Prabhu Dayal Rajgarhia v. Dasralh Prasad — 1979 DIGILAW 54 (PAT)

Judgment S. Ali Ahmad, J. 1. This second appeal by the defendant arises out of a suit for his eviction from the suit premises and also for realisation of Rs.720 on account of arrears of rent for the period of three years preceding the filing of the suit. 2. Shortly stated the case of the plaintiff was that the house in question fell exclusively to his share as a result of partition between him and his elder brother Dwarka Prasad. The appellant is a tenant in the suit house on a monthly rental of Rs.25. According to the plaintiff the tenancy commenced from 6th of Shukla Paksh and ended on 5th of Shukla Paksh of the following month according to the Sambat calendar. It is further said that later on an application filed by the defendant-appellant for fixation of fair rent the rent was reduced from Rs.25 per month to Rs.20 per month. The case of the plaintiff further was that he required the premises tor his own occupation, and as such, requested the appellant to vacate the premises but the appellant did not pay any heed to it and also defaulted in paying rent since Jeth Sudi 5,2018 Sambat. On these facts, the plaintiff filed Title Suit No.75 of 1962 for eviction. The suit was ultimately dismissed on the ground that no notice under section 106,of the T. P. Act was served on the defendant determining the tenancy. Thereafter the plaintiff or sent the notice under section 106 of the T. P. Act by registered post on 20th February, 1965 stating that the. tenancy was determined with the expiry chait Sudi, 5, 2022 Sambat and also asked him for payment of arrears of rent amounting to Rs.720. It is said that in spite of this notice, the defendant neither vacated the suit premises nor paid arrears of rent. 3. The defendant-appellant appeared and contested the suit. His defence, inter alia, was that no notice under section 106 of the T. P. Act was served on him. Further according to him, the tenancy was not according to Sambat calendar but was according to English calendar. With regard to the quantum of rent, the plea was that initially the rent of the premises was only Rs.7 which from time to time was raised to Rs.25 per month. Further according to him, the tenancy was not according to Sambat calendar but was according to English calendar. With regard to the quantum of rent, the plea was that initially the rent of the premises was only Rs.7 which from time to time was raised to Rs.25 per month. Further according to him, the plaintiff wanted to raise the rent still higher and so an application was filed for determination of fair rent. As a result of that application, the fair rent was fixed at Rs.20 per month. The allegation that the defendant had defaulted in payment of rent was denied and it was also said that the plaintiff did not require the house for his own personal occupation. 4. The trial court on a consideration of evidence held that although the appellant was a defaulter yet no decree for arrears of rent could be awarded as the amount had been deposited under the provisions of section 11-A of the bihar Buildings (Lease, Rent and Eviction) Control Act. The trial court also held that the plaintiff did not require the house for his own personal occupation and the notice under section 106 of the T. P. Act that was served on the defendant determining the tenancy was not valid. The suit, therefore, was dismissed. 5. The plaintiff-respondent took the matter on appeal the lower appellate court affirmed the finding of the learned Munsif that the defendant-appellant was a defaulter within the meaning of section 11 (l) (d) of Bihar Buildings (Lease, Rent and Eviction) Control Act. It, however, reversed the other two findings of the trial court and held that the plaintiff required the premises for his own personal occupation in good faith and that the notice under section 106 of the T. P. Act was valid and properly served on the defendant appellant. It, therefore, allowed the appeal and decreed the suit for eviction. 6. It, however, reversed the other two findings of the trial court and held that the plaintiff required the premises for his own personal occupation in good faith and that the notice under section 106 of the T. P. Act was valid and properly served on the defendant appellant. It, therefore, allowed the appeal and decreed the suit for eviction. 6. Mr Balbhadra Prasad Singh, learned counsel for the appellant first urged that although on the findings recorded by the court of appeal below, initially the month of tenancy was from 6th Shukla Paksh to 5th of Shukla paksh of the following month according to the Sambat calendar, but on account of the determination of fair rent under section 5 of the Bihar Buildings (Lease, rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act the month of tenancy was altered by operation of law which, according to him, was the English calendar month. According to him therefore, the notice determining the tenancy, according to Sambat calendar was invalid and, as such, the suit for eviction is not maintainable. 7. It is the admitted case of the parties that an order fixing fair rent under section 5 of the Act was passed subsequent to the induction of the appellant as a tenant. I have mentioned earlier that the appellant was a monthly tenant and that the month began on the 6th of Shukla Paksh every month and ended on the 5th of Shukla Paksh of the following month according to Sambat calendar. In view of the argument advanced by Mr. Singh, it has to be seen if the order under section 5 of the Act determining the fair rent also changes the contract between the parties with respect to the mode of tenancy. 