Nirbhay Narayan Jha v. Alakh Kumar Sinha — 1990 DIGILAW 142 (PAT)

Judgment Satyeshwar Roy, J. 1. The defendant is the appellant. The respondents filed a suit for his eviction from the building in question on the grounds that the appellant had defaulted in paying rent from October, 1975 to January, 1976, that the respondents required the building for their own use and occupation that the condition of the building had materially deteriorated because of the act of waste of the appellant. They also prayed foe arrear rent. All the grounds were contested by the appellant by filing written statement. The trial court held that the respondents had proved all the grounds. It passed a decree for eviction of the appellant. The appellate court confirmed all the findings of the trial court. 2. On 14.9.1978, at the time of admission of the appeal, the following substantial questions of law were formulated: (i) Whether under Sec. 13(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (the Act), a tenant is required to remit the current rent as well as all arrear rents of the previous months which had fallen due and which the landlord refused to accept? (ii) Whether in absence of any pleading in the plaint that the tenant was under any law, contract or custom bound to make repairs, a finding of the court below that the condition of the building has materially deteriorated owing to fault and negligence of the tenant is correct? (iii) Whether in view of the finding of fact by the appellate court that respondent No. 6 (plaintiff No. 6) has no personal necessity for the building and in absence of any fact that any other plaintiffs required the building reasonably and in good faith, a finding that the respondents required the building for their own use and occupation is correct? (iv) Whether in absence of any finding as to whether the eviction of the tenant from portion of the building would have satisfied the need of the respondents, the judgment is vitiated? 3. At the time of hearing of the appeal, it was found that point No. (i) did not survive as the judgment on the basis of which the courts below held that the appellant was required to remit by money order not only the current rent but also the whole of the arrear rent has been overruled. 3. At the time of hearing of the appeal, it was found that point No. (i) did not survive as the judgment on the basis of which the courts below held that the appellant was required to remit by money order not only the current rent but also the whole of the arrear rent has been overruled. After hearing the counsel appearing on behalf of the patties, the following substantial question of law was formulated in that place: Whether in the circumstances of this case, the courts below could have held that the appellant had defaulted in paying the rent from October, 1975 to January, 1976. 4. So far the substantial question No. (ii) was concerned, there was no pleading in the plaint that the appellant was under any law, contract or custom bound to make repair of the building. In paragraph 3 of the plaint, it was stated due to fault and negligence of the defendant, the building had been totally damaged and it has become unsafe for human habitation. In reply to this paragraph, in paragraph 6 of the written statement, it was stated that it was the obligation of the landlord both legal as well as contractual to carry out major repairs as well as annual repairing and white washing which the plaintiffs never did. PW 8 was one of the plaintiffs and P.W. 9 was a clerk of the Ranchi Municipality. P.W. 8 in his evidence stated that the condition of the house was very bad for which a notice to demolish it has been given by the Ranchi Municipality. This was corroborated by P.W. 9. D.Ws. also have stated that the condition of the building was bad. There was no evidence to prove that the present condition of the building was because of the act of omission and commission on the part of the appellant. Both the courts below noticed these facts. The building was in a bad shape because of natural wear and tear and it was an old building. In absence of any pleading that the appellant was required under the law, custom or usage to repair the building and in absence of any such evidence, the findings of both the courts below that the condition of the building has materially deteriorated because of the act of commission and omission on the part of the appellant cannot be sustained. 5. 5. So far the substantial question No. (i) as formulated during the course of hearing was concerned, the relevant facts are that the agreed mode of tender of rent by the appellant to the respondents was by money order. The respondents accepted the rent sent by money order upto September, 1975. In the plaint it was stated that the appellant had neither validly tendered nor paid the rent from October, 1975 to January, 1976, In the written statement, in reply to this, it was stated that the appellant has regularly and validly paid and/or tendered the rent to the respondents. The rent upto September, 1975 had been paid to the respondents and the rent from October, 1975 was tendered by money order which the respondents refused to accept. 6. In the appellate court, money order coupons were marked as exhibits. By Ext. B/3, dated 12.12.1975 rent for October and November, 1975 was remitted. By Ext. B, dated 7.1.1976 rent for December, 1975 and by Ext. B/1 dated 6.7.1976 the rent for January, 1976 was remitted. 7. Mr. M.Y. Eqbal, learned Counsel appearing on behalf of the appellant conceded, and rightly, submitted that so far the rent for October, 1975 was concerned, as the same was not remitted in November, 1975, the appellant was a defaulter in paying the rent for that month. The decree on the ground of default in payment of rent can be passed against a tenant duly if it is held that he has defaulted in paying or tendering the rent of at least two months. 