Shyam Sunder Tibrewal vs The State of Bihar and Others

Samarendra Pratap Singh, J.—The plaintiff/petitioner has prayed for setting aside the order dated 21.2.2009 contained in Annexure-1, passed in Title Eviction Suit No. 1 of 2006, whereby the trial court has rejected his petition filed u/s 15 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as ''the Act, 1982'') for payment of rent at the rate fixed by the House Controller, Lakhisarai. Before I consider the issue involved in this case, it would be necessary to notice the facts in brief:

The plaintiff-petitioner had let out the premises on rent to defendant/respondent no. 4 at the rate of Rs. 300/- per month with effect from 1.1.1998. On the application of the petitioner, the Rent Controller fixed the rent of the suit premises vide order dated 2.2.2002 at Rs. 1,100/- per month.

In the year 2006, the plaintiff-petitioner filed Eviction Suit bearing Eviction Suit No. 1 of 2006 on the ground of personal necessity.

During the pendency of the suit, the plaintiff-petitioner filed a petition dated 6.6.2007 u/s 15 of the Act for payment of arrears of rent and current rent at the rate of Rs. 1,100/- per month which was lawfully payable. The defendant-respondent no. 5 filed objection stating that the petitioner would only be entitled to monthly rent at the rate of Rs. 300/- per month, which was the last paid rent.

The trial court by its order dated 21.2.2009 rejected the plea of the petitioner for payment of rent at the rate of Rs. 1,100/- per month and directed that the defendant would be liable to pay the current rent as well as arrears of rent from the date of filing of suit at the rate of Rs. 300/- per month, which was the rate at which the rent was last paid.

The petitioner/plaintiff submits that the trial court has erred in holding that rent payable u/s 15 of the Act would be the last rent paid, as it would be in disregard of the rent fixed by the Rent Controller u/s 5 of the Act, 1982. Learned counsel for petitioner/defendant further submits that it is the rent fixed by the Rent Controller which would be the rent payable for the purpose of Section 15 of the Act.

The petitioner submits that the competent authority namely the Rent Controller way back in the year 2002 has fixed the rent at Rs. 1,100/- per month. In spite of fixation of rent which has attained finality, the defendant-respondent refused payment of rent so fixed by the Rent Controller and continued to pay rent at old rate of Rs. 300/- per month. The tenant is required under the law to pay the rent at the rate fixed by the Rent Controller, as the same would be lawfully payable rent. He submits that the rent payable would be deemed to be the fair rent fixed by the Controller. He contends that the learned trial court wrongly applied the decision of a Full Bench of this Court in case of N.M. Verma Vs. Upendra Narain Singh, .

The defendant/respondent no. 5 submits that admittedly the rent last paid was at the rate of Rs. 300/- per month and as such the court u/s 15 of the Act, 1982 can direct payment of rent only at the rate it was last paid.

In support of his submissions, the defendant relied upon a Full Bench decision of this Court in case of N.M. Verma Vs. Upendra Narain Singh, as well as a decision of a Division Bench of this High Court in case of Anisur Rahman and Another Vs. Sardar Jogender Singh @ Jogendra Singh ; and Syed Abid Imam Vs. Sharafat Hussain, .

I have heard the counsel for the parties. The question for consideration is whether the court below misconstrued the provision of Section-15 of the Act in directing the defendant-respondent to deposit the rent at the rate of Rs. 300/- per month and not at the rate fixed by the Rent Controller even prior to filing of the suit.

In case of N.M. Verma (supra), the issue before the Full Bench was as to what would be rate of rent payable u/s 11-A of the B.B.C. Act, 1947. In the said case, the defendant was initially inducted as tenant on a monthly rent of Rs. 160/-, which was enhanced to Rs. 2007-from 1970. The plaintiff-landlord filed a suit for eviction. After some time, he filed an application u/s 11-A of the Bihar Buildings Control Act, 1947 for a direction to deposit month to month rent at the rate of Rs. 200/- per month. On the other hand, the defendant-tenant stated that the rent last paid was Rs. 160/- per month and was subsequently enhanced to Rs. 200/- without recourse to the provision of the Act which was illegal and thus the plaintiff would not be entitled to additional amount of rent over and above Rs. 160/- which was being paid. The Full Bench held that since the rent had actually been paid by the tenant at a particular rate, the same has to be accepted by the court for the purpose of Section 11-A of Act, 1947, which is more or less similar to Section 15 of the present Act. Their Lordships were of the view that such an order of deposit of rent pending adjudication of the Eviction Suit u/s 11-A does not finally determine the liabilities of the parties, which had to be finally settled only by the ultimate judgment in the case.

In my view, the facts of the instant case is different from the facts in the case of N.M. Verma vs. Upendra Narain Singh (supra).

In the instant case, the rate of rent payable by the tenant was already finally determined and decided by the competent authority u/s 5 of the Act, 1982 in the year 2002. Thus nothing remains at this juncture to be finally determined so far as the issue regarding fixation or determination of rent is concerned.

