-

appellant was liable to make payment of rent for the suit premises on demands by the plaintiff-respondent. The defendant-appellant has denied that he

has made himself liable to be evicted from the suit premises on the ground of default in the payment of rent. The defendant-appellant has denied the

claim of the plaintiff that he requires the suit premises bonafidely for his own use and occupation. It has been submitted that the plaintiff-respondent

has got several shop premises lying vacant and if he actually was in need of settling his sons in the business he could have used the vacant shop

premises for the same. The plaintiff-respondent and his sons carry on business not only in Ranchi town but also outside and they have to employ

several persons to look after those business. In para 13 of the written statement, it has been submitted by the defendant-appellant that the plaintiff-

respondent initiated a proceeding u/s 133 of the Cr.P.C and prayed that the suit premises might be demolished but such design of the plaintiff-

respondent was frustrated and the order was passed against him. The present suit has been filed by the plaintiff-respondent against the defendant-

appellant in order to vacate him from the suit premises. It has been further submitted that the plaintiff-respondent has been asserting since 1971 that

the suit premises is in a very dangerous and damaged condition and may collapse on any day on the one hand and on the other in the present suit the

plaintiff-respondent has taken the plea that he wants the suit premises to set up his own business therein. According to the defendant-appellant, the

present suit of the plaintiff-respondent is liable to be dismissed with cost.

On the basis of pleadings of the learned counsel for the parties the trial court formulated eight issues and dismissed the suit vide judgment dated

20.04.1991.

Aggrieved by judgment dated 20.04.1991, the plaintiff-respondent filed Title Appeal i.e T.A. No. 38/49 of 1991 which was decided by judgment

dated 29.07.1993 by the VIth Additional Judicial Commissioner, Ranchi which was allowed and the judgment and decree passed by the Court below

was reversed. The plaintiff-respondent’s suit for eviction of the defendant-appellant from the suit premises was decreed on contest with cost. The

plaintiff-respondent’s suit for the realization of rent for the period from January, 1982 to January, 1985 for the suit premises at the rate of Rs. 6.30

per month was also decreed by the said judgment.

Aggrieved by the said judgment, defendant-appellant has filed this second appeal.

The second appeal was heard on 13.10.1993 and the second appeal was admitted on the following substantial questions of law:

“(i). Whether in view of the issue having been framed that whether the defendant/appellant had defaulted in payment of rent since 1971 and no

issue having been raised regarding the invalidity of remittance through postal Money Orders for any particular period for want of a specific averment

to that effect in the plaint, the learned lower appellate court has gravely erred in making an enquiry in the Money Order Coupons (Ext.H Series) and

postal Money Order receipts (Ext.J) series, in order to adjudge the defendant/respondent/ appellant as a defaulter for more than two months.

(ii). Whether the learned lower appellate court having itself recorded the finding that the rent receipts Ext. A series disclosed realization of monthly

rents for several months together without any protest whatsoever the learned lower appellate court has gravely erred in not holding that by continuous

course of conduct and dealing in the matter of realization of rent gave rise to any inevitable implied contact as held in 1977 S.C. and 1989 S.C. 920.

(iii). Whether the learned lower appellate court has gravely erred in holding that the examination of postal peon was necessary to prove the

endorsement of refusal in Ext. D series on the M.O. Coupons Ext. H. Series.

(iv). Whether the finding of the learned lower appellate court that the defendant/respondent/appellant was a defaulter for more than two months is

vitiated due to non-consideration of the continuous Money Order Coupons (Ext. H) series containing notes of refusal Ext. D Series along with the

postal Money Order receipts Ext. â€"J series for the entire period commencing right from the month of January, 1982 to December, 1985 for which a

complete chart had been submitted before the learned appellate court.â€​

As the law points formulated by this Court are interlinked, learned counsel for the parties addressed to all the law points simultaneously.

