Sitabohand Jain v. Shyam Narain Barai — 1984 DIGILAW 320 (PAT)

JUDGMENT : Prabha Shanker Mishra, J. - This appeal has to be disposed of on a short point-whether remittance of rent by money ORDER :in the event of refusal to accept by the landlord each month should be the rent of the month in question or the amount in arrears untill the remittance. 2. The plaintiffs-respondents are the purchasers of a portion of the house bearing Holding no. 237 of Ward no. 9 known as 'Maharaja building', situate at Chitratoli Road, Arrah, through a registered sale deed dated 7th August, 1971 from Maharaja Kamal Singh of Dumraon. A registered notice of the said purchase was sent by him to the defendant who has been a tenant in the said house intimating about the purchase, which was received by the defendant on 17th September, 1971. The defendant did not pay rent to the plaintiffs since after the purchase by them. The rent of the premises has been Rs. 40/- per month. When (he defendant defaulted in payment of rent for more than two months, and thus became liable to be evicted under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 the plaintiffs instituted the suit for eviction as also for arrears of rent. Before instituting the suit, notice under Section 106 of the Bihar Tenancy Act determining the tenancy (although it was not necessary) was served upon the defendant by the plaintiffs asking him to vacate the premises by the 31st of August, 1972. The defendant replied to the said notice alleging that he had tendered the rent and also sent the rent through money ORDER :. 3. In the written statement, the defendant questioned the validity of the purchase by the plaintiffs and denied the relationship of landlord and tenant. He also stated that he had been tendering rent to the plaintiffs after 7th August, 1971 and before that he had paid rent to Maharaja Kamal Singh. He stated that when the plaintiffs refused to accept rent, he remitted rent through money ORDER :, but they refused to accept the rent sent by money ORDER :, as well. 4. He also stated that he had been tendering rent to the plaintiffs after 7th August, 1971 and before that he had paid rent to Maharaja Kamal Singh. He stated that when the plaintiffs refused to accept rent, he remitted rent through money ORDER :, but they refused to accept the rent sent by money ORDER :, as well. 4. Both the courts below have found that the plaintiffs acquired valid title by virtue of their purchase from Maharaja Kamal Singh of Dumraon, under the sale-deed dated 7th August, 1971, and, accordingly, they have held that there has been a relationship of landlord and tenant between the plaintiffs on the one hand and the defendant on the other hand. 5. The learned Munsif (the trial court), however, accepted the defendant's case that he had paid rent to the transferor of the plaintiffs in the past and tendered rent to the plaintiffs after he received the notice, but they refused to accept the rent, and, accordingly, he remitted rent by money ORDER :, but the rent remitted by money ORDER :also was not accepted by the plaintiffs. In view of the provisions under Section 13 (1) of the Act, the learned Munsif however, held that the defendant had not defaulted in payment of rent, and, accordingly, dismissed the suit. 6. On the plaintiffs' appeal, which was eventually heard by the First Additional District Judge, Arrah, the court placed reliance upon a decision of this Court in Rajendra Mohan Ghosh v. Smt. Kaushalla Devi (A.I.R. 1978 Patna 292) to hold that the remittance of rent of each month was not enough, as the amount of rent due had to be remitted to cover the arrears as well as rent of each month. Accordingly, holding that the defendant had defaulted in payment of rent, the learned Additional District Judge allowed the appeal and decreed the suit for eviction. It may, be pointed out that the suit for arrears of rent was decreed by the trial court, but no appeal was preferred by the defendant against the said decree. 7. A full bench of this Court in Raj Kumar Prasad Y. Uchit Narain Singh (A.I.R. 1980 Patna : 1980 PLJR 195 ) has interpreted Section 13 (1) of the Act and over-ruled the decision in the case of Rajendra Mohan Ghosh (Supra). 