Krishan Kumar Ghosh and Others vs Smt. Girija Devi and Another

Mungeshwar Sahoo, J.—This Second Appeal has been filed by the original plaintiff against the judgment and decree of the lower appellate court dated 01.12.2001 passed by the learned 6th Additional District Judge, Patna in Title Appeal No. 121 of 1996 whereby the learned lower appellate court set aside the judgment and decree of eviction passed by the learned trial court dated 16.07.1996 in Title Eviction Suit No. 14 of 1994 by Munsif 1st Court, Patna. The original plaintiff-appellant Smt. Savitri Devi, who died during the pendency of the Second Appeal, had filed the eviction suit under the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as ''the B.B.C. Act'') on the ground of default and subletting. According to the plaintiff, the defendant No. 1 was inducted as tenant through an agreement dated 01.03.1992 on monthly rent of Rs. 500.00 and it was agreed between the parties that the rent of each month shall be paid within first week of each month for which the rent is payable. The defendant No. 1 paid the rent up to December, 1993 and thereafter defaulted in payment of rent from the month of January 1994 to March 1994. The defendant No. 1 also sublet the suit premises to the defendant No. 2, therefore, the suit was filed.

The defendant No. 1-appellant-respondent filed contesting written statement stating inter alia that the defendant No. 1 is not defaulter. When the original plaintiff demanded to increase the rent of Rs. 500.00 to Rs. 800.00, the defendant No. 1 did not agree, therefore, when the defendant No. 1 tendered the rent hand to hand for the month of January, 1994 the plaintiff refused to accept it. Accordingly, the defendant No. 1 was sending the money order regularly, as such she is not a defaulter. According to the defendant No. 1, the rent for the month of January, 1994 and February, 1994 was sent by money order on 12.03.1994 and likewise the rent for the month of March 1994 and for the month of April 1994 was sent by money order on 24.03.1994. The further defence is that the defendant No. 2 is not a sub tenant rather is a partner of the defendant No. 1 because the defendant Nos. 1 and 2 were running partnership business in the suit premises. The defendant No. 1 admitted that it was agreed between the parties that the rent for each month will be payable in the first week of that very month for which the rent was payable. The relationship of landlord and tenant and the rate of rent are also admitted. The defendant No. 2 did not file the written statement.

The trial court considering the materials and evidences decreed the plaintiffs suit recording a finding that the defendant No. 1 is a defaulter within the meaning of Section 11(1)(d) of the B.B.C. Act.

On appeal the lower appellate court held that the defendant No. 1 has not paid the rent for the month of January, February and March, 1994 but since she had tendered the amount for the said period hand to hand and on refusal thereof she had remitted the rent through the money order, the defendant No. 1 is not a defaulter. Therefore, the learned appellate court decreed the suit for recovery of rent but set aside the judgment and decree of the trial court whereby the defendant Nos. 1 and 2 were directed to be evicted from the suit premises.

On 31.01.2005 at the time of admission, the following substantial questions of law were formulated:

(i) Whether or not the learned court of appeal below was justified in reversing the judgment of the trial court?

(ii) Whether lower appellate court acted illegally and quite contrary to law in giving undue legal weight to the postal receipt which was sent up by the defendant after lapse of more than two months delay in view of the contract between the parties?

The learned senior counsel Mr. S.S. Dvivedi appearing on behalf of the appellants submitted that the relationship of landlord and tenant between the original plaintiff and defendant No. 1 is admitted. The defendant No. 1 also admitted that there was agreement between the parties that rent at the rate of Rs. 500.00 was payable within the first week of the month for which the rent was payable. According to the learned counsel, the lower appellate court found that the rent for the month of January 1994 and February 1994 was remitted through money order on 12.03.1994, which clearly proves the fact that the defendant No. 1 defaulted in payment of rent for two consecutive months i.e. January 1994 and February 1994. Likewise the rent for the month of March 1994 was also payable within the first week of March 1994, which was admittedly sent through money order on 24.03.1994, therefore, the defendant No. 1 also defaulted in payment of rent for the month of March 1994 but the lower appellate court without considering Section 11(1)(d) of the B.B.C. Act held that since the plaintiff refused to accept the rent, the defendant No. 1 has remitted the rent through money order, as such she is not a defaulter.

As stated above, nobody appeared on behalf of the respondents.

From perusal of the record, it appears that the defendant No. 1 admitted that the rent was agreed to be paid in advance in the first week of every calendar month as per the agreement and the defendant No. 1 was paying rent to the plaintiff. The lower appellate court also found that this was the agreement between the parties according to the terms and conditions mentioned in Ext. 5 (the deed of agreement dated 01.03.1992). Now, therefore, it becomes admitted fact that there was agreement between the parties that the rent for each month was payable within the first week of the said month for which the rent was payable.

