Jamuna Sah and another vs Sri Indra Chandra and Another

S. Ali Ahmad, J.—This appeal by the plaintiff''s arises out of a suit filed by them for realization of rent. The suit was dismissed by the trial court. The appeal failed. Thereafter, this second appeal was filed. Shortly stated, facts giving rise to this appeal are that the defendants were inducted on 1.1.1960 as tenants in one of the rooms of a residential house at a monthly rental of Rs. 32/-. The case of the plaintiff''s is that the defendants were provided some additional space with effect from 1.11.1971 and the rent was increased to Rs. 45/- per month with effect from that date. It is said that the defendants continued paying rent at the rate of Rs. 45/- per month till 30th September, 1974, but no rent was paid for the period thereafter. Therefore, this suit was filed on 31.1.1975 on the ground of personal necessity and default in payment of rent. The defendants appeared and contested the suit. According to them no additional space was provided to them on 1.11.1971. They, however, accepted the position that the rent was increased to Rs. 45/-. But according to them, this increase in rent was illegal and invalid. They, however, accepted the position that they paid rent at the rate of Rs. 45/- per month till 30th September, 1974. But according to them, they were paying Rs. 13/- per month extra with effect from 1.11.1971 and if the extra amount so paid was taken into consideration they were not defaulters. The defendants also denied that the plaintiff''s required the suit premises in good faith.

The trial court accepted the case of the defendents that no additional accommodation was provided to them on 1.11.1971. It, however, held that the increase in rent from Rs. 32/- to Rs. 45/- was not valid, but the excess amount paid an that account could not be adjusted towards future rent. It, therefore, held the defendants to be defaulters. With regard to personal necessity, the trial court held in favour of the defendants. Further the trial court thought that although the defendents were defaulters but still the suit for eviction could not be decreed because no notice u/s 106of the Transfer of Property Act was given. It therefore, dismissed the suit.

3, The lower appellate court affirmed the findings recorded by the trial court that no extra accommodation was given to the defendent respondents. It also held that the defendants after 1st of November 1971 till 30th September, 1974 paid rent at the enhanced rate. According to it the enhanced amount paid was sufficient to cover the rent for the period between 1.10.1974 to 31.1.1975. According to it, therefore, there was no default. With regard to personal necessity the lower appellate court agreed with the trial court and came to the conclusion that the plaintiff''s had failed to prove the same. The appeal on these findings was dismissed.

Mr. Naseem Ahmad, Learned Counsel appearing in support of the appeal referred to the decision in the case of Gulab Chand Prasad vs. Budhwanti and another, AIR 1985 Pat 327 : 1985 PLJR 622 wherein it has been held that where excess rent has been voluntarily paid under a mutual agreement for the illegal enhancement of rent in flagrant violation of section 4and such agreement has been carried into effect, the money so paid cannot be recovered back by the tenant nor can any claim or demand resting on such illegal agreement be raised by the landlord against the tenant under the general law, as both the parties would be in pari delicto. Mr. Ahmad says that in this case, the parties mutually agreed on 1st November 1971 to increase the rent to Rs. 45/- per month without any threat or coercion. He says that the increased rent was paid for about three years. According to him, therefore, the increased amount so paid cannot be adjusted towards future rent. Mr. Ahmad, however, drew my attention to a later decision of the Supreme Court in the case of Mohd. Selimuddin v. Misri Lal and another, 1986 PUR 13(SC). In this case it has been held that advance given in contravention of section 3is adjustable against future rent and that the principle of pari delicto will not apply in favour of the ''wrong door'' or to penalize the ''wronged'' by denying to the victim of exploitation access to justice. Mr. Ahmad does not and cannot question the law laid down by the Supreme Court in this case. He, however, places reliance on the observation of the Supreme Court itself that the doctrine is attracted only when none of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain. Learned Counsel says that in this case rent was fixed in the year 1960 at the rate of Rs. 32/- per month. But on account of steep rise in the price index rent had gone up in the year 1971. Therefore, the parties agreed to increase the rent for their mutual advantage. Mr. Nasseem Ahmed therefore, says that the Supreme Court decision has no application to the facts of this case.