7. A full bench of this Court in Raj Kumar Prasad Y. Uchit Narain Singh (A.I.R. 1980 Patna : 1980 PLJR 195 ) has interpreted Section 13 (1) of the Act and over-ruled the decision in the case of Rajendra Mohan Ghosh (Supra). S. K. Jha, J. speaking for the Court has said : "With great respect to the learned Judges deciding that case, I am constrained to hold that that case has not been correctly decided and has not laid down the correct legal position under our Rent Act, in so far as it has held that there cannot be a valid payment of rent unless the remittance is of the full amount of rent in arrears on every occasion and in every month in which such remittance is made. The language of Section 13 (1) of our Rent Act is so clear and unambiguous that I cannot persuade myself to agree with the view of the learned Judges deciding that case. I have already quoted the language of Section 13 (1) above which says that on refusal by the landlord to accept any rent lawfully payable to him by the tenant, the tenant is liable to remit such rent and continue to remit any subsequent rent which becomes due in respect of such building by postal money ORDER :to the landlord. What is required of the tenant is to remit, in the first instance, such rent as has been refused to be accepted by the landlord and any subsequent remittance by postal money ORDER :has to be with regard to any subsequent rent which becomes due. The subsequent rent, which becomes due, cannot in my view, embrace within its sweep all such arrears of rent as may have accrued due till the time of such remittance. The subsequent rent which becomes due is the rent month by month and, therefore, cannot include cumulatively all rent which has thereto before fallen due". In view of what has been held by the Full Bench, it is obvious that the learned Additional District Judge has fallen in error of law. He has erred in holding that the defendant defaulted in payment of rent because he did not send the total amount of arrears including the rent of the month concerned by money ORDER :, if the defendant was acting under Section 13 (1) of the Act. 8. He has erred in holding that the defendant defaulted in payment of rent because he did not send the total amount of arrears including the rent of the month concerned by money ORDER :, if the defendant was acting under Section 13 (1) of the Act. 8. The JUDGMENT : of the learned Additional District Judge, therefore, has to be set aside on this ground alone. 9. Mr. Mustafi, learned Counsel for the plaintiffs-respondents has, however submitted that the plaintiffs had filed an application for amendment of the plaint to include a ground of personal necessity in the plaint, but the trial court wrongly rejected the said application. The plaintiffs have filed an application in this Court for amendment of the plaint to include the ground of personal necessity in the plaint and thus to seek adjudication on this issue of personal necessity also. He has submitted that the ground of personal necessity is not any fresh or new cause of action, because, in any event, according to him, the new ground of personal necessity does not change the nature of the suit. Such amendment is not one which should have been refused by the trial court. This Court, therefore can rectify the wrong done by directing the amendment to be made and, accordingly, retrial of the suit. Mr. Mustafi has drawn my attention to a decision of this Court in Annapurna Agrawal & others vs. Jitendra Kumar Sinha and another (A.I.R. 1984 Patna 215 : 1984 PLJR 395 ). Considering the case of amendment of plaint in a civil revision application, A. K. Sinha, J., has observed:- "It is well settled that even if new facts are introduced but if those facts do not change the character of the suit the amendment should be allowed. The test is whether new assertion a new cause of action and foreign to the scope of the suit, changes the entire complexion of the suit. If it does, then the amendment cannot be allowed." True, 'the existence of one or more of the grounds mentioned in the Act for eviction of the tenant does not constitute a necessary part of the cause of action in a suit for eviction of the tenant. If it does, then the amendment cannot be allowed." True, 'the existence of one or more of the grounds mentioned in the Act for eviction of the tenant does not constitute a necessary part of the cause of action in a suit for eviction of the tenant. A cause of action in a suit under the Act for eviction of the tenant is certainly an accrual of a disability against the tenant pertaining to the grounds mentioned for eviction due to his conduct of laches, thus disentitling the tenant from the protection against his eviction', and 'a ground on which the suit for eviction was not initially instituted, but if that ground being a ground for eviction under the Act becomes available to the landlord during the suit, can be allowed to be taken by the landlord even at a later stage and the landlord can legally ask the Court to allow amendment of the plaint taking into account the subsequent event after the institution of the suit and can legally press into service for the relief of eviction of the tenant on that ground. But in the instant case, the facts are somewhat distinguishable. The suit has been tried in full, but the question as to the title has been decided in favour of