Jai Govind Singh v. Rameshwar Prasad Singh — 1985 DIGILAW 301 (PAT)

JUDGMENT : Satya Brata Sanyal, J. - This second appeal arises out of a suit for eviction under the Bihar Buildings, (Lease, Rent and Eviction) Control Act. The appeal is by the defendant tenant. At the time of admission two substantial questions of law were framed, namely, (1) "Whether the adjustment of municipal tax paid by the defendant on 5.9.1980 towards arrears of rent would save the defendant from being a defaulter even though rent from 1.1.1980 to 31.7.1980 had become payable before that ?" (2) "Whether the courts below were justified in adjusting the municipal tax paid by the defendant even towards the rent• payable for the period 1.1.1978 to 21. 12.1979 if he had become a defaulter ?" It appears that at the time of admission certain additional evidence was sought to be permitted and the admitting Court ORDER :ed" The request of the appellant for taking additional evidence will be considered at the time of hearing. " 2. Facts : The suit relates 'to holding nos. 73 and 73A, Circle No. 244, Ward No. 33 of the Patna Municipal Corporation situated in Mohalla South Mandiri. It is said that the suit holdings belonged to the joint family of Moti Sao and his sons and in a suit for partition, which was decreed on 21st 'December. 1979, the said holdings fell to the share of the plaintiff. The defendant was a tenant since the year, 1940 of holding no. 73 which comprises two rooms of the ground-floor with a courtyard and verandah and one room in the back' side and one room with stairs and open terrace in the first floor. The fair rent of the tenanted premises came to be fixed at Rs. 28.09p. in B. B. C. No. 160 of 1966. It is said that rent was paid up to December 1977 but the tenant failed to pay rent from January 1978 till the date of the institution of the suit on 9th September, 1980, Thus he is a defaulter within the meaning of the Act. It was further averred that the plaintiff required the suit property bona fide, reasonably and in good faith. The suit was instituted after service of notice under section 106 of the Transfer of Property Act. The plaintiff claimed eviction, a decree for Rs. 953.88 being the arrears of rent and any other relief. It was further averred that the plaintiff required the suit property bona fide, reasonably and in good faith. The suit was instituted after service of notice under section 106 of the Transfer of Property Act. The plaintiff claimed eviction, a decree for Rs. 953.88 being the arrears of rent and any other relief. The defendant, on the other, hand, submitted that he is a tenant of the disputed premises since 1940 and he was, inducted on a rental of Rs. 10/- per month but ultimately fair rent was fixed to subserve the greed of the landlord. The method of payment of rent used to be lump-sum. In ORDER :to harass the defendant the plaintiff stopped paying municipal tax for the building in question and thus a huge arrear towards municipal tax was created. On retirement from service in 1960 from Miller School the plaintiff lives mostly in the village home and his son Ramesh Sharma occupies the house. On service of notice under section 223 of the Patna Municipal Corporation Act demanding the arrears due, this defendant deposited Rs. 346.50 on 3.12.76, Rs. 255/- on 5.9.80 and Rs. 2551- on 9.9.80, that is a total sum of Rs. 856.50, towards arrears of municipal tax. Over and above that, he spent a sum of Rs. 665/- for installing a hand pipe. It is further asserted that the rent of the building till October 1978 had been paid to 'Moti Sao. The partition was denied and personal necessity was sought to be mala fide alleged since the plaintiff has more than ten houses within the Patna Municipal Corporation. 3. The trial court held that the defendant is not entitled to get the cost for the hand pipe fitted nor is he -entitled to adjust the same towards rent. It further held that the plaintiff is entitled to receive rent from 21.12.79 and the municipal tax paid by the defendant covers the rent of the suit house till April 1981. The relationship of landlord and tenant came to exist between the parties from 21.12.79 and that the defendant is not a defaulter in the payment of rent. If further held that the plaintiff is in need of the suit house for his personal use and occupation bona fide and in good faith. The suit was accordingly decreed directing the defendant to vacate the house. If further held that the plaintiff is in need of the suit house for his personal use and occupation bona fide and in good faith. The suit was accordingly decreed directing the defendant to vacate the house. 