Raghubar Dayal vs Md. Yasin and Others

N.L. Untwalia, J.—In title suit No. 12 of 1964 the court below had earlier made an order on 1-10-64 directing defendant No. 1 to deposit arrears of rent since January, 1960 to September 1964 at the rate of Rs. 100/- per month within 15 days from the date of that order; he was also directed to deposit rent for current and future month by the 15th day of the next following month. A dispute as to title seems to have been raised in the title suit by defendant No. 1. This question was considered by the learned Munsif in his order dated 1-10-64 and finding that the defence in respect of the title of the plaintiffs to institute this suit was not such as to justify the rejection of the prayer made on behalf of the plaintiffs u/s 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947- hereinafter called the Act-the prayer of the plaintiffs was allowed.

Defendant No. 1 came up in civil revision 1273 of 1964. Since there was no averment in the plaint as filed that any notice u/s 106 of the Transfer of Property Act had been served on the defendant the order dated 1-10-64 u/s 11-A of the Act was set aside but the plaintiffs were given an opportunity to amend their plaint in regard to the point of notice and to make a fresh application for deposit of arrears of rent u/s 11-A.

The plaintiffs amended the plaint, and on their application for amendment being allowed, they made a fresh application for deposit of arrears and current rent. By order dated 19-5-66, the learned Munsif has given almost the same and similar direction to defendant No. 1 to deposit the rent from January 1, 1960 upto April, 1966 at the rate of Rs. 100/- per month and to deposit current and future rent also at the same rate by the 15th day of the next following month. Defendant No. 1 has again come up in revision.

Three points were urged in support of this application on behalf of the defendant-(1) that the averment introduced in the plaint as to the service of notice u/s 106 of the Transfer of Property Act is not true or, in any event, the notice alleged to have been served upon the petitioner is not valid according to law; hence even though the averment has been introduced in the plaint, the suit is not maintainable and no order u/s 11-A of the Act ought to have been made; (ii) that there being a dispute of title in the case, no order under the said provision of law could or ought to have been made; and (iii) that in any event order for deposit of rent prior to the purchase of the property by the plaintiffs, i.e., prior to September, 1963 ought not to have been made as the plaintiffs purchased the property on 6-9-63. I do not find substance in the first two points urged on behalf of the petitioner. The averment has been made in the plaint in regard to the question of notice. Whether the averment is true and whether the notice is valid according to law or not are questions which will have to be decided in the suit. There is nothing in Section 11-a of the Act, which stands as a bar in the way of the court in making the order directing the defendant to pay rent on such grounds as urged with reference to the point of notice. In my opinion, a tenant occupying the premises of a landlord is always bound to pay rent even if the suit for eviction may ultimately fail on the ground of notice or on any other ground. That being so, the court below has committed no error in giving the direction in this case.

The question of title was raised before the learned Munsif who had passed the order dated 1-10-64. He has given good reasous for not refusing to make an order u/s 11-A of the Act on that account. This point again does not seem to have been agitated before the learned judge who disposed of civil revision 1273 of 1964 nor does it seem to have been agitated seriously before the learned Munsif who has passed the present order under revision. I do not think there is any substance in this point.

The third contention put forward on behalf of the petitioner has got to be accepted as correct in view of the Bench decision of the Calcutta High Court in Daya Debi Vs. Chapala Debi, . It was pointed out in that case at page 479 (column 2)-" ...the cause of action for recovery of arrears of rent is completely satisfied as soon as the assignor receives the consideration for which he sells the arrears of rent and what the assignee purchases is not the cause of action for recovery of arrears of rent, but the right of the assignor to recover those arrears."

A reference in this case may be made to a Bench decision of this Court, which was relied upon in the Calcutta decision, i.e., Rameshwar Narain Singh v. Rekhath Koeri AIR 1923 Pat. 165 where it has been pointed out that transfer of arrears of rent is really a transfer of actionable claim and could be transferred in accordance with the provisions of the Transfer of Property Act.

u/s 11-A of the Act, the landlord who files the suit may make an application at any stage of the suit for an order on the tenant to deposit arrears of rent, that is to say, rent or arrear of rent which was payable to the landlord who files the suit. According to the averment in paragraph 5 of the plaint, the plaintiffs claim that they had purchased all arrears of rent due from the tenant when they purchased the property on the 6th of September, 1963. In that event, what was payable by the tenant to the previous landlord who assigned the property to the present landlords was rent. But as soon as the accumulated amount of arrears of rent was transferred by the sale deed to the plaintiffs, it ceased to have the character of rent or arrears of rent which was payable by the tenant to the transferor. The transferees may be entitled to realise this money from the tenant if they have validly purchased the actionable claim or the right to realise the rent which was due to the previous landlord. But, in my opinion, for the purposes of Section 11-A of the Act, it cannot be said that the amount so transferred to, and purchased by, the landlords who had instituted the suit is the amount of arrears of rent for which the landlords may make an application for a direction to the defendant to make deposit of the amount. In that view of the matter, I hold that u/s 11-A of the Act the petitioner cannot be directed to deposit arrears of rent prior to September, 1963.

In the result, I allow the application partly modify the order of the learned Munsif and hold that the defendant petitioner is not required to deposit arrears of rent prior to September, 1963 u/s 11-A of the Act there will be no order as to cost.