Shailendra Kumar & Ors. vs The State of Bihar

The sole plaintiff, Lalita Devi (since deceased and

substituted) had filed this first appeal against the judgment and decree

dated 31.05.2005 passed by the learned Sub-Judge-IV, Gaya in

Money Suit No.07 of 2004/46 of 2002 whereby the plaintiff''s money

suit was dismissed.

The plaintiff-appellant filed the aforesaid money suit

praying for realization of Rs.3,96,324.00 as arrears of rent payable by

defendants-respondents according to the rent fixed by the Rent

Controller under the Bihar Building (Lease, Rent & Eviction) Control

Act, 1982 (hereinafter referred to as B.B.C. Act).

According to the plaintiff the suit premises was let out

to the Consolidation Department, Government of Bihar for running

office of the said department on monthly rent of Rs.300/- in the year

1984-85. Dindayal Prasad had let out the premises, who was the

father-in-law of the plaintiff, Smt. Lalita Devi. After the death of

father-in-law, there was partition between the three sons of Dindayal

and the suit premises fell in the share of husband of the plaintiff.

However, husband of the plaintiff also died on 05.05.1990.

Subsequently she filed rent fixation case before the Controller in the

year 1998 being Rent Fixation Case No.01 of 1998-99. The Rent

Controller called for a report from Anchal Adhikari. Anchal Adhikari

after due enquiry reported to the Controller on 14.10.1998

recommending enhancement of rent and accordingly the Rent

Controller, Tekari by order dated 15.07.1999 enhanced the rent to

Rs.2,942.16 per month retrospectively from the month of January,

1990. Since the defendant had already paid Rs.300/- per month, the

monthly rent due is Rs.2,642.16 which is payable from the month of

January, 1990 till the month of July, 2002 which comes to

Rs.3,96,324/-. The defendant no.4 refused to pay the rent on

06.08.2002, therefore, after notice under Section 80 CPC the suit was

filed.

Although the learned G.P. appeared in the suit in the

court below but no written statement was filed. However, Ext.A and

Ext.B were filed by the defendants showing the fact that they have

already vacated the suit premises.

The learned trial court on the basis of the aforesaid

facts and pleadings proceeded to pass the judgment under Order 8

Rule 10 CPC.

The learned court below after hearing the parties found

that the tenanted premises has been vacated by the defendants-

respondents on 27.03.2003 and possession was accepted by the

plaintiff. The learned court below also found that the order passed by

the Rent Controller is not according to law and, therefore, the order of

the Controller cannot be given effect to and, hence, dismissed the

plaintiff''s money suit.

The learned counsel for the appellants submitted that

the learned court below wrongly held that the order of the Controller

cannot be enforced. According to the learned counsel, the order of the

Controller is within the jurisdiction of the Controller, which is still

there and, therefore, the plaintiffs-appellants are entitled to receive the

rent at the rate at which it was fixed by Rent Controller. The learned

counsel further submitted that admittedly in spite of the rent fixation

the defendants were only paying Rs.300/- per month and, therefore,

the plaintiff has filed the suit claiming the arrears only. The court

below approached the case in wrong angle and did not consider the

fact that there is no contrary evidence or facts placed by the

defendants-respondents. In such circumstances, the court below

should have decreed the plaintiff''s suit. According to the learned

counsel, the learned trial court has wrongly not placed reliance on

Ext.5, the order passed by the Controller, particularly when there was

no dispute raised by the State authorities.

On the other hand, the learned State Counsel for the

respondents submitted that the plaintiff''s suit itself is barred by law of

limitation. Further the order as contained in Ext.5 is patently illegal as

is based on report of Anchal Adhikari. The Controller has not himself

exercised his jurisdiction, therefore, the learned trial court has rightly

held that the order is illegal. The order has been passed in 1999 and

the rent has been enhanced retrospectively from the Month of January,

1990 although the rent fixation case was filed in the year 1998.

