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1981 DIGILAW 159 (PAT)

Sheo Shankar Prasad v. Tara Prasanna Gupta

1981-11-17

HARI LAL AGRAWAL, S.ALI AHMAD

body1981
JUDGMENT : Hari Lal Agrawal, J. 1. This application in revision is by the tenant-defendant, who challanges the ORDER :passed under Section 11A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (hereinafter referred to as 'the Act'), co responding to Section 13 of the 1977 Act, on 8th of May, 1981, by the trial court, on the ground that since the 1977 Act had expired on 31st of March, 1981, the Court below could not pass the ORDER :in question. The relevant facts, briefly stated, are as follows,. On 9th of February, 1974 the title suit in question was instituted in the Court below against the defendant petitioner for his eviction on the ground of default and personal necessity from the suit premises. The petitioner filed his written statement in May, 1975, contesting the suit. The plaintiff filed an application U/s. 11A of Act on 18.12.75 for an ORDER :against, the tenant to pay the arrears as well as the current and future rents in terms of the said provisions. On a plea being taken by the defendant that the provision of the Act was not made applicable to the area where the suit premises was situated, the trial court by its ORDER :dated 8.1.1979, upheld the validity of the said objection and rejected the application under Section 11A of the Act. The additional ground on which the application was rejected was that the 1947 Act itself in the mean time had expired. 2. The matter came to this Court in civil Revision No. 174 of 1979 against the said ORDER :and in view of the fact that the 1977 Act which had come into force with a retrospective effect as well as by agazette notification dated 11th February, 1980, the Civil Lines Police Station of Gaya city was brought under the purview of 1977 Act, the petitioner withdrew his said Civil Revision application on 14.1.1981 perhaps for the purpose of vindicating these points in the trial court itself, although the ground for withdrawal was not specifically mentioned in the ORDER :of withdrawal. It may be mentioned that the notification of 11th February, 1980 was to be deemed to have come into force with effect from the 1st April, 1976. It may be mentioned that the notification of 11th February, 1980 was to be deemed to have come into force with effect from the 1st April, 1976. The saving clause of the 1977 Act also filled up the interregnum by the retrospective operation of the provisions of this Act in between the date of expiry of 1947 Act and coming into force of the 1977 Act (31st August, 1977). On these grounds the landlord made an application on) 8th April, 1981, in the trial court for recalling the earlier ORDER :dated 8.2.1979 and also for appropriate directions to the tenant for paying the arrears as well as the current and future rents. This application of the landlord has been allowed by the court below. 3. The main argument of Mr. Ramakant Verma appearing in support of this application was that in as much as on the 8th May, 1981, the Bihar Building Control Act, 1977 was not in force the court below could not have passed any ORDER :within the purview of the said Act or the preceding 1947 Act. In ORDER :to appreciate this argument, it is necessary to refer to the provisions contained in section (1) of 1977 Act itself which inter alia, deals with its "extent and commencement". Sub-section (3) of Sec. 1 said that it would be deemed to have come into force on the 1st April, 1976 and it would remain in force us to the 31st of March, 198!. Left by itself, the argument of Mr. Verma could be acceptable but a proviso has been added to this Sub-section. Clause (b) of this proviso provided that the expiration of this Act would not- (b) affect any liability incurred under that Act or any punishment incurred in respect of any contravention of that Act or any ORDER :made thereunder; ............ and any such investigation or legal proceeding may be instituted, continued or enforced and any such punishment may be imposed as if that Act had not expired. Thus clause (b) specifically provided that notwithstanding the expiration, any liability incurred under the 1977 Act or any punishment incurred in respect of any contravention thereof as well as any ORDER :made thereunder and any investigation or legal proceeding already instituted was to continue after the expiry of the Act. Thus clause (b) specifically provided that notwithstanding the expiration, any liability incurred under the 1977 Act or any punishment incurred in respect of any contravention thereof as well as any ORDER :made thereunder and any investigation or legal proceeding already instituted was to continue after the expiry of the Act. Under the general law of the Transfer of Property Act a landlord has got very wide right for taking action for eviction of a tenant. The only embargo upon that right is that he must serve a notice under section 106 of that Act. Section 11A of the 1947 Act corresponding to Section 13 of the 1977 Act, however, restricted the rights of landlord to take action for eviction of a tenant unless he incurred liability in that regard in accordance with the contingencies and circumstances provided and mentioned in those provisions. To extract the expression a tenant was 'not liable to eviction therefrom except in execution of a decree passed by the court on one or more of the enumerated grounds in the various clauses of that Section'. It is therefore obvious that liability for eviction from a building could be incurred by a tenant only on the happening of any of the events enumerated in Sections 11 and 12 of the respective Acts. What I mean to emphasis by referring to these sections is that if the liability for eviction was already incurred before the expiration of the 1977 Act giving a right to a landlord to institute a proceeding for eviction and if the same was already instituted while the Act was in force, it was intended by the Legislature that the said proceeding was to continue and enforced notwithstanding the expiration of the Act. 4. The scheme of Section 11A corresponding to Section 13 of the new Act was that a tenant contesting a suit for eviction was bound to pay all the arrears as well as the current and future rents to his landlord if he intended to maintain his defence against his ejectment as laid down in his written statement and accordingly gave a right to the landlords to make an application at any stage of the suit for an ORDER :on the tenant to deposit the rents as above. This court has since authoritatively laid down that a tenant is liable to deposit the arrears of rent from the date of the institution of the suit under the aforesaid provisions. Therefore, the liability to pay the rent from the date of the institution of the suit by a defaulting tenant was contemplated under Section 11A and Section 13 of the 1947 and 1977 Acts respectively. 