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1986 DIGILAW 18 (PAT)

Prakash Kumar Sinha v. Gauri Shankar Prasad

1986-01-16

S.K.JHA

body1986
JUDGMENT : S.K Jha, J. The defendant of Title suit no. 61 of 1978, pending in the court of Additional Munsif. Darbhanga, is the petitioner here. The ORDER :under challenge is that dated 7th June, 1984. By the impugned ORDER :the court below has directed the petitioner (tenant) that he must deposit the arrears of rent under the provisions of section 13 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1977, (Bihar Act XVI of 1977), at the rate of Rs.60/- per month for the period between October, 1976, to May, 1984, within one month from the date of the ORDER :and for each subsequent month, by the 15th of the succeeding month. 2. Mr. R.K. Verma, learned counsel for the petitioner, raised a number of points in this case, an of which do not go to point out any jurisdictional error in the impugned ORDER :. Yet, a part of the ORDER :under challenge must be struck down on the ground of a clear error of jurisdiction. But before I pinpoint that particular aspect the relevant facts short as they are, may just be narrated. 3. The instant suit was instituted in the year 1978 under the provision of the 1977 Act for eviction of the petitioner from the tenanted premises. An application under section 13 or the Act was filed on 9th March, 1979. It may be pertinent to note here that by statutory efflux of time the 1977 Act was nonest on the date either when the suit was filed or on the date on which the application under section 13 of the 1977 Act was filed. All the same, on a consideration of the matter by some Bench decisions of this Court, it has been held that by virtue of the subsequent Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, (Bihar Act 4 of 1983), the 1977 Act shall be deemed to continue to remain in operation which in term perpetuated an old Act of 1947. Therefore, the question as to whether there was any Statute in the interregnum period is wholly immaterial and it is neither here nor there for the purpose of disposal of this application. 4. The first point that was urged on behalf of the petitioner was that he was not in possession qua tenant but as an owner of the suit premises. 4. The first point that was urged on behalf of the petitioner was that he was not in possession qua tenant but as an owner of the suit premises. Both the parties had led evidence, and amass of them, in the court below and the court below has prima facie recorded a finding that the petitioner was a tenant under the opposite party and that there was a subsisting relationship of landlord and tenant between the parties. Learned counsel invited my attention to numerous facts and wanted me to appraise them for coming to a finding contrary to that recorded by the court below. That does not come within the scope of section 115 of the Code of Civil Procedure. On the appraisal of the evidence on record, a prima facie finding with regard to the relationship of landlord and tenant between the parties has been recorded and that is the end of the matter for the present purpose. The rate at which rent was last paid has been prima facie held to be at a sum of Rs.60/- per month. These two prima facie findings of fact cannot be interfered with in a civil revision. 5. Therefore, the direction of the court below that the deposit at the rate of Rs.60/- per month in the court below should remain in the safe custody of the court till the disposal of the suit suffers from no infirmity. On the contrary, it safeguards the interest of the petitioner and does not give the liberty to the opposite party to withdraw the same during the pendency of the suit to avoid the contingency of any adjustment of equities between the parties after the final result in the suit itself. There, however, appears to be some confusion in the mind of the learned counsel that apart from the amount to be deposited by the petitioner, the court below has also directed that along with it security should also be furnished. This is just a misgiving arising out of the confusion in the language used by the court below. The court below has said: (In Roman). " ... Saath Hi Unhe Aadesh Diya Jata Hai Ki Ukta Rashi Ki Suraksha Hetu We Nyayalaya Me Suraksha Patra Prastut Karen Anyatha Unhe Doshi Samjha Jayega Tatha Unki Prati Raksha Ko Kata Hua Samjha Jayega". The court below has said: (In Roman). " ... Saath Hi Unhe Aadesh Diya Jata Hai Ki Ukta Rashi Ki Suraksha Hetu We Nyayalaya Me Suraksha Patra Prastut Karen Anyatha Unhe Doshi Samjha Jayega Tatha Unki Prati Raksha Ko Kata Hua Samjha Jayega". This does not mean that apart from the money to be deposited, the petitioner has also to furnish security to the satisfaction of anyone nor does it seem to be warranted in view of the fact that the amount in cash has already been directed to be deposited by the petitioner. All that the court below means to say is that while depositing the amount in the court below it should be mentioned that such an amount was being deposited by virtue of the ORDER :of the court and in token of such a deposit, a receipt has to be obtained by him as a proof of the fact that he has so deposited the same as directed to be deposited. There is no direction, nor could there be any, for any further security to be furnished by the petitioner. This has been made clear so that no confusion can later on arise in so far as this aspect of the matters concerned. 