4 On defendant's appeal, the finding of the learned Munsif that the plaintiff requires the "house in question reasonably and in good faith was affirmed after taking into consideration that the family of the plaintiff consist of six sons, four daughters, two daughter-in-laws, five grand - daughters and two grandsons. The appellate court held that the defendant did not make any payment of rent from January 1978 till the date of the institution of the suit. On the question of adjustment the court of appeal below held that on 3.12.78 when the deposit of Rs. 346.50 towards municipal tax was mad the defendant had already defaulted in making payment of rent for eight months. Even though the defendant is entitled to death municipal tax,' this does not save the default prior to the deposit of municipal tax which renders him liable to be evicted. The appellate court, however, gave adjustment of the entire deposit of municipal tax, that is Rs. 856.50/- against the claim for arrears and thus rent to the extent of Rs. 42.30 was decreed. 5. Mr. A. N. Sahay learned counsel for the appellant at the outset wanted me to consider the additional evidence relying upon the decision of the Supreme Court in tile case of M.M. Quasim v. Manohar Lal Sharma (A.I.R. 1981 Supreme Court 1113) that the need must be in existence on the date the eviction is ultimately ORDER :ed on the ground of personal necessity. Learned counsel argued that if the additional evidence is taken,' which is in the nature of court papers, it would show that the respondent has got possession of another portion of the house, which was let out to 'one Bindeshwari Thakur, in execution of an eviction proceeding taken against the said Bindeshwari Thakur as early as 3.6.84 which comprises five' rooms in the ground floor, two rooms and one hall in the first floor. If this space is taken into consideration then the plaintiffs bona fide need and personal necessity so far as the disputed part of holding no. 73 is concerned fail. His second submission is that the plaintiff became the landlord of the premises from 21.12.79. If this space is taken into consideration then the plaintiffs bona fide need and personal necessity so far as the disputed part of holding no. 73 is concerned fail. His second submission is that the plaintiff became the landlord of the premises from 21.12.79. The deposits of municipal tax made on 5.9.80 and 9.9.80 on its adjustment under section 9(2) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1977 completely washes away the default. Therefore, on the date when the suit was instituted there was no arrear whatsoever and thus no cause of action under section 12(1)(d) of the said Act viz., two months' rent lawfully payable not having been validly remitted or deposited in accordance with section 16 of the Act. Learned counsel alternatively submitted that his client is also entitled to the adjustment of Rs. 346.50 which was by way of municipal tax for the third and fourth quarters of 1974•75 and the first quarter of 1975-76 deposited on 3.12.78 towards the payability of rent accruing therefore, which is more than twelve month's rent towards the rent payable since the plaintiff became the landlord of the house on 21.12. 79 and if that is taken into account and adjusted month by month from 21.12.79, then also the defendant cannot be held to be a defaulter. In short, learned counsel states that if the sum of Rs. 346.50 is taken into consideration for adjustment towards future rent payable by the tenant to the landlord plaintiff, his client is not a defaulter. The defendant will also not be a defaulter if the deposits made on 5.9.80 and 9.9.80 are taken into consideration and allowed to be adjusted backward for the period the rent was payable to the• plaintiff by the defendant from 21.12.79 to the date of the institution of the suit. According to learned counsel for the appellant there is an automatic adjustment of rent by the mandate of section 9(2) and for maintaining a suit for default the tenant must be owing two months' rent lawfully payable which in the instant case is totally absent. Learned counsel also submitted that in construing section 9 (2) the provisions of the Patna Municipal Corporation Act cannot be resorted to, the Building Act being a complete Act in itself. 6. Mr. Learned counsel also submitted that in construing section 9 (2) the provisions of the Patna Municipal Corporation Act cannot be resorted to, the Building Act being a complete Act in itself. 