5. The expiration of the Act, therefore, may give rise to as we can contemplate, must have given rise to a large number of case where a landlord had already made an application under Section 13 of the 1977 Act before it bad expired i.e. before 31st March, 81, but no ORDER :s on that application could be made while the Act was in force, as well as the cases where the application was made after the expiration of the Act. In the case before us, however, we are concerned only with the first situation namely where the application had already been made and was pending ORDER :s at the time when the Act was in force but no ORDER :s could be made. It is well known that on such application being made by the landlord the tenant resists the claim on various grounds and the moment this situation cropped up the court was called upon to decide the controversy and this necessitated an investigation of the controversy between the landlord and the tenant. In my considered opinion, clause (b) of Sub-section (3) of Sec. 1 of the 19/7 Act in unmistakable language and in a very clear and obvious terms saves the investigation or proceeding whatsoever from being lapsed. The inquiry in this regard or investigation whatever it may be called to be continued. Once this view is taken, it follows as a matter of course that with the conclusion of the investigation or enquiry, the court has to pass the final Older under the relevant provisions, in this case, under Section 13 of the 1977 Act. The passing of the ORDER :after the expiry of the Act being contemplated by the Legislature, such ORDER :s must be held to be legal, binding and with jurisdiction. The ORDER :in question dated 8th May, 1981, although having been passed alter the expiry; must be held to be a valid and binding ORDER :. 6. The passing of the ORDER :after the expiry of the Act being contemplated by the Legislature, such ORDER :s must be held to be legal, binding and with jurisdiction. The ORDER :in question dated 8th May, 1981, although having been passed alter the expiry; must be held to be a valid and binding ORDER :. 6. However, before parting with this case I must notice the argument advanced by Mr. Verma in ORDER :to wriggle out from this situation. The argument was that the application filed under the 1947 Act hating already been disposed of by the Court below, it had no jurisdiction to recall the said ORDER :on the basis of the application filed on 28.4.1981 wherein a prayer was made for issuance of fresh directions under Section 13 of the 1977 Act after recalling the said ORDER :and the said application of 29.4.1981 must be deemed to be a new application when the law in that regard was in force. This argument must be rejected for the simple reason that the earlier ORDER :of the court below dated 8.1.1979 was suffering from an apparent error on its face. However, in any view of the matter the grounds on which the prayer on the earlier occasion was rejected had become non est on account of the subsequent notification dated 11th February, 1980 bringing the area in question within the purview of the Act. as well as the 1977 Act having been given retrospective effect, thus covering the period of vaccum between the expiry of the 194/ Act and the passing of the 1977 Act. In these circumstances the ORDER :dated 8.1.1979 deserved to be recalled and the obvious result that was to follow on recall of the ORDER :was that the application filed on 18.12.1975 under Section 11A of the 1947 Act revived and became pending for its fresh disposal in accordance with law. The case in hand does not call for the consideration of the second type of cases where application might have been filed under Section 13 of the 1977 Act after its expiry. In the present case it must be held that such an application which was then pending having been filed earlier where disposal, of course, took place after the Act had expired. In the present case it must be held that such an application which was then pending having been filed earlier where disposal, of course, took place after the Act had expired. I may refer in this connection to a Bench decision of this Court in the case of Ahmad Raza Khan v. Bhola Pd. 1979 PLJB 362 ( AIR 1979 Pat 222 ) where one of the question that fell for consideration was as to whether a suit instituted under the 1947 Act could be continued after it; expiry under the 1977 Act. It was held that if any liability had been incurred or legal proceeding had been instituted between the expiry of the 1947 Act and the commencement of the 1977 Act, the liability shall not be affected and the legal proceeding shall be continued by virtue of the proviso to sub-section (3) of Section 1 of the 1947 Act read with Subsection (3) of Section 1 and clause (b) and (c) of the Second provision thereto under the 1977 Act. Taking aid from this decision the application filed under section 11A of the 1947 Act could be legally disposed of under the provision of the 1947 Act itself. The court below, therefore, in passing an ORDER :under section HA of the 1947 Act on 8th May, 1981, has committed no error of jurisdiction. I, therefore, do not find any merit in the application and it is accordingly dismissed, but in as much as the operation of the impugned ORDER :was stayed by this Court at the time of admission of the application, the petitioner must be given a fresh time for making the deposit. I shall accordingly direct him to pay all the arrears of rent in terms of the trial court ORDER :including the arrears which have since mounted, i.e. till the month of October, 1981, within 15 days from today and all the current and future rents by the 15th day of the each succeeding month in terms of section 11A of the 1947 Act, failing which the petitioner's defence against ejectment shall stand rejected. In the circumstances, I shall make no ORDER :as to costs. The trial court is also directed to dispose of the suit with all possible speed as it has remained pending since a long time. Let the lower court records be sent back at once. Application dismissed