Shankar Sahu and Another vs Niranjan Prasad

Satyeshwar Roy, J.—The petitioners, the appellants in the Court below, being aggrieved by order dated 27-3-1979 passed by the Court below, directing them to deposit the balance of the arrear rent from the date of the institution of the suit has filed this application.

By the impugned order, the Court below has directed the petitioners to deposit (a) the current rent from month to month at the rate of Rs. 150/- (Rupees One hundred fifty) per month, and (b) the balance of the arrear rent from the date of the institution of the suit, which was earlier deposited in the trial Court at the rate of Rs. 55/- (Rupees Fifty five) per month instead at the rate of Rs. 150/- (Rupees One hundred fifty) per month. At the outset it was stated on be-half of the petitioners that they are not aggrieved by the first part of the order, but are aggrieved by the second part and this civil revision application is confined to that part only.

A suit was filed by the opposite party for eviction of the petitioners from the building. In the trial Court, an application was filed by the opposite party u/s 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (1947 Act) which corresponds to Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (1977 Act) for a direction on the petitioners to deposit the rent from the date of the institution of the suit at the rate of Rs. 150/- (Rupees One hundred fifty) per month and also the rent month to month. That prayer was allowed. The petitioners challenged the validity of the order in this Court in Civil Revision Application No. 9 of 1977(R). This Court upheld the order of the trial Court with the modification that the petitioners were directed to deposit the rent at the rate of Rs. 55/- (Rupees fifty five) per month, the initial contractual rent, although the rate at which the rent was last paid was Rs. 150 (Rupees One hundred fifty) per month. The suit was decreed by the trial Court.

The petitioners filed an appeal which was numbered as Title Appeal No. 27 of 1978. In that appeal an application was filed on behalf of the opposite party for a direction u/s 13 of the 1977 Act. By the impugned order that prayer had been allowed by the Court below.

Learned counsel appearing on behalf of the parties addressed me at length, one in support of the order and the other challenging it. As noticed above, we are, in this case, concerned with the validity of the second part of the order i. e., part (b) as stated in para .2 above.

Mr. N. K. Prasad, learned counsel appearing on behalf of the petitioners, drew my attention to the order passed by this Court in Civil Revision Application No. 9 of 1977 (R) in which this Court had directed the petitioners to deposit the rent at the rate of Rs. 55/- (Rupees fifty five) per month, from the date of the institution of the suit. Mr. Prasad contended that in view of the earlier order of this Court passed in the said civil revision application and an appeal being in continuation of the suit. The Court below could not have directed the petitioners to de-posit the balance arrear rent at the rate of Rs. 95/- (Rupees Ninety five) per month from 3-1-1576 to Dec., 1977. According to Mr. Prasad, the Court below had no jurisdiction to sit over the order of this Court pass-ed in Civil Revision Application No. 9 of 1977(R) inasmuch as the order amounts to revising/modifying the order of this Court. He also contended that so far the period from 3-1-1976 to Dec., 1977 is concerned, the order passed by this Court will operate as res judicata and, therefore, the order, of the Court below must be set aside. Mr. S. B. Sinha, learned counsel appearing on behalf of the opposite party, contended that in view of the Full Bench decision in N.M. Verma Vs. Upendra Narain Singh, the Court below had jurisdiction to direct the petitioners to deposit the balance arrear rent at the rate of Rs. 95/-(Rupees Ninety five) per month and the earlier order of this Court in Civil Revision Application No. 9 of 1977 (R) will not operate as res judicata.

The law as laid down in N. M. Verma''s case (supra) is that the rent to be deposited, both the current as well as the arrear, will be at the rate of rent last paid, notwithstanding Section 4 of the Act. There is no dispute in this case that the rate of rent last paid was at the rate of Rs. 150/- (Rupees one hundred fifty) per month. According to Mr. Prasad since by the order passed in Civil Revision Application No. 9 of 1977 (R) the rate of rent at which the tenant was liable to deposit was the rent payable at the inception of the tenancy and the increase in the rate of rent in contravention of Section 4 of 1947 Act was to be ignored, the appellate Court could not have revised the order of this Court keeping in view the jaw laid down in N. M. Verma''s case (supra). In other words, so far the parties are concerned at all stages of the suit, the deposit is to be made at the rate of Rs. 55/- (Rupees fifty five) per month.