Mr. Lalit Kumar Lal, learned counsel for the defendant-appellant with regard to law point formulated by this Court submitted that the plaintiff-

respondent in para 3 of the plaint has stated that the defendant-appellant has neither paid rent nor validly remitted the rent of the shop premises since

1971 but no averment was made in the plaint that the defendant-appellant has neither paid nor validly remitted the rent for any particular period

between 1971 till the institution of suit in January, 1985. He further submitted that the defendant-appellant in para 12 of the written statement

categorically denied the averment made in para 3 of the plaint and stated in specific terms in para 13 of the written statement that he has paid the rent

in time, thereafter when the plaintiff evaded receiving the same the defendant-appellant every month tendered rent to the plaintiff-respondent and on

his refusal he remitted the same by postal money order as required by law. Accordingly, the learned trial court framed Issue No. 4 as to “ Whether

the defendant-appellant has defaulted in payment of rent from 1971†and no issue was framed regarding the invalidity of rent through postal Money

Order for any particular period for want of specific averment. He further submitted that in view of that matter the only scope of enquiry in the suit

was to “ whether the defendant-appellant successfully proved by cogent evidence that he either paid or validly remitted of rent by postal Money

Order since 1971 or not†and in absence of any averment in the plaint and any issue regarding the invalidity of remittance of rent through postal

Money Order for any particular period there was no scope for the appellate court below to make any enquiry into valid remittance of rent for a

particular period i.e between January, 1982 to January, 1985 in order to adjudge the defendant-appellant as a defaulter for more than two months and

in that view of the matter the learned court below erred in making enquiry into Money Order (Ext.H) Series and the postal Money Order receipt (Ext.

J Series) and holding that the defendant is defaulter in making payment of rent for the period covering from January, 1982 to January, 1985. He

further submitted that although the appellate court has wide power u/s 107 C.P.C but it cannot go outside the pleading and decide the suit by making

out a third case and in that view of the matter, as the appellate court below has decreed the suit in present case by making out a third case regarding

default between a particular period which were not pleaded, the judgment and decree passed by the learned court below are bad in law and not

sustainable.

Learned counsel for the defendant- appellant has further submitted that the learned court below further erred in law in not appreciating the

requirement of law while considering the evidences on issue of default and deciding the same against the defendant-appellant. He further submitted

that as per the provision contained in Section (11) (1) (d) of Bihar Building (Lease, Rent and Eviction) Control, Act, 1982, a tenant shall be evicted on

ground of default if he failed either to pay or to validly remit or deposit the rent of the stipulated period in time. To buttress his argument, learned

counsel for the defendant-appellant relied on judgment in the case of “Daluram Agarwala Vs. Shivdayal Bharatiya†reported in 1989 PLJR 22,7

in which the Hon’ble Court has held as under:

“13. In this case, the final court of fact in paragraph 11 of the judgement accepted the evidence of D.W.10 (defendant no. 1) who had

stated that he remitted the rent by postal money order as the appellant refused to accept the rent when tendered. Applying the law as laid

down in Raj Kumar’s case to this case, the sending of rent by money order was not under the general law but under section 13(1).

In view of the fact that the rent for the period 10.08.1974 to 9.9.1974 was refused when tendered, the remittance by money order on

17.9.1974 must be held to be under and in terms of section 13(1). It was, therefore, immaterial whether the postal peon tendered the rent

within 9.10.1974 or thereafter. The finding recorded by the court below that respondent no. 1 has defaulted in paying the rent of one month

only cannot be interfered with.â€​

To buttress his argument, learned counsel for the defendant-appellant further relied on judgment in the case of “Ishwar Dutt Vs. Land

Acquisition Collector & Another†reported in (2005) 7 SCC 190 and submitted that in view of the above, the learned appellate court ought to have

considered only the Money Order Coupon (Ext. H Series) and Money Order receipt (Ext. J Series) to determine as to whether the remittance of rent

was validly made within time or not and not the endorsement of refusal made by the postman (Ext. D Series) to determine as to whether it was validly

tendered or not ? He further submitted that the learned court below erred in holding that the Money Order Coupon (Ext. H Series) and Postal receipt

(Ext. J Series) proved by the defendant in order to establish valid remittance for the entire period from January, 1982 to December, 1985 cannot be

accepted to be genuine as some of Money Order Coupon do not bear the seal of the post office and the Postal receipts do not clearly indicate the date

of issue of the said receipts. The learned court below ought to have taken into consideration and held that as the defendant was neither cross-

examined nor any suggestion was made to him in this regard, he cannot be allowed to suffer for the wrong committed by the post office in putting the

seal on Money Order Coupon and in putting the date in clear and readable handwriting on postal receipt and as such the said documents deserve to be

accepted in order to prove valid remittance of rent for the period from January, 1982 to December, 1985. He further submitted that the learned

appellate court below has held the defendant-appellant as a defaulter only for the period between January, 1982 to January, 1985 and in order to

establish valid remittance of rent in every month between the said period, the defendant has proved all the Money Order Coupon (Ext. H series) and

postal receipt (Ext. J series) covering the said period, the defendant-appellant’s case regarding lump-sum payment of the rent for several months

by the defendant-appellant and acceptance of the same by the plaintiff- respondent are not related to the aforesaid period and, therefore, the

defendant-appellant does not press this appeal regarding involvement of substantial question of law point no. 2 in this appeal. He further submitted that

endorsement of refusal on Money Order Coupon Ext. D/128 to D/219 have been proved by postman, Deonish Tigga, who has been examined as