Section 11(1)(d) of the B.B.C. Act reads as follows:

11(1)(d): 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 contract, or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16.

Here in the present case as stated above, there was contract between the parties i.e. Ext. 5 to the effect that the rent was payable in the first week of each month for which the rent was payable. In view of the provision as contained in Section 11(1)(d) of the B.B.C. Act as quoted above, the rent for the month of January, 1994 was payable by the first week of January i.e. by 7th of January 1994 and likewise the rent for the month of February, 1994 was payable by 7th of February 1994 and the rent for the month of March, 1994 was lawfully payable by 7th of March 1994. The second part of Section 11(1)(d) of the B.B.C. Act speaks about the cases when there is no contract between the parties.

From perusal of the lower appellate court judgment, it appears that the admitted fact is that the rent for the month of January 1994 and February 1994 i.e. Rs. 1000.00 was remitted by money order on 12.03.1994 and the rent for the month of March 1994 and April 1994 was remitted on 24.03.1994. The defendant No. 1 has produced Ext. D series, the money order coupon. So far this fact that the rent was remitted on 12th March 1994 and 24th March 1994 is concerned, it is the admitted fact which was also found by the lower appellate court. However, the lower appellate court held that it is clear that the rent was being paid hand to hand to the plaintiff in advance in every month. D.W. 11, the husband of defendant No. 1, has deposed that in the first week of January 1994 he had gone to pay the rent for the month of January 1994 but the plaintiff did not accept. Thereafter again for the month of February 1994 he went to pay which was again refused by the plaintiff, therefore, the money order was sent, as such the defendant No. 1 is not defaulter.

It may be mentioned here that according to defendant''s case itself when the husband of the defendant No. 1 tendered the rent for the month of January 1994 in the first week of January 1994, which was the contract between the parties and the plaintiff refused the same, there is no explanation as to why the said amount was not remitted by the money order in the said very month or just after the refusal. Likewise, there is no explanation as to why the rent for the month of February 1994 was not remitted through money order within the first week of February 1994, which was the contract between the parties. Only because subsequently i.e. after commission of default the defendant No. 1 remitted the rent for the month for which default has already been committed, it cannot be said that the defendant No. 1 has not defaulted in payment of rent in view of the provision as contained in Section 11(1)(d) of the B.B.C. Act. The only general explanation has been given by the defendant No. 1 that the plaintiff refused to accept the rent, therefore, the defendant No. 1 has remitted the rent through money order. As stated, there is no explanation as to why the rents were not remitted within the period for which the parties had contracted in terms of Ext. 5 i.e. the agreement between the parties.

It appears that the lower appellate court without considering this provision of law has held that the defendant No. 1 is not a defaulter, which is contrary to the provision as contained in Section 11(1)(d) of the B.B.C. Act.

In view of the above discussions, I find that the defendant No. 1 remitted the rent after she became a defaulter for the month of January, February and March 1994, therefore, the subsequent remission of rent will not absolve her from being a defaulter. Thus the substantial questions of law Nos. 1 and 2 are answered in favour of the plaintiff-appellant and against the defendants-respondents.

I have already heard the learned counsel for the appellants on the Interlocutory Application No. 3650 of 2004. This interlocutory application was directed to be heard at the time of hearing of the Second Appeal. The said interlocutory application has been filed under Order XXXIX Rule 1 and 2 of the CPC praying for injunction restraining the respondents from subletting the suit properties. Since the appeal is being heard, the learned counsel for the appellants submitted that he is not pressing this interlocutory application. Accordingly, this interlocutory application is rejected as not pressed.

So far I.A. No. 2162 of 2008 and I.A. No. 270 of 2009 are concerned, learned counsel for the appellants submitted that in agreement (Ext. 5) the parties had agreed that the rent of the suit premises will be enhanced in each three years at the rate of 20%. The defendant No. 1 is not paying the said rent nor is remitting the said rent to the plaintiffs according to the agreement. It may be mentioned here that no counter affidavit has been filed to the interlocutory applications. Nobody appeared to oppose the prayer. It is admitted fact that in view of the conditions of Ext. 5 there was agreement between the parties that the rent will be enhanced at the rate of 20% after each three years. Since there is no counter affidavit filed on behalf of the respondents to the effect that in fact the defendant No. 1-respondent is paying the said agreed rent for the month after the decree, the admitted fact now is that the defendant No. 1 is not paying the rent as claimed by the original plaintiff-appellant in the interlocutory applications. In view of the above facts, it is made clear that the present appellants are entitled to realise the rent agreed between the parties. Both the interlocutory applications are thus allowed. Accordingly, this Second Appeal is allowed. The impugned judgment and decree of the lower appellate court is set aside and the judgment and decree of the trial court is hereby restored. The plaintiff''s suit for eviction is decreed. In the above facts and circumstances of the case, no order as to costs.