8. Section 2 (c) of the Act defines fair rent. According to this definition fair rent means the rent of a building determined or re-determined under sections 5, 6 and 7 of the Act. Sec.5 provides that if a building is in occupation of a tenant then on an application by the landlord and tenant the controller may fix the fair rent in the manner prescribed, in case he has reason to believe that the rent of that building is low or excessive. Sec.5 provides that if a building is in occupation of a tenant then on an application by the landlord and tenant the controller may fix the fair rent in the manner prescribed, in case he has reason to believe that the rent of that building is low or excessive. Sec.6 provides for determination of fair rent of a building not in occupation of a tenant and under section 7 of the Act, fair rent can be re-determined in certain cases. We are not concerned in this case with sections 6 or 7 as admittedly fair rent was fixed while the applicant was in occupation as a tenant. Sec.8 of the Act provides the matter to be considered in determining fair rent. According to sub-section 1 (a) of this section fair rent of a building has to be determined as for tenancy from month to month. Sub-section 1 (b) of the Act says that fair rent of a building in respect of which municipal assessment has been made shall for each month be 1/10th of the month of such assessment. Mr. Balbhadra prasad Singh taking advantage of the expression month to month in sub-section 1 (a) and for each month in sab-section 1 (b) of section 8 submitted that month has not been defined in this Act and that month in the General Clauses Act. means a month according to the English calendar. According to him, therefore, the effect of the order under section 5 of the Act is to alter the month of tenancy according to English calendar if the contract in that respect is other wise. I am not at all impressed by this argument. General Claus s Ac t, no doubt, defines month as one according to English calendar but it is well settled that the General Clauses Act is only an interpretative law and it does not alter laws substantively. The Transfer of Property Act or the Bihar Buildings (Lease, rent and Eviction) Control Act does not provide that the month of tenancy must be according to English calendar. This has been left to the parties and they can enter into an agreement for lease according to English calendar or any other calendar. The Transfer of Property Act or the Bihar Buildings (Lease, rent and Eviction) Control Act does not provide that the month of tenancy must be according to English calendar. This has been left to the parties and they can enter into an agreement for lease according to English calendar or any other calendar. The Bihar Buildings (Lease, Rent and Eviction) Control Act was passed by the Bihar Legislature in the year 1947 at a time when there was shortage of house in urban areas and on account of that the landlords frequently threatened eviction of the tenant with a view to got higher reut. The Legislature in that situation intervened and passed the Act with a view to regulate the letting of building and the rent of such building and to prevent unreasonable eviction of tenant therefrom in the State. The object of the Act, therefore, was to put an end to the exploitation of the tenant by the landlord and with that view provisions restraining the right of the landlord to evict the tenant and to increase the rent ; etc. were made as to whether the tenancy was according to English calendar or a non-English calendar is of no consequence. I cannot conceive of any positive advantage to the tenant if the month of tenancy is converted from non-English calendar to English calendar. Further section 2 (c) of the act which defines fair rent savs that it means the rent of a building determined or re determined under sections 5, 6 or 7. It is significant that it does not say that it shall fix the monthly rent. Likewise section 5 also says that the Controller shall determine fair rent for such building. Here also the section does not say that the fair rent of a building has to be fixed on monthly basis. The expresson month to month and each month, of course, has been used in section 8 (1) (a) and 8 (I) (b) of the Act. But this section release to the matters to be considered in determining fair rent and it certainly does not provide the effect of determination of fair rent under section 5 of the Act For these reasons, in my opinion, the argument of Mr. But this section release to the matters to be considered in determining fair rent and it certainly does not provide the effect of determination of fair rent under section 5 of the Act For these reasons, in my opinion, the argument of Mr. Balbhadra Prasad Singh that the effect of determination under section 5 of the Act is to alter the contract between the parties with respect to the mode of tenancy also is not correct. 9. I may, in this connection, refer a decision of this court in the case of Bimal Kumar Ghosh V/s. Susanta Kumar Bose, (Second Appeal No.360 of 1965 decided on 18.8.1969) by B. D. Singh J,, (as he then was ). Mr. Balbhadra Prasad singh has placed great reliance on this and has urged that the learned Single judge held in that case that the effect of an order passed under section 11-A of the Act was to modify the terms of tenancy according to English calendar month. That is so but the learned Judge in that case construed the order passed under section 11-A of the Act and held that the order meant that irrespective of the agreement between the parties, the defendant was directed to pay rent according to English calendar month. Since the rent was not deposited within 15 days of the English month next following the defence was rightly struck off. It will thus be clear that this decision is not applicable to the fact of this case. 10. Lastly Mr. Singh referred to the decision in the case of Lemon V/s. Lardeur, (1946) 1 K. B. D.613), to support his argument that it is for landlord to establish that the notice is a valid notice and in case that is not done then the action must fail. Mr. Shreenath Singh does not dispute the correctness of this proposition. He, however, contended that the notice was a valid notice and that has been proved by the landlord plaintiff. I think, mr. Shreenath Singh is right. The notice in this case validly determined the tenancy in favour of the appellant and was served more than 15 days before the end of the month of tenancy. I see, therefore, no merit in this argument also. 11. Mr. I think, mr. Shreenath Singh is right. The notice in this case validly determined the tenancy in favour of the appellant and was served more than 15 days before the end of the month of tenancy. I see, therefore, no merit in this argument also. 11. Mr. Balbhadra Prasad Singh, tried to urge that the finding that the notice was, in fact, served on the appellant as found by the lower appellate court is erroneous, According to him, the evidence on this point was not properly appreciated by the court of appeal below. I am afraid this is a pure question of fact and cannot be re-opened in second appeal. This argument also, therefore, fails. 12. In the result, there is no merit in the appeal which is dismissed with costs. Hearing fee Rs.110. Appeal dismissed.