D.W.-4 and the said witness, D.W.4 has also proved that the endorsement on Money Order Coupon covering the period from January, 1982 to

January, 1985 are in handwriting of postman, Sibu Mundu and Amrit Dugdung. The learned appellate court has held the defendant-appellant is a

defaulter in making payment of rent for the period covering from January, 1982 to January, 1985 on one of the ground that the said postman, Sibu

Munda and Amrit Dungdung who went to plaintiff-respondent and tendered Money Order to him Ext. D have not been examined by the defendant-

appellant. He further submitted that the learned court below failed to appreciate that Money Order Coupon, Postal receipt and the endorsement of

refusal relating to one particular month is part of same transaction and if the Money Order Coupon and Postal receipt of the said month is proved, the

endorsement of refusal of same month cannot be rejected on the ground that the postman, who tendered the Money Order and made the endorsement

of refusal, has not been examined. He further submitted that as one of the postman-D.W.4 has proved the writing of the other two postman, who are

working in the same post office, his evidence is relevant under section 47 of the Evidence Act, the learned appellate court below ought to have held

that the defendant-appellant successfully proved the endorsement of refusal on Money Order for the period from January, 1982 to December, 1985.

He submitted that law point no. 3 is required to be answered in favour of defendant-appellant. Learned counsel for the defendant-appellant further

submitted that the learned court below has not considered the continuous Money Order Coupon (Ext. H series), Postal receipt (Ex. J series) and

endorsement of refusal (Ext. D series) for entire period commencing right from January 1982 to December, 1985 in their right perspective for which a

complete chart has been submitted before the learned appellate court below.

He further submitted that the learned court below has not categorically held that remittance of which two or more months between January, 1982

to December, 1985 have not been proved by the aforesaid documents and therefore, the finding of the learned appellate court below on default in

payment of rent for the entire period covering from January, 1982 to 1985 is perverse on the face of documents, Ext. H series, Ext. J series and Ext.

D series and as such vitiated in law. In view of above the substantial law point no. 4 deserves to be answered in favour of defendant-appellant and the

second appeal needs to be answered in favour of defendant-appellant except the law point no. 2 which has not been pressed by the learned counsel

for the defendant-appellant.

On the contrary, Mr. Manjal Prasad, learned senior counsel for the plaintiff-respondent submitted that initially suit was filed on two grounds i.e. 1.

On default in payment of rent and 2. On the ground of personal necessity. He further submitted that the suit was dismissed on both the grounds. At

the appellate stage the plaintiff-respondent abandoned the ground of bonafide personal necessity. The Title Appeal was decided only on the ground of

default of payment of rent. He further submitted that Bihar Building (Lease, Rent and Eviction) Control, Act, 1982 is a self contend Code. The rent

Act sets up a complete machinery for the landlord and tenant. Section 11 of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982 provides

that:

“11. Notwithstanding anything contained in any contract or law to the contrary but subject to the provision of Industrial Dispute Act, 1947 (Act

XIV of 1947) and to those of Section 18, where a tenant is in possession of any building he shall not be liable to eviction there from except in

execution of a decree passed by the one or more of the following grounds:-………………

Section 11(i) (d) of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982 provides that:

“ Where the amount of two months’ rent, lawfully payable by the tenant and due from him is in arrears by not having been paid

within the time fixed by the contract, or in absence of such contract, by the last day of the month next following that for which the rent is

payable or which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16.â€​

By referring the aforesaid provision, he submitted that there was no written contract for payment of rent as such the payment of rent was payable

by the last day of the month next following. He further submitted that from perusal of money order coupons-Exhibit H series coupled with Postal

Money Order receipts Exhibit-J series it can be rightly held that the tenant-appellant has defaulted in making payment of rent for the period covering

from January, 1982 to January, 1985. The claim of the plaintiff-respondent was that the tenant-appellant has defaulted in payment of rent since 1971.