If the contention of Mr. Prasad that the Court below could not have directed the petitioners to deposit anything in excess of Rs. 55/- (Rupees Fifty five) per month for the period Jan., 1976 to Dec., 1977 is correct, then the Court below could not have directed the petitioners to deposit the rent at the rate of Rs. 150/- (Rupees one hundred fifty) per month because of the order of this Court, passed in Civil Revision Application No. 9 of 1977 (R), was there. Mr. Prasad stated that the order of the Court below directing the petitioners to deposit the rent at the rate of Rs. 150/- (Rupees one hundred fifty) per month cannot be challenged in view of the law laid down in N.M. Verma Vs. Upendra Narain Singh, . This statement, he made, in spite of the fact that in the earlier civil revision application a direction was given to deposit the rent at the rate of Rs 55/- (Rupees fifty five) per month. The settled legal position is that the interpretation of Section 11-A of 1947 Act/Section 13 of 1977 Act as made in N. M. Verma''s case (supra) shall be deemed to be the law throughout. In my opinion, when an order is passed by any Court it is required to apply the law as was available on that date. In this case the order impugned was passed on 27-3-1979 and the interpretation of that section on that date was that the tenant was liable to deposit the rent at the rate last paid. There is no dispute that if the liability to deposit the rent was at the rate of Rs. 150/- (Rupees one hundred fifty) per month, the petitioners were partly in arrear with regard to the period from the date of the institution of the suit till Dec., 1977. Since Mr. Prasad did not challenge that part of the order by which the Court below had directed the petitioners to deposit the current rent at the rate of Rs. 150/-(Rupees one hundred fifty) per month as well as the arrear from Jan., 1978 up to Feb., 1979 at that rate, he cannot be heard to argue that the Court below had no jurisdiction to direct the petitioners to deposit the balance arrear rent admittedly due from and payable by them as they had deposited the amount at the date of Rs: 53/- (Rupees fifty five) per month. J., therefore, find no reason to interfere, with the order passed by the Court below.

During the course of hearing, question arose as to whether the order of this Court in Civil Revision Application No. 9 of 1977(R) was interlocutory or final. Mr. Pra-sad contended that the order was not interlocutory and it was final, so far the parties are concerned. No authority was brought to my notice in support of this contention. When an order is passed u/s 13 of 1977 Act, none of the issues in the suit is disposed of. The order so passed has no effect with regard to final adjudication of the issues. The order that is so passed is one that is passed during the pendency of the proceeding at a particular stage, (trial stage, appellate stage) without finally determining the proceeding at that stage. Such order, in my opinion, is an interlocutory order and remains in force till the disposal of the proceeding at that stage. To my mind at that stage also the order may be modified on changed circumstance. An order passed when the suit is before the trial Court, spends its force after the disposal of the suit. The order is not revived when an appeal is fried against the decree of the trial Court and a fresh order is to be passed by the appellate Court, if a prayer is made by the landlord. If we accept Mr. Prasad''s contention, then no fresh order was required to be passed by the appellate Court. This Mr. Prasad rightly did not submit.

Mr. Prasad contended that the issue of rate of rent to be deposited, was res judicata, that having been finally adjudicated by this Court in Civil Revision Application No. 9 of 1977(R). I have already held that the order was interlocutory. It was final so long the suit was pending in the trial Court and would operate as res judicata only up to that stage. The appellate Court shall have to pass a fresh order, if a prayer is made before it and the appellate Court shall have to pass order in terms of law then prevailing, notwithstanding any order passed at the trial stage. Mr. Prasad submitted that, if that is the position, then a party who had lost a suit, which includes appeal, because of law as laid down by the High Court or Supreme Court, may again file a suit, if that law is reversed. The answer is that no fresh suit will lie on the same cause of action. If no lis was pending when the interpretation of a particular law changed, the litigant shall not be entitled to take any advantage of it.

In the result, there is no merit in this application and the same is dismissed but without costs. By order dated 6-4-1979 the operation of the impugned order was stayed by this Court. As the application has been dismissed the petitioners are directed to deposit the balance arrear rent from Jan., 1976 to Dec., 1977 calculated at the rate of Rs. 95/- (Rupees Ninety five) per month and the rent from Jan., 1978 to Dec., 1582 at the rate of Rs. 150/- (Rupees One hundred fifty) per month. The petitioners shall deposit the total amount in six monthly instalments, five monthly instalments of Rs. 2,000/- (Rupees Two thousand) each and the balance amount shall be deposited in the sixth instalment. Each instalment shall be deposited by the 15th of each month commencing from March, 1983. The other instalments shall be deposited by 15th of April, 15th of May, 15th of June, 15th of July and 15th of Aug., 1983. The petitioners shall also deposit at the rate of Rs. 150/- (Rupees one hundred fifty) per month the rent for Jan. and Feb., 1983 by 15th of Mar., 1983. The rent of Mar., 1983 and all subsequent months till the disposal of the appeal by the 15th of the next following month for which it becomes due. All the amount as directed to be deposited above by the petitioners shall be deposited in the Court below and if any deposit is made the opposite party shall be entitled to withdraw the same without furnishing any security. If the petitioners fail to comply with any part of this order, the defence against ejectment shall be struck off.