Defendant-respondent has placed reliance on decision in case of Anisur Rahman vs. Sardar Jogendra Singh (supra) as well. In the aforesaid case, the issue was whether the order passed u/s 15 of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 could be revised or modified in view of subsequent order of the Rent Controller determining the fair rent. The defendant relied upon a Full Bench decision in case of Dr. Sachidanand Sinha Vs. The Collector, Patna and others, . The Full Bench held that the order passed u/s 15 of the 1982 Act cannot be modified because of determination of fair rent subsequently which is not the situation in the instant case, where fair rent has been decided much prior to filing of the suit.

It is relevant to state that the method of determining the fair rent under the old Act, 1947 has undergone sea change in the Act of 1982. The mode of fixation of fair rent under 1947 Act which was determined on Municipal valuation of tenanted premises has now been given, a go-bye. Under the 1982 Act, the fair rent is not determined on the basis of prevalent rent in the locality. Furthermore, the proceeding u/s 11 under the new Act is a summary proceeding whereas the proceeding under the old Act was a general proceeding.

As noticed earlier, Section 15 confers a right on the landlord to move an application at any stage of the Eviction Suit for direction to the tenant to deposit the rent month by month at the rate it was last paid alongwith the permissible arrears. The court after providing an opportunity may make an order for deposit of rent month by month at such rate as may be determined alongwith permissible arrears. Thus, the provision requires the court to determine the ''rent last paid''. However where the rate of rent is already determined prior to filing of the suit by competent authority, it would be the rent that is to be paid. This aspect can well be illustrated by a example; A tenant despite fixation of rent by the Rent Controller defies to pay the rent so determined and pays the rent only at the old rate.

The question that would arise is whether the rate of rent paid would be the rent last paid which was in utter disregard of law, or the rent which is lawfully payable u/s 15 of the Act. If a narrow construction is attached to the term ''last paid rent'' in the given situation, the same would render the fair rent fixed by the authority (Rent Controller) u/s 5 of the Act, 1982 meaningless. It is a general presumption that none of the provisions in an Act is irrelevant rather every section has been engrafted with a purpose to achieve the object of the Act. While considering a provision, a court would lean in favour of an interpretation which would not render the other provision redundant. An interpretation that protects the interest of those who defy the law is to be avoided. It is equally well settled that a person cannot be permitted to take advantage of one''s own default. The defendant/respondent having not paid rent as fixed by the Rent Controller much prior to filing of the suit, cannot take advantage of his default in not making payment of the rate fixed and insist that the last paid rent is the rent that would be payable u/s 15 of the Act.

The petitioner has rightly referred to the decision reported in case of N.M. Verma Vs. Upendra Narain Singh, as well as a decision of a Division Bench of this High Court in case of Anisur Rahman and Another Vs. Sardar Jogender Singh @ Jogendra Singh ; and Syed Abid Imam Vs. Sharafat Hussain, . In the aforesaid case, the learned Judge after considering the various decisions including the Full Bench decision in case of N.M. Verma Vs. Upendra Narain Singh, , Shri Chiranji Lal Poddar Vs. Messrs Universal Homeopathic Medical College and Hospital and Another, ; Anisur Rahman and Another Vs. Sardar Jogender Singh @ Jogendra Singh , Dr. Sachidanand Sinha Vs. The Collector, Patna and others, and Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, , observed that a fair rent determined by Rent Controller much prior to the institution of the Eviction Suit would be the rate of rent liable to be paid by the tenant u/s 15 of the B.B.C. Act, 1982. Paragraph 16 of the judgment is quoted:--

Having regard to the facts and circumstances of the case and the law discussed hereinabove, I have no hesitation in holding that in an eviction suit if the landlord seeks a decree for eviction on the ground of non-payment of fair rent determined much before the institution of the suit and the said order of fair rent attains its finality, having been affirmed in appeal or in revision and if an application u/s 15 of the Rent Control Act, 1982 is filed then the tenant shall be liable to deposit arrears of rent as also current and future rent at the rate so determined by the Controller.

Thus, I am of the view that where there is dispute regarding rent payable or last paid rent between landlord and tenant de hors fixation of rent by the Rent Controller, it would be the rent last paid as decided by the Full Bench decision of this Court in case of N.M. Verma vs. Upendra Narain Singh (supra); but where the rent has been determined by the competent authority (Rent Controller) under an Act and has attained finality prior to institution of the suit, then there cannot be any dispute regarding the rate of rent payable and as such the rate of rent payable u/s 15 of the Act would be the rate of rent fixed so by the Rent Controller.

In the backdrop of the aforesaid discussions, the order dated 21.2.2009 passed by the trial court rejecting the petition of the petitioner directing the tenant to pay rent at the rate fixed by the House controller much prior to institution of the suit is not sustainable and is set aside. The respondent/defendant would be liable to pay rent fixed by Rent Controller at the rate of Rs. 1,100/- per month u/s 15 of the B.B.C. Act, 1982 with effect from February 2009 as directed by the trial court. The arrears must be paid in six equal monthly instalments. The 1st instalment of arrears must be paid by 15th of June. The current rent would be payable by 15th of subsequent month as observed by the trial court. In the result, the application is allowed.