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1980 DIGILAW 251 (PAT)

Ganga Sao v. Bishwanath Gupta

1980-12-23

CHAUDHARY SIA SARAN SINHA

body1980
Judgment 1. This is a defendants second appeal against the judgment of affirmance, passed in appeal by the learned 5th Additional District Judge, Monghyr arising out of a suit for eviction filed by the respondents against the appellant in respect of demised premises described in schedule 1 to the plaint. 2. The appellant was a tenant as a Kirayedar in the premises in suit on a monthly rental of Rs. 32.00 according to the Bangla calendar month. While the appellant was in possession of the demised premises it was purchased by the plaintiffs. Even after this purchase defendant-appellant continued to be a Kirayedar of the suit premises under the plaintiffs on a monthly rental of Rs. 32.00. The terms of the tenancy not having been altered after the purchase by the plaintiffs, the tenancy, undisputedly, continued to be according to Bangla calendar month. 3. In the year 1962 the plaintiffs instituted Title suit No. 102 of 1962 for eviction of the appellant under the provisions of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). The eviction was sought on the ground of default in payment of rent. There was an order by the Court where the suit was pending u/s. 11-A of the Act, directing the appellant to deposit rent falling due according to the English calendar month. The suit was dismissed by the trial Court and the decree for dismissal was maintained in appeal by judgment dated 19.07.1970. 4. The plaintiffs alleged in the plaint that the order of the Court u/s. 11-A of the Act to deposit rent according to English calendar month was accepted by both the parties and the defendant-appellant also paid rent according to the English calendar month, obviously for the period prior to 1.07.1968, arrears of rent having been claimed in the instant suit for the period from 1.07.1968 to 31.12.1969. This allegation was denied by the defendant-appellant. 5. Subsequent default in payment of rent, breach of the terms of the tenancy as also personal necessity led the plaintiffs to serve a notice u/s. 106 of the Transfer of Property Act upon the appellant directing him to vacate the premises by 31.12.1968 obviously treating the tenancy according to English calendar month. The appellant did not vacate and the plaintiffs instituted the instant suit for eviction as also for arrears of rent. 6. The appellant did not vacate and the plaintiffs instituted the instant suit for eviction as also for arrears of rent. 6. The ground of personal necessity was negatived by the two courts below. Both the two Courts below, however, decreed the plaintiffs suit for eviction on two grounds namely, breach in the terms of the tenancy by induction of defendant No. 2 in the premises in question by the appellant as also on account of default in payment of rent for the period from 1.07.1968 to 31.12.1969, regarding which decree for arrears of rent was also passed. This is what has led the appellant to come to this Court in second appeal. 7. In order No. 7 dated 9-8-1979 a learned single Judge of this Court, while admitting this second appeal, formulated two points, one, relating to the validity of the notice u/s. 106 of Transfer of Property Act and the other, as to the nature of the tenancy having changed on account of the order u/s. 11-A in the earlier suit for payment of rent according to the English calendar. In view of the decision of the Supreme Court reported in AIR 1979 SC 1745 (V. Dhanapal Chettiar V/s. Yesodai Ammal) learned counsel for the appellant did not press point No. 1 formulated in order No. 7 dated 9-8-1979. Rather he conceded that an eviction can be ordered in appropriate circumstances even without a notice u/s. 106 T.P. Act. His contention was that the order of the Court in the earlier suit passed under S.11-A of the Act cannot change the tenancy from that according to the Bangla calendar month to English calendar month and the plaintiffs having demanded termination of the tenancy according to the English calendar month he was liable to be non-suited Sri R.K. Verma, learned counsel for the respondents resisted this contention of the learned counsel for the appellant. 8. The appellant was in the disputed premises from before its purchase by the plaintiffs on a monthly rental of Rupees 32.00 according to the Bangala calendar month. It is undisputed that the appellant continued as a tenant on the same terms even after the plaintiffs purchased the premises in question. Thus, the terms of tenancy between the plaintiffs and the defendant-appellant was according to the Bangla calendar month. It is undisputed that the appellant continued as a tenant on the same terms even after the plaintiffs purchased the premises in question. Thus, the terms of tenancy between the plaintiffs and the defendant-appellant was according to the Bangla calendar month. The plaintiffs set up a case without specifically raising the question of novation of contract, that the orders of the Court passed u/s. 11-A in the earlier suit regarding payment of rent according to the English calendar month was accepted by both the parties and the defendant-appellant sent rent by money order to the plaintiffs according to the English calendar month. This change of tenancy on account of the order under Sec.11-A of the Act was disputed by the defendant. No issue was framed by the trial Court regarding this change of tenancy or so to say, the novation of the contract. The lower appellate Court while observing that there was no agreement between the