8. About the factum of remittance of rent by Exts. B/3, B and B/1 was not challenged by Mr. Debi Prasad, learned Counsel appearing on behalf of the respondents. He, however, urged that when the respondents refused to accept the rent sent by money order, the appellant was required in law to send again that rent by money order which was refused and as it was not done, the remittance of rent by money order was not a valid tender under Sec. 13(1) of the Act. Mr. Eqbal submitted that in view of the admitted case that mode of tender was by money order and as the appellant had adopted that mode in tendering the rent all through out the relevant period, there was compliance of Sec. 19(1) of the Act. Mr. Eqbal submitted that in view of the admitted case that mode of tender was by money order and as the appellant had adopted that mode in tendering the rent all through out the relevant period, there was compliance of Sec. 19(1) of the Act. Sec. 13(1) of the Act which is relevant reads as follows: 13. Deposit of rent by tenant on refusal of the landlord to accept it or in case of doubt or dispute as to the person entitled to receive it.--(1) When a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may 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. 9. It is now settled that a tenant may tender rent in any mode known to law, for instance, it may be hand to hand, it may be by money order, it may be by bank draft, it may be by cheque. It was submitted by Mr. Debi Prasad that even if the agreed mode of tendering rent is by money order, if the landlord refused to accept the money order of a particular month, the tenant must send again the rent of that particular month by money order because that is the mandate of Sec. 13(1) of the Act. It was submitted by Mr. Eqbal that in a case where the mode of tender is by money order, no purpose will be served by sending that rent again by money order which has been refused by the landlord. According to him, all that the law require is that the tenant must continue to remit the rent, which in this case the appellant did. 10. I have already noticed that the rent for October, 1975 was sent by money order by the appellant beyond time. I will, therefore, exclude the tender of rent by money order for the month of October, 1975. The admitted case of the appellant is that after the rent sent by money order was refused by the respondents, he did not send again by money order the rent of November, 1975. At the par decisions of both the Supreme Court and this Court were cited. 10. The admitted case of the appellant is that after the rent sent by money order was refused by the respondents, he did not send again by money order the rent of November, 1975. At the par decisions of both the Supreme Court and this Court were cited. 10. I will first notice the Full Bench decision of this Court in Raj Kumar V/s. Uchit Narain -- : The Full Bench was constituted to decide whether there was conflict in the two Division Bench judgments of this Court in Mahabir Prasad Saraogi V/s. Bibhuti Mohan -- and Madholal V/s. Madan Mohan -- . In Mahabir Prasad, it wan observed that "in construing a statute one has to look to its substance and the real intention behind the enactment, The substance of Sec. 19 (1) and the real intention behind it, in my opinion, are that once the rent is remitted by postal money order within time mentioned in Sec. 11(1)(d) of the Act, the landlord cannot claim eviction of the tenant on the ground of default in payment of rent. Therefore, in my opinion, a tender by the tenant to the landlord before remitting rent by postal money order is not a condition precedent to such remittance". In Madholal, the rent for June, 1962 and July, 1962 was remitted by money order and the endorsement of refusal was on 4.8.1962. The rent for April and May, 1963 was remitted by money order and it was refused of 4.6.1963. There was no evidence when the rent of those months was remitted. The finding of fact, which was accepted by this Court, was that the rent for June, 1962 and April, 1963 was tendered out of time because the rent of June, 1962 was not tendered in July and that of April, 1963 was tendered out of time because it was not tendered in May. This finding was recorded because the law provides for payment of rent within the time fixed in the contract and in absence of any contract by the last day of the month next following that for which the rent is payable. It was observed that "If there is a tender and refusal by the last day of the month then it goes without saying that remittance by money order has got to be within a reasonable period after the refusal on the last date. It was observed that "If there is a tender and refusal by the last day of the month then it goes without saying that remittance by money order has got to be within a reasonable period after the refusal on the last date. That brings out under general principles of law and remittance by money order under Sec. 13." In Raj Kumar (supra) it was observed that: If the law, as in the cases under the Rent Act, gives the liberty to the tenant under Sec. 11(1)(d) to make the payment in the absence of a contract by the last day of the month next following then can it be said that if on such last day the landlord refuses to accept the rent and subsequently a date later than the last day of the month next following the tenant remits such rent by postal money order, he can yet be called a defaulter? When Section 19(1) speaks of the remittance of rent by postal money order to the landlord on refusal on the part of landlord to accept such rent, the law clearly envisages two possibilities. If the tenant apprehends that for some ulterior motive the landlord could refuse to accept rent for the purpose of making the tenant a defaulter within the meaning of the Rent Act, he may remit such rent by postal money order by the last day of the month next following. That would make the remittance a valid payment within the meaning of Sec. 11(1)(d). The other option given to the tenant is to pay hand to hand or tender the rent lawfully payable by the last day of the succeeding month and in case of refusal on the part of landlord to make a remittance by postal money order on a date subsequent thereto i.e. the last day of succeeding month. 11. In Bharat Roadways V/s. Shailendra Kumar