Ram Niranjan Prasad Tulsyan vs Chhedilal Saraf and Another

H.L. Agarwal, J.—In this application on behalf of the plaintiff landlord an interesting Question has been raised for consideration of this Court.

The relevant facts are these, It is not disputed that the premises in question was in lease by the plaintiff to the defendants for a fixed term of twenty years commencing from the 15th of January, 1962 on a monthly rental of Rs. 111/-. According to his further case, the defendants committed defaults in payment of the monthly rentals for the months of February, March and April 1969. I am not concerned with the other allegations made in the plaint regarding breach of the conditions of the tenancy.

After the written statement was filed by the defendants, the plaintiff made an application u/s 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act for necessary direction in regard to the deposit of the arrears and future rents. The learned Munsif, however, has refused the prayer on taking a view that Section 11-A of the Act was itself not attracted to the facts of the present case because "it was not a case of month to month tenancy but a case of lease", as the provisions of Section 11 were subject to those contained in Section 12 of the Act. He also repelled the contention of the plaintiff that Clause (e) of Section 11 of the Act which provides a ground for eviction, of a tenant, in case of his holding on a lease for a specified period on the expiry of the period of the tenancy, by an argument that this was not a case for eviction of a tenant within the meaning of Clause (e) of Section 11 on the expiry of the period of tenancy, but was under Clause (a).

In my opinion, the learned Munsif has committed an apparent error of jurisdiction. Section 11 of the Act has provided all the grounds upon which an action for eviction of tenants can be taken under the Act. Under Clause (d) a tenant can be evicted where the amount of two months'' rent lawfully payable by him and due is in arrears. The law now does not make any distinction after its extensive amendments in the year 1955 in the case of a tenant month to month on any other class of tenant. Under Clause (a) of the Act before the amendment, action for eviction on the ground of nonpayment of rent, breach of the conditions of the tenancy, or for subletting of the building without the consent of the land-lord now incorporated under Clauses (a), (b) and (d) of the substituted section, could be taken only against a ''tenant month to month''. This classification has been advisedly omitted from the present section and the present law does not make any distinction in the case of a tenant month to month or of any other tenant. Apparently, therefore, action for eviction of a tenant who might be even holding premises on a lease for a specified period, may well be taken where he commits a default in payment of two months'' rent within the meaning of Clause (d) of Section 11 which position was not available to such a landlord under the old provision of Section 11.

Learned counsel for the opposite party, however, invited my attention to Section 12 (3) of the Act which contemplates an action by a landlord in the case of a tenant in possession of any building held on a lease for a specified period. According to this sub-section, if such a tenant fails to vacate the building on the termination of the lease or on the expiry of the period fixed by the court under Sub-section (2), an application may be made by a landlord to pass an order for ejectment of the tenant. This section, therefore, clearly contemplates a situation for eviction of that class of tenants whose ejectment is sought by a landlord definitely on the expiry of the lease, a position not applicable to the plaintiff''s suit. As already noticed, the plaintiff in this case has instituted the suit even much before the expiry of the period of the lease, on the ground of default in payment of two months'' rent thereby claiming relief under Clause (d) of Section 11. The present case, there-fore, by no stretch of imagination can be covered by Section 12 of the Act and is surely covered by the main section, namely, Section 11.

Even assuming for the sake of argument that such a suit also may be covered by Section 12, still as held by this Court in the case of Arun Kumar Das Gupta v. Aditya Kumar Talapatra 1960 BLJR 681 a plaintiff in that case has got two remedies, (1) as provided u/s 11 and (2) as provided u/s 12 (3). Untwalia, J. (as he then was) and if I may say so with great respect has very rightly said that the plaintiff may elect either of them. The test of the election of the remedy is apparent where he files an application. It may then be said that there is no suit for eviction of the tenant u/s 11 as the application may not be properly called a suit.

Examining the plaint in this case, it is manifest that the present plaintiff has elected for filing a regular suit instead of an application. Not only that, he has filed it as a regular title suit, and the plaint satisfying all the conditions of Order 7 of the Code of Civil Procedure, has also valued it u/s 7(xi)(cc) of the Court-Fees Act and paid the court-fee accordingly. It is apparent that had he elected for filing an application within the meaning of Section 12 (3) of the Act, he need have filed a simple application on a prescribed court-fee meant for an application "on a court-fee of Re. 1/- and odd only.

Learned counsel for the opposite party, however, emphasized that this suit should still be held to be an application for the reason that the plaintiff had claimed "compensation for wrongful use and occupation at the rate of Rs. 7/- per day" meaning thereby in the term of learned counsel "daily compensation" within the meaning of Section 12 (3) of the Act. This contention cannot be accepted, as a mere claim of compensation by way of damages in view of a definite proof of the intention of the election manifested by payment of court-fees, it cannot be held that the suit is not a suit but an application.

Once it is held and on the facts discussed above. I have got no doubt that it must be up held in this case that the plaint is a suit within the purview of Section 11 of the Act, it cannot but be held that the provisions of Section 11 of the Act must have application with full force to the facts of the present case and the learned Munsif should have considered the application u/s 11-A on its merits. He has wrongly held that the application as such was not maintainable and on taking this erroneous view he has failed to exercise the jurisdiction vested in him.

I would accordingly allow this application set aside the order in question and direct the learned Munsif to dispose of the application u/s 11-A of the Act on its merit. As the question raised was one of law, I would direct the parties to bear their own costs.