Mr. Ojha appearing for the respondents said that the appellants were the landlords and respondents were tenants. This relationship between them was one of unequals. He says that the tenants were acting under compulsion of circumstances and were obliged to succumb to the will of the landlords, who were in dominating position. According to him, if the tenants had not agreed to increase the rent then they could have been evicted from the suit premises. Therefore, Learned Counsel said that the appellants were the oppressors, who want to exploit the situation and the respondents had only two options, either to yield to unlawful demand of the landlords or to face eviction. I do not agree with Mr. Ojha. The facts of the case before the Supreme Court were entirely different. As appears from paragraph no. 2 of the judgment the tenant had advanced a sum of Rs. 2,000/- under an agreement, which, inter alia contained a stipulation that the loan amount was to be adjusted against rent which accrued. If adjustment of future rent was required to be adjusted out of the loan of Rs. 2000/- then obviously there was no question of pari delicto. Further it appears that the tenant in that case had approached the landlord for getting the house on rent and as has been observed by Thakkar, J if he would not have agreed to advance the loan, he would not have been able to secure the tenancy. It was in this background that the learned Judge observed that the landlord was in the position of an oppressor, who wanted to exploit the situation. Here the position was entirely different. The respondents were already in occupation of the suit premises. They could not have been evicted from the premises until a decree for eviction passed on one of the three grounds specified in section 11of the Bihar Buildings (Lease, Rent and Eviction) Control Act. They could very well have refused (sic) the rent and could have continued to remit the same every month in case the same was refused by the landlord. Law was with them. Therefore, it cannot be said that the appellants in this case were in a dominating position and were oppressors. Mr. Ojha while arguing the appeal told me that I have always helped the poors. He says that the respondents are poor persons and as such a decree for eviction should not be passed against them. I confess, I always lean towards the weaker. But what is the position here? Are the appellants strong? They no doubt have a house, but they had to let out room to the respondents at a rental of Rs. 32/- per month. Letting out of a portion of the residential house undisputedly causes inconvenience; but that was done to supplement the monthly income so as to meet the bare necessity of the family. The appellants are not one of those landlords, who earn huge amount every month by rent. They are one of those who let out a portion of their residential house for a small amount of Rs. 32/- with the object of securing bread for their children. The value of Rs. 32/- in the year 1960 underwent huge erosion in the years 1966-67. Therefore, I do not see any thing wrong if the appellants wanted some increase in the rent for partial restoration of the value of Rs. 32/-. The respondents are semi-skilled workers. Their wages in the year 1960 were not the same. Their wages must have been raised on account of rise in the cost of living indEx. Therefore, it cannot but be held that the increase of rent from Rs. 32/- was without any coercion or compulsion and the increases rent was paid for about three years. On the facts of this case, I do not think that the plaintiff-appellants can be termed as oppressors.

Mr. Ojha next urged that the conduct of the appellants has not been fair. He says that the plaintiff''s filed the present suit not only on ground of default but also pleaded personal necessity as one of the grounds for eviction. He says that the plaintiff''s came forward with a story that in the year 1971 some extra space was given to the respondents and that was the reason for enhancement of rent, He says that on both these two counts, the courts below have found against the plaintiff''s. According to him therefore, the appellants are not entitled to a decree for eviction. It is true that the plaintiff''s have been defeated by the courts of fact on the aforesaid two grounds. But on that score the suit cannot be dismissed because I have held that the increase in rent from Rs. 32/- to Rs. 45/- was not under coercion and as such the extra amount of Rs. 13/- per month paid since December, 1971 to October, 1974 cannot be adjusted against future rents as has been held by the Full Bench case reported in 1985 PUR 622 (supra). Admittedly the respondents did not pay any rent for the months of October, November December 1974 to January, 1975. They have, therefore, been rightly held to be defaulters within the meaning of section 11of the Act. The Appellents, therefore, are entitled to a decree for eviction.

While passing a decree for eviction, I cannot close my eyes to the prevailing scarcity of houses in urban areas. I am an optimist and I hope that not in a distant future the housing problem will be eased. But so long that is not done some consideration has to be shown to the tenants who are evicted under a decree passed by the courts. Therefore, although no prayer has been made on behalf of the respondents but I direct that the decree for eviction of the respondents will not be executed till 31.12.1986.

The appeal was argued for more than an hour by Mr. Ojha. After he finished his argument he requested me to adjourn the case so that his junior friend could argue the matter on a subsequent date. This was an unusual prayer. I told him that usually junior counsel say that the matter may be adjourned so that senior counsel may have advantage of assisting the Court. But the position was just reverse here. He said that in this case he has such instruction. I make no comment. But I do not think that on this ground the case could be adjourned and I indicated this to Mr. Ojha. He then insisted that the refusal to adjourn the case to enable his junior friend to argue the matter should be recorded. It is at his insistence that I am recording the aspect of the matter. In the result, the judgment and the decrees passed by the courts below are set aside, suit filed by the plaintiff''s is decreed in full. Parties, however, will hear their own costs throughout.