In view of the above contentions of the parties the only

point arises for consideration in this first appeal is as to whether the

plaintiffs-appellants are entitled for realization of arrears of rent as

claimed by them from January, 1990 till the month of July, 2002 and

whether the impugned judgment and decree are sustainable in the eye

of law.

The plaintiff has filed this simple money suit for

realization of the arrears of rent from the month of January, 1990 and

the claim is based on Ext.5. It is admitted fact that Ext.5 has been

passed by Rent Controller on 15.07.1999 on the basis of the report of

Anchal Adhikari. Except this Ext.5, there is no other basis for the

claim put forth by the plaintiff. It is admitted fact that the defendants

have vacated the suit premises on 27.03.2003, which is evident from

Ext.A. Ext.B supports the case that eight month''s rent was paid by the

defendant to the plaintiff at the rate of Rs.300/- per month on

15.03.2003.

It is the case of the plaintiff that the House Controller

called for a report from Anchal Adhikari, Paraiya and Anchal

Adhikari after due enquiry recommended enhancement of rent by

letter dated 14.10.1998.

Proviso to clause (c) of Section 8 of the B.B.C. Act

provides that the Rent Controller on being satisfied that the rent of a

building is low shall fix the rent of the building at a figure which shall

not be less than the average monthly rent actually paid for the same or

similar accommodation by any tenant over the period of twelve

months preceding the first day of December, 1980, increased by not

more than 25% of the average monthly rent so received by the

landlord.

In view of this provision the duty has been cast on the

Controller to determine fair rent and while determining the fair rent

what matters to be considered by the Rent Controller has been

mentioned. In Ext.5 this procedure has not been followed at all. It

appears that the power, which should have been exercised by the

Controller, was delegated by the Controller to the Anchal Adhikari.

Anchal Adhikari enquired into the matter and recommended

enhancement of rent. It is not the case of the plaintiffs-appellants that

Anchal Adhikari examined witnesses or documentary evidences in

presence of the State authorities and then recorded any finding

regarding the fair rent. It appears that only on the recommendation of

Anchal Adhikari, the Controller passed the order, Ext.5 which is

contrary to law. Therefore, the learned trial court has rightly held that

the order which is contrary to law is illegal order. In view of my

above discussion I also find that the order, Ext. 5 is illegal order.

Accordingly, the finding of the trial court on this point is hereby

confirmed.

It appears that this Ext.5 is dated 15.07.1999. The rent

fixation case was filed in the year 1998. However, the Rent Controller

fixed the fair rent retrospectively from the month of January, 1990.

Now it becomes clear that the rent was fixed retrospectively that too

more than prior to eight years from filing of the application for

fixation of rent. It is not the case of the plaintiff that the plaintiff

prayed for fixation of rent from the month of January, 1990.

Further according to this Ext.5, arrears become due

from the date of the order i.e. 15.07.1999. Article 52 of the Limitation

Act provides that the period for filing suit for arrears of rent is three

years from the date when the arrears become due. The suit has been

filed on 14.11.2002. The limitation of three years will be completed

on 14.07.2002. Therefore, the money suit should have been filed

within this date but it has been filed on 14.11.2002. Thus, the suit

itself is barred by law of limitation. Section 3 of the Limitation Act

provides that every suit shall be dismissed, if it is filed after the

prescribed period although limitation has not been set up as a defence.

Therefore, in the present case, from the averment made in the plaint

itself it is evident that the money suit filed by the plaintiff is barred by

law of limitation. Therefore, in view of Section 3 of the Limitation

Act although the defendants-respondents have not raised the point of

limitation as defence, the suit should have been dismissed on this

score alone or the plaint should have been rejected under Order 7 Rule

11 (d) CPC. In view of my above discussion I also find that the

plaintiff''s suit is barred by law of limitation.

In the result, I find no merit in this first appeal.

Accordingly, this first appeal is dismissed. In the facts and

circumstances of the case, there shall be no order as to cost.