the plaintiffs. The question as to default in payment of rent has, however, to be decided in favour of the defendant in view of the Full Bench JUDGMENT : of this Court. If the amendment is allowed at this stage, it shall mean only remitting the case to the trial court for hearing the parties on the issue of personal necessity. The plaintiffs-respondents if they so desire to move against the defendant-tenant for eviction on the ground of personal necessity, can do so even separately. Under the new Act [Bihar Buildings (Lease, Rent & Eviction) Control Act, 1983], a plaintiff genuinely needing a house for personal necessity can evict a tenant by the special procedure for disposal of cases for eviction on account of bona fide requirement as envisaged under Section 14 of the new Act. No useful purpose will be served by allowing the amendment at this stage and remanding the case for retrial only on question of personal necessity. 10. Mr. No useful purpose will be served by allowing the amendment at this stage and remanding the case for retrial only on question of personal necessity. 10. Mr. Mustafi has, however, though feebly, contended that the finding on default in the payment of rent by the defendant-appellant by the learned Additional District Judge can be supported on another ground also. The defendant as a tenant before taking recourse to Section 13 (1) of the 1947 Act, which is Similar to Section 19 (i) of the 1983 Act, is required to show that there has been a remittance and refusal of rent by the landlord. He has submitted that the defendant, on his own case, sent by the money ORDER :on 14th October, 1971 the rent for the months of August and September, 1971. Thus, according to him, he did not send rent each month and money ORDER :as required under Section 13 (1). He has also submitted that tendering of rent and refusal by the landlord has to be proved before it is alleged that the recourse was taken to money ORDER :for remitting rent to the landlord. In support of his contention in this regard he has placed reliance upon a JUDGMENT : of C.S.S. Sinha, J., in the case of Messrs Bharat Roadways and another v. Shaileadra Kumar Birla (1984 Bihar Bar Council Journal 97) (: 1984 PLJR (NOC) 49). It is observed in the said case : "...If the tenant wants to take advantage of the provisions of section 19 of the Act, he has to come squarely within the four corners of that section which necessitates that before the tenant sends the rent by postal money ORDER :, there must be a refusal by the landlord to accept the rent earlier to the sending of the rent by money ORDER :s. The refusal of the plaintiff to accept the money ORDER :, may be a refusal within the meaning of this term as used in sub-section (1) of section 19 of the Act, but if the tenant wants to take advantage of the advantage of sub-section (i) of Section 19 of the Act, he shall be required to remit that rent by money ORDER :again. This has not been done in the instant case. This has not been done in the instant case. In such a situation, the sending of the rent for January, 1976 under the money ORDER :coupon cannot be regarded, as a valid remittance of rent under the provisions of sub-section (1) of Section 19 of the Act and in the eye of law the tenant will be deemed to be in arrears of rent for the month of January, 1976." With respect I fail to understand how these observations can be applied in the facts of the instant case. Under Section 11 of the Act, amount of two month's rent will not be deemed to be due or to be in arrears, if it has been paid in time or remitted or deposited in accordance with Section 13 (1) of the Act. Rent for the month of August, 1971, was tendered by the defendant to the plaintiffs, but they declined to accept the said rent tendered to them. The defendant on 14th October, 1971 remitted by money ORDER :the rent for the month of August, 1971 as also for the month of August, 1971, was tendered by money ORDER :within two months of the same falling in arrear. Such a tender of rent in view of the provision 13 (1) is a valid tender. In the case before C.S.S. Sinha, J. admittedly the rent far the month of January, 1976 had not been tendered at all. In the month of February, 1976 rent for the month of February, 1976, alone was remitted by money ORDER :. On the facts of that case one can take a view as taken by C. S. S. Sinha, J, but it is difficult to apply the ratio of the said case to the facts of the instant case. 11. In the result, the appeal is allowed and the JUDGMENT : and the decree of the First Additional District Judge, Arrah in Title Appeals 41 of 1977 are hereby set aside and that of the Additional Munsif, Arrah in Title Snit no. 120/136 of 1972/1976 are affirmed. On the facts of this case, however, there shall be no ORDER :as to costs.