The suit was filed on 29.01.1985. He further submitted that provision of section 11 (1)(d) is mandatory in nature. The statute mandates that rent

should be paid within the time fixed by the contract and in absence thereof by the last date of the month next following. He further submitted that the

obligation of the part of the tenant to pay rent in the manner laid down under the Act being the statutory one, he must comply therewith strictly. The

statute, therefore, in other words, prescribes the period within which the rent must be rendered to the land lord by a tenant. He further submitted that

when the Statute lays down the period during which the rent is required to be paid or deposited, the same is required to be complied with. Further, if a

thing is required to be done by a private person within a specified time, the same would ordinarily be mandatory but when the public functionary is

required to perform a public function within a time framed, the same will be held to be directory unless the consequence thereof are specified.

Learned counsel for the plaintiff-respondent has further submitted that there is no scope for any implied contract in the Act. The lower appellate

court after scrutinizing the entire evidence, i.e. Exhibit H series and Exhibit J series in detail came to a specific finding that tenant-appellant has

defaulted in payment of rent for the period covering from January, 1982 to January, 1985.

Learned counsel for the plaintiff-respondent has drawn attention to Section 19 of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982

which provides that deposit of rent by tenant on refusal of landlord to accept it or in case of doubt or dispute as to the person entitled to receive it. The

sub-section 1 of Section 19 provides:-

“ 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.â€​

Learned senior counsel for the plaintiff-respondent has submitted that in the written statement in para 13, the defendant-appellant has specifically

stated that on refusal of rent by the landlord the tenant-appellant remitted the same by postal monthly order. He further submitted that the plaintiff-

respondent has specifically averred in the plaint that the tenant-appellant has defaulted in payment of rent since 1971 and even on refusal of the same

he ought to have remitted the rent of each month by the last day of month next following, but from the perusal of money order coupons and receipts

Exhibit-H series and J series it is crystal clear that the rent of each month has not been paid lawfully in the next following month. Sometime, it has

been paid for 10 months at a time. He further submitted that the lower appellate court being a final court of fact has elaborately discussed the entire

evidence on record and has rightly came to a finding that the defendant-appellant has defaulted in making payment of rent for the period covering

from January, 1982 to January, 1985.

To buttress his argument, learned senior counsel for the plaintiff-respondent relied on judgment in the case of “ Balwant Singh & Others†Vs.

Anand Kumar Sharma and Othersâ€​ reported in AIR 2003 SC 1637 in which the Hon’ble Supreme Court has held as under;

“4. The provisions of the said Act would clearly show that unlike Rent Control Statutes of other States, the expression ‘wilful

default’ or ‘habitual default’ has not been used therein. The words are ‘is in arrears.’ In the event, rent for two months is

not paid a cause of action arises. The statute mandates that the rent should be paid within the time fixed by the contract and in absence

thereof by the last date of month next following. The obligation on the part of the tenant to pay rent in the manner laid down under the Act,

being a statutory one, he must comply therewith strictly. The statute, therefore, in other words, prescribes the period within which the rent

must be rendered to the landlord by a tenant. When the statute lays down the period during which the rent is required to be paid or

deposited, the same is required to be complied with.

Yet there is another aspect of the matter which cannot be lost sight of. It is a well settled principle that if a thing is required to be by a

private person within a specified time, the same would ordinarily be mandatory but when a public function is required to perform a public

function within a time frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland Statutory

Construction, 3rd Edition. Vol. 3 at P. 107, it is pointed out that a statutory direction to private individuals should generally be considered

as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out

that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by

an expression in the statute itself of the result that shall follow non-compliance with the provision. At page 111 it is stated as follows:

“ As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been

considered as a factory tending towards a directory construction. But this is only an element to be considered, and is by no means

conclusive.â€​

This decision in our opinion does not lay down the correct law and must be overruled.â€​

Lastly by way of relying this judgment has submitted that none of substantial question of law formulated at the time of admission are worthy of

least credence as the defendant-appellant has failed to comply provision of Section 11(1)( (d)) and Section 19 (1) of the Act and in view of the

aforesaid facts, the second appeal is fit to be dismissed with cost.

With Regard to Law Point framed.

