Ram Gopal Agrawal vs Sri Surendra Nath Ojha

S.R. Jha and Ashwini Kumar Sinha, JJ.—This application in revision arises out of an order dated 4.7.81 passed by the learned 2nd Additional Subordinate Judge, Muzaffarpur, in Title Appeal 135 of 1968. By the impugned order the defendant petitioner, who was the appellant before the learned Additional Subordinate Judge, was not allowed to adduce evidence in a case emanating from the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the ''1947 Act''.). The case has a very chequered career. But the relevant facts are very short on the question of law and jurisdiction as urged at the Bar by Mr. Shree Nath Singh, learned counsel for the petitioner. As usual, the plaintiff opposite party filed Title Suit 127 of 1964 in the court of the 1st Munsif, Muzaffarpur, against the defendant petitioner for recovery of arrears of rent and for eviction from the house situate in mohalla Motijhil, Muzaffarpur town, bearing old municipal holding 153 corresponding to new holding 157, on two grounds-(i) that there was a, default in the payment of arrears of rent for a period of more than two months and (ii) on the ground of personal necessity. As is obvious, the suit was filed under the provisions of section 11 of the 1947 Act. During the pendency of the suit, an application u/s 11A of the said Act was filed and the trial court passed orders to the effect that the defendant petitioner must deposit to the credit of the plaintiff landlord (opposite party) all such arrears at the admitted rate as had accrued since the date of institution of the suit till the matter was disposed of. As a necessary corollary, as was enjoined in section 11A of the 1947 Act, the failure on the part of the tenant to deposit the arrears within 15 days from the date of the order and the deposit of the current rent for every month on or before the 15th day of the succeeding month entailed a forfeiture of any defence with regard to eviction to be put forth by the tenant defendant. Admittedly, there was a default and the necessary consequence followed. The defence of the petitioner with regard to eviction was struck out. Various other proceedings took place which, it is needless to mention in view of the point taken. But one point which needs to be mentioned is that in spite of the defence of the petitioner hiving been struck out, the suit was partly dismissed and partly decreed. On an appeal having been preferred by the petitioner, the appeal was allowed and the suit was dismissed on the ground of non-service of notice u/s 106 of the Transfer of Property Act. In view of the law then in vogue as laid down by a 3-Judge Full Bench decision of this Court in the case of Niranjan Pal and Another Vs. Chaitanyalal Ghosh and Another, . The matter came up in second appeal to this Court and the learned single Judge, before whom the case was placed for final hearing, also upheld the order of the lower appellate court dismissing the suit. Thereafter a letters patent appeal was preferred being Letters Patent Appeal 2 of 1975. By that time the judgment of the Supreme Court was pronounced in the case of V. Dhanapal Chettiar Vs. Yesodai Ammal, wherein it was held that in a suit for eviction under special/local Act, like the Act in question, there was no question of requirement of any notice u/s 106 of the T.P. Act being served. In that view of the settled law, the letters patent appeal filed by the plaintiff opposite party was allowed and the matter was sent back for decision in accordance with the law on the materials on record.

When the matter went back to the lower appellate court, to which court the case was remanded, the suit was decreed on the ground of default in payment of rent. The petitioner having appealed before the lower appellate court, a point was raised by the petitioner that he be permitted to cross, examine the plaintiff opposite party''s witnesses. This prayer was rejected. The matter again came up for adjudication in a civil revision in this Court, this Court rejected the prayer of the petitioner for such an opportunity to be given and it was further directed that the court of appeal shall dispose of the appeal in accordance with the directions given in the judgment of the letters patent appeal mentioned above.

Thereafter the petitioner filed an application for giving him opportunity to adduce evidence on his behalf as the 1947 Act had already exhausted itself on 31st March, 1971, and there was no law engrafted in section 11A of the 1947 Act nor had any subsequent law perpetuating such an action been brought on the State Book. The court below rejected the prayer on the ground that it was bound by the directions of this Court in Civil Revision 614 of 1961 in which it had been so directed, as already stated above. The court below disposed of the matter in accordance with directions of this Court in the judgment of the letters patent appeal.