6. Mr. S.C. Ghose, learned counsel appearing for the plaintiff respondent, on the other hand, contended that in view of the substantial questions of law framed there is no need of going into the question of personal necessity. The Court, therefore, is required to consider whether there has been a default within the meaning of section 12(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act. According to learned counsel rent recoverable and/or due to the landlord from the tenant is not identical with the concept of default within the meaning of section 12 (1) (d) of the Act. Even if the tenant pays the entire dues prior to the institution of the suit that will not sub serve the requirement of section 12(1)(d) because the provision of the Buildings Act very clearly lays down that the cause of action arises when the tenant defaults in the payment of two months' rent lawfully payable within the time fixed under the statute entitling the landlord to recover the tenanted premises for the said cause of action. In support of his submission learned counsel relied upon a Division Bench decision of this Court in the case of Hardwari Lal v. Most. Nandraoi (1977 B. B.C.J 678) where it was held that even if rent is subsequently accepted by the landlord that will not amount to waiver of default in the• payment of rent as envisaged under section 12 (1) (d) of the Act. Mr. Ghose further contended that section 9 (2) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 is a subsequent legislation to that of the Patna Municipal Act or the Patna Municipal Corporation Act. 'therefore, for the purpose of payability of municipal tax by the tenant, provisions of section 223 of the Patna Municipal Corporation Act can be looked into and the said section clearly states that if the Corporation realises the municipal tax from the occupier for the time being of such holding he (the tenant) may deduct from the next and following payments of his rent the amount which may be so paid by or recovered from him. In support of this point of view learned counsel referred to a decision of this court in the case of Ram Lakhan Chaddhary v. Raj Narayan Sah (1976 B.B.C.J. 626 : 1976 PLJR (NUC) viii) as well as to a Full Bench decision of this Court in the case of Niranjan Pal v. Chaitanya Lal Ghose (1964 B.L.J.R. 583 F.B.) 7. For appreciating the' rival arguments of learned counsel on the question of default and right of adjustment, I would first like to extract the provisions of section 9 (2) and section 12(1)(d) of the Bihar Buildings (Lease, Rent and Eviction), Control Act, 1977 and of section 223 of the Patna Municipal. Corporation Act, 1951: "9(2). Where the tenant has to pay municipal rates, taxes or cesses payable by the landlord because of the default of the' landlord to meet those charges, the tenant shall be entitled to recover the same from the landlord by adjustment towards the rent payable by him or as if the amount paid by him Were a debt due to him by the landlord. "12(1). Not with standing anything contained in any contract or law to the contrary but subject to the provisions of, the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of section 15, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds :,- * * * (d) where the amount of two months' rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence at' such contract by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16. "223. "223. If the sum due from the owner of any holding remains, unpaid after the notice of demand has been duly served, and such 'owner is not resident, within the Corporation, or the place of abode of such owner is unknown, the same may be recoverable from the occupier for the time being of such holding, who may deduct from the next and following payments of his rent the amount which may be so paid by or recovered from him: Provided that no, arrear of tax which has remained due from the owner of any holding for more them one year shall be so recovered from the occupier thereof." Section 9(2) permits adjustment of the municipal tax towards rent payable by the tenant if the landlord defaults in the payment of municipal tax. It may be borne in mind that the deposits made in September 1980 for municipal tax relate to municipal tax for the entire period of 1977-78. Therefore, it remained due from the owner for more than one year. As such, under the mandate of section 223 of the Patna Municipal Corporation Act it was recoverable from the occupier. Mr. Sahay, therefore, is correct that it was not a gratuitous deposit on the, part of the tenant but under the mandate of section 223 he had to do so. Let us now see what is the real purport of the words appearing in section 9(2), namely, "shall be entitled to recover the same from the landlord by adjustment towards the rent payable by him." The meaning of this expression has to be found from the key words "recover the same towards the rent payable by him," 'which, in my opinion, mean that if the tenant per force has to pay the municipal tax for having not been paid by the landlord, he is entitled to recover what has been paid by him towards the rent payable by him. In Oxford Dictionary the word "payable" means "falling due on a specified date." In Webster's Dictionary "payable" means "due to 'be paid." Therefore, adjustment has been permitted towards the rent payable by the tenant falling due on a specified date, The tenant, therefore, is en titled to recover the deposits made by way of municipal tax by adjustment towards the rent as and when falls due payable by him to his landlord. This interpretation of section 9(2) also finds support from section 223 of the Patna Municipal Corporation, Act which in clear words states that the tenant may deduct from the next add following payments of his rent. In this view of the matter, the, deposits made on 5.9.80 and 9.9.80 cannot be adjusted, towards the rent which had already 'fallen due from 21.12.79 which is about eight months' non-payment of rent by the tenant, My view finds support from it decision of this Court in Ram Lakhan Choudhary's case (supra) where his Lordship relying upon a Full Bench decision of this Court in Niranjan Pal's case (supra) countenanced the argument that section 9(2) cannot be read along with the Patna Municipal Corporation Act. H. L. Agrawal, J. held, that adjustment bas only been permitted by way of deduction from the next and following payments of his rent. In short, it cannot be adjusted towards the rent which is already in default. In that view of the matter, on 5.9.80 when the municipal tax, was deposited by the appellant he was already a defaulter and the right of recovery of the said sum does not save the tenant from being a defaulter in the payment of rent for the purpose of eviction. Section 12(1)(d) postulates when a persons a defaulter that is, arrears of two months lawfully payable having not been paid within the time fixed by contract or it the absence Of contract by the last day of the month next following' that for which the rent is payable. It is not necessary that there should' be two consecutive months default but in totality prior to the institution of the suit there should be two months' rent lawfully payable by the tenant in default having not been paid in time See the case of Madho Lal v. Madan Mohan Agrawalla (A.I.R. 1975 Patna 154). It is manifest that this obligation was not discharged by the tenant. He remained content to pay the municipal tax as and when it was demanded from him by the municipal authorities. This silence on the part of the tenant made him a defaulter in the payment of eight months' rent. The contention of learned counsel that his client should be permitted to adjust the rent payable by him of the slim of Rs. This silence on the part of the tenant made him a defaulter in the payment of eight months' rent. The contention of learned counsel that his client should be permitted to adjust the rent payable by him of the slim of Rs. 346.50 deposited on 3.12.78 towards the third and fourth quarters of 1974-75 and the first quarter of 1975-76 to my mind goes counter to his case. According to defendant's own case the plaintiff became the landlord of the house and he became entitled to rent from 21.12.79. Therefore, any prior payment of municipal tax while the property belonged to somebody else is of no consequence. The tenant was discharging somebody else's liability and not of the present landlord. Further from 1.1.78 there is no finding that the tenant had paid any rent to either of his landlords. If the sum of Rs. 346.50 is taken for the purpose of adjustment and recovery, both backward and forward, it will only clear off the dues of the old landlord from 1.1.78 to December 1979. It is no more available for adjustment of arrears of rent accruing after 21.12.79 It may' at best reduce the period of default from eight months to seven months. 8. In view of my decision on the question of default affirming the decision of the lower appellate court, there is no need of going into the question of personal necessity and consider the case of the defendant for admissibility of the additional evidence. 9. Having heard learned counsel for the parties and particularly in view of the request of Mr. A. N. Sahay that in the event the suit for eviction is decreed, his client, who is occupying the premises since the year 1940, be given at least six months' time to find an alter native accommodation, I feel that the request is not unjustified-. After the amendment of the 1947, Act in the year 1955 there is no such power in court postponing the ORDER :of' eviction but since the learned counsel undertakes to vacate the premises, of given six months' the to vacate, I in view of the said undertaking and in ORDER :to save the landlord from the botheration of levying execution, direct that the tenant may not be disturbed for six• months from today. 10. In the result, the appeal is dismissed with the observation as indicated in the preceding paragraph. 10. In the result, the appeal is dismissed with the observation as indicated in the preceding paragraph. In the circumstances I make no ORDER :as to costs.