6. Now, however, we have to consider the partial jurisdictional error committed by the court below in passing the impugned ORDER :. Section 13 of the 1977 Act which is mutatis mutandis a reproduction of section 11A of the 1947 Act stipulates that on an application being made by the landlord while the suit is pending, the court may make an ORDER :for deposit of rent at such rate at which it was last paid month by month and the arrears of rent, if any. Such a provision has been construed in a number of decisions including the one covered by a Full Bench decision of this Court in the case of Ram Nandan Sharma and another v. Mt. Maya Devi and others (A.I.R. 1975 Patna 283: 1974 PLJR 584 ) in which it has been held that what was meant by the provisions for deposit of arrears of rent was only arrears of rent accruing due during the pendency of the suit and not before that. Maya Devi and others (A.I.R. 1975 Patna 283: 1974 PLJR 584 ) in which it has been held that what was meant by the provisions for deposit of arrears of rent was only arrears of rent accruing due during the pendency of the suit and not before that. Of course, section 15 of the 1982 Act has given the landlord a further advantage of recovery of arrears of rent for the period even before the institution of the suit subject to limitation. But that cannot come to the rescue of the opposite party in the instant case in view of section 1 of Bihar Act 4 of 1983 which became effective, excepting section 28 with which we are not concerned, with effect from the 1st of April, 1981. Proviso (b) to sub-section (3) of section 1 says that in spite of the coming into force of the Act, it shall not affect any liability incurred under the 1977 Act, That does not, however, bestow any right upon the landlord, who is the opposite party in this case, the advantage of section 15 of the 1982 Act. It saves only the liability incurred under the 1977 Act. The liability incurred in the instant case, giving rise to the application and the ORDER :under section 13 of that Act, would be governed by the substantive provisions of section 13 of the 1977 Act itself which, as I have already stated earlier, was mutatis mutandis the same as section 11A of the 1947 Act. It would bear repetition to state that the law then in force did not confer any jurisdiction on the trial court to pass any ORDER :for deposit of arrears of rent prior to the institution of the suit. The suit was instituted, as has already open stated earlier, sometime in the year 1978. The court below, therefore, had no jurisdiction to direct the petitioner to deposit the arrears before the institution of the suit i.e. from October, 1976, to the date of the institution of the suit. That part of the ORDER :, therefore, must be struck down as being without jurisdiction and the impugned ORDER :must be modified, as the law enjoins that the petitioner has to deposit arrears of rent from the date of the institution of the suit onwards at the rate of Rs.60/- per month. That part of the ORDER :, therefore, must be struck down as being without jurisdiction and the impugned ORDER :must be modified, as the law enjoins that the petitioner has to deposit arrears of rent from the date of the institution of the suit onwards at the rate of Rs.60/- per month. I have refrained from giving the date of the institution of the suit as none of the parties could say categorically as to when the suit was instituted. The court below will, therefore, now substitute that part of the ORDER :only that the arrears accruing during the pendency of the suit shall have to be deposited by the petitioner by calculating the same at the rate of Rs.60/- permonth. Since an ORDER :of stay has been obtained by the petitioner in this Court, the court below shall now calculate the arrears of rent from the date of the institution of the suit up to the month of February, 1986, and direct the petitioner to deposit the same by the 15th of April, 1986 and for the period from March, 1986, onwards, by the 15th of the next following month. To be more precise, the rent for the month of March, 1986, must be deposited by the 15th of April, 1986, the rent for the month of April, 1986, must be deposited by the 15th of May, 1986, and soon, till the suit is disposed of. With this modification in the impugned ORDER :, the application is allowed in part. There shall be no ORDER :as to costs. 7. Since, however, the suit for eviction by the landlord is pending since the year 1978, it is high time that the suit be disposed of as soon as possible, preferably within six months from to day. Let a copy of this ORDER :be communicated to the court below immediately for doing the needful. No fresh notice to the parties is called for in this case for the purpose of deposit of rent as learned counsel for the parties, as in duty bound, shall inform their clients, accordingly if they are not already present in the Court. 8. No fresh notice to the parties is called for in this case for the purpose of deposit of rent as learned counsel for the parties, as in duty bound, shall inform their clients, accordingly if they are not already present in the Court. 8. It goes without saying that the prima facie findings recorded by the court below shall not act to the prejudice of either party at the trial of the suit and further that in case of default on the part of the petitioner in depositing the rent as directed above, the statutory penalty, namely, the striking out of the defence shall automatically come into play. Application allowed in part.