The admitted fact is that the 1947 Act exhausted itself on 31st March, 1971. Formerly it was to remain in force u/s 1(3) of the said Act up to and including 31st of March, 1961. It was, however, substituted by Bihar Act 3 of 1947 and was made to remain in force up to 31st March, 1971. Mr. Shree Nath Singh, learned counsel for the petitioner, wanted to persuade us to hold that the next Act, which came into force, was the Bihar Building (Lease, Rent and Eviction) Control Act, 1977 (Act 162 of 1977) and in between there was a period of interregnum. His contention, therefore, was that there being no 1947 Act in force, the penal clause as attached to the substantive part of section 11A of the 1947 Act had ceased to remain in force and that, therefore, the penal clause debarring the defendant tenant from putting up any defence with regard to eviction ought to have been deemed to have been obliterated, by the Statute and it could not have been revived even by giving a retrospective effect to Bihar Act 16/77. We are afraid there is a grave fallacy in this contention. The answer is to be found in sub-section (3) of section 1 of the 1947 Act itself. In sub section (3) of section (1) of that Act are engrafted certain provisos. The relevant portions of the proviso as contained in clause (b) thereof of section 1(3) of the 1947 Act may be quoted in extenso:--

Provided that the expiration of this Act under the operation of this sub-section shall--

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(b) affect any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act or any order made thereunder; or...

(c) affect any investigation or legal proceeding in respect of any such liability or punishment as aforesaid;...

and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed, as if this Act had not expired.

On a plain reading of proviso (b) it is clear that any liability incurred under the 1947 Act, irrespective of its having ceased to have any effect, shall continue in respect of any provision of the Act or any order made thereunder (underling for the sake of emphasis). Mr. Shree Nath Singh, learned counsel for the petitioner, has contended that the order u/s 11A of the 1947 Act requiring the tenant defendant to pay the sum as required in law on the default of which the defence was to be struck out was not a liability under the Act. There is a grave fallacy in this contention. The term ''liability'' has been defined in the dictionary as "the state of being liable" and the term ''liable'' in its turn, has been said to mean any Act which makes one responsible according to law. That it was an act for which the petitioner was responsible according to law cannot be denied. But that apart, last part of proviso (b) to section 1(3), which says any liability incurred under this Act or any punishment incurred in respect of any contravention of this Act "or any order made thereunder" makes the matter worse for the petitioner. An order was duly passed u/s 11A of the 1947 Act. That order in its turn also says, as there was no alternative under the Statute, that in the event of failure to pay the amount as stipulated in the order, the inevitable consequence of forfeiture of the right to take the defence against eviction shall be incurred. It, therefore, follows as a necessary corollary that the petitioner had incurred a liability for contravention of the order made under the Act of 1947. This liability continued even after the cessation of the enforcement of the 1947 Act. It is, however, pertinent to point out here that an Act was put in the Statute Book being Act 16 of 1977 and was given a retrospective effect as if the old Act had not ceased to have any effect. The only difference that was made was that section 11A of the 1947 Act was numbered as section 13 in the 1977 Act, the language being mutatis mutandis couched. We need not, however, detain ourselves on this question any further, for, on the express language of proviso (b) to section 1(3) of the 1947 Act, the petitioner cannot be held to be entitled to any relief in the matter canvassed before us against the impugned order. If any authority be needed for the proposition, we may refer to a Bench decision of this Court in the case of Ahmad Raza Khan Vs. Bhola Prasad, wherein it had been held that by virtue of saving clause as laid down in proviso (b) to subsection (3) of section 1 of the 1947 Act, even after the expiration of the said Act, it shall not affect any liability incurred under that Act. On the facts of that case, it was held that if an order u/s HA had been passed on 12.2.77, it did not effect the liability of the tenant to pay the rent as directed u/s 11A of the 1947 Act. It was further held that clause (c) of the proviso to section 1(3) of 1977 Act was also relevant in this connection, for it provided that if any legal proceeding had already been instituted then that shall continue even after the expiration of the 1947 Act. That, in our view, clearly answers the half-hearted suggestion of Mr. Shree Nath Singh, learned counsel for the petitioner that provision (b) to section 1(3) has to be read in the context of proviso (c) thereto. In view of the Bench decision of the Court, referred to above, this argument is no longer available to the petitioner.

In the result, we do not see any infirmity, much less any jurisdictional error, in the order impugned. The application is, accordingly, dismissed and in view of the protracted litigation, which has taken place on some plea or the other, at the instance of the defendant petitioner, we hold the petitioner to be liable to cost. Let the records of this case, if already received here, be sent down forthwith with a direction to the court below to dispose of the case at as early a date as possible.