It transpired that at the appellate stage, the plaintiff-respondent has abandoned the ground of bonafide personal necessity and the title appeal was

decided on the ground of default of payment of rent. The learned appellate court below has considered Exhibit A series which show that the rent for

the suit premises was paid for the period covering from February, 1967 to August, 1967 for seven months. Exhibit A/2 shows that rent for suit

premises was paid by the defendant-appellant to plaintiff-respondent for the period September 1964 to October, 1965 i.e more than a year. The

appellate court came into finding that this activity clearly shows that there is no express contract between the parties regarding the mode of payment

of rent. The contract referred to section 11 (i) (d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, is an express contract between

the parties and cannot be referred to employee contract which can be inferred from any code of contract between parties. In absence of any such

formal part, later part of Section 11 (i) (d) of the Act is attracted and amount of rent must be paid by the last day of month next following for which

the rent is payable. It has been admitted by the defendant-appellant that there was no express contract between the plaintiff-respondent and

defendant-appellant to make payment of rent in lump sum for several months. Thus, only important aspect in this second appeal as to whether

defendant-appellant is defaulter in making payment of the rent to the plaintiff-respondent for the period covering from January, 1982 to January, 1985

or not? The plaintiff-respondent has left the claim of a decree of realization of arrears of rent from 1971 to December 1981 as the same was time

barred. The plaintiff-respondent has claimed arrears of January, 1982 to January, 1985. The plea of defendant-appellant was that he has sent rent for

the said premises for the aforesaid period through money order which was refused by the plaintiff-respondent. Exhibit H. Series money order

Coupons, Exhibit-J series are postal receipts and Ext. D series endorsement of refusal of money order coupons. While considering this money order

coupons the appellate court has come to the conclusion that in absence of seal of post office on the money orders the same cannot be accepted. With

regard to postal receipt-Exhibit-J series, the appellate court came to the finding that these postal receipts do not clearly indicate the date of issue of

receipts. On perusal of the said series it is not clear as to for what period rent was sent to the plaintiff-respondent by the defendant-appellant by the

aforesaid postal receipts. Ext. D series is the endorsement of refusal made by the Post Man. Doonish Tigga has proved some of endorsement on the

money order coupons in the handwriting of Siboo Munda while others in the handwriting of Amrit Dungdung. D.W.6 has admitted in course of

evidence as contained in page 12 that he has not filed money order receipts for some one. He has admitted that he has no money order receipt for

month of February, March, April, May and June, 1984 and corresponding money order coupons Exhibit H/132, 161, 162, 162, 131 do not bear seal of

the post office. He has further admitted in his evidence that he has got some postal receipts of remitting money order for the month of March, April,

July, August, September, October, November and December 1993 and some money order receipts for aforesaid period have not produced by him. He

has admitted that he sent rent by money order for the month of May and June, 1984 in the month of July, 1984. This admission of defendant-appellant

coupled with state of affairs of the money order coupons and postal receipts show that defendant-appellant has defaulted in making payment of rent

for the period covering January, 1982 to January, 1985. The default in making payment of rent was found to wilful act on the part of the defendant-

appellant and it has been held that the defendant-appellant defaulted in making payment for more than two months. Accordingly the appellate court

below rightly came into finding that the default in making payment of rent by the defendant-appellant for more than two months must liable to vacate

the suit premises.

In view of well-settled provisions of law that if a thing is required to be done by a private person within a specified time, the same would ordinarily

be mandatory but when a public functionary is required to perform a public function within a time frame. The statute mandates that the rent should be

paid within the time fixed by the contract and in absence thereof the last date of month next following. This obligation on part of the tenant to pay rent

in the manner as prescribed under the Act which is statutory in nature. The tenant needs to comply strictly in that terms. It is clear that the statute

prescribed the period within which time rent must be rendered to the landlord. When there is period prescribed by the statute, same is required to be

read in strict terms.

In view of the these discussions, as the defendant-appellant has failed to comply the provision of Section 11 (i)(d) of the Bihar Building (Lease,

Rent and Eviction) Control Act, 1982 the law point formulated at the time of admission are answered accordingly. As the law points have been

answered and this Court has come to the finding that the appellate court has discussed the evidences and law in its right perspective there is no

perversity in the impugned judgment dated 29.07.1993 and accordingly this second appeal stands dismissed. Pending I.A, if any, stands disposed of.

The office is directed to send back lower court record to the court below forthwith alongwith a copy of this judgment.