parties for change of the terms of tenancy held that the conduct of the parties clearly proved that the tenancy changed from Bangla calendar month to the English calendar month since after the orders of the Court in the earlier suit u/s. 11-A of the Act. The terms of the tenancy between the plaintiffs and the defendant-appellant after purchase of the premises in question by the former had, undisputedly been settled as per agreement between them namely that the tenancy shall be as per Bangla calendar month. Obviously no fresh agreement between the parties was arrived at for introducing any change in the tenancy. When the terms of an agreement reached between the parties are sought to be novated a fresh agreement is necessary and unless suchan agreement can be conclusively proved by conduct of the parties, no such novation should be presumed. The only conduct on the part of the defendant appellant noticed by the lower appellate Court was his action in paying rent for the period prior to 1.07.1968 during the pendency of the earlier litigation, it having terminated on 19.07.1970 when the appeal stood disposed of obviously the defendant did so as per orders of the Court. 9. Sec.12 of the Act was enacted for a particular and specified purpose namely, deposit of rent by tenant in a suit for ejectment. Obviously it was intended to ensure payment of rent by the defendant during the pendency of the litigation. 9. Sec.12 of the Act was enacted for a particular and specified purpose namely, deposit of rent by tenant in a suit for ejectment. Obviously it was intended to ensure payment of rent by the defendant during the pendency of the litigation. It was not the intention behind Sec. 13 of the Act to create a new agreement between the parties by any statutory fiction or order. In such a situation, the order of the Court in the earlier suit u/s. 11-A directing deposit of rent according to English calendar month cannot have the effect of change in the nature of tenancy, nor the solitary conduct of the defendant appellant in sending the rent by money order according to the English calendar month after the above order of the Court, obviously passed by mistake and without the consent of the parties, can give rise to any novation of the contract. In such a situation, the finding of the lower appellate Court without any issue about the tenancy having changed from Bangla calendar month to English calendar month is not supportable in law. 10. Question is whether this by itself will disentitle the plaintiffs to a decree for eviction. Decree for eviction was sought on ground of default in payment of rent for a long period namely, from 1.07.1968 to 31.12.1969. This default was obviously for a period of more than two months whether considered according to Bangla or English calendar month. Eviction was also sought for on the ground of breach of terms of the tenancy by induction of defendant No. 2 by defendant No. 1 on the demised premises without the consent or approval of the plaintiffs. These two points were decided in favour of the Plaintiffs by the two Courts below and those findings, duly recorded on a proper consideration of the eviction, are binding on this Court.Thus, the defendant appellant clearly brought himself by his own action within the mischief of Sec. 11 of the Act making himself liable for eviction as per the provisions thereof. If the plaintiffs were entitled to a decree for eviction on the grounds alleged and proved,they cannot be non-suited merely by demanding termination of the tenancy according to English calendar month in-stead of Bangla calendar month. The purpose for which a notice u/s. 106 of the Transfer of Property Act is served is well known. If the plaintiffs were entitled to a decree for eviction on the grounds alleged and proved,they cannot be non-suited merely by demanding termination of the tenancy according to English calendar month in-stead of Bangla calendar month. The purpose for which a notice u/s. 106 of the Transfer of Property Act is served is well known. In order to obtain a decree or order for eviction against a tenant under any Rent Control Act, it is not necessary to give notice u/s. 106 T.P. Act. This is the recent pronouncement of the Supreme Court in AIR 1979 SC 1745 (supra). Their Lordships held that termination of a lease in accordance with the T.P. Act is unnecessary and a mere surplusage because a landlord cannot get eviction of the tenant even after such termination. The tenant continues to be so even thereafter. That being so, his Lordship further observed that making out a case under the rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Sec. 106 of the T.P. Act. In such a situation, the action of the plaintiffs in giving the notice to the defendant was merely a surplusage and nothing more than that and the mention of English calendar month in the said notice instead of Bangla calendar month cannot disentitle the plaintiffs to a decree for eviction, if they are otherwise entitled to it in accordance with law. This contention of the learned counsel for the appellant has, therefore,no merit and it must fail. 11. It would, thus appear that there is no merit in this appeal, which must fail and is accordingly dismissed. The period of two months mentioned in the order portion of judgment of the trial Court will commence from the date of judgment of this Court. The judgment and decree of the Courts below, with the modification, as stated above, are hereby confirmed. In the circumstances of this case, however, there shall be no order for costs of the second appeal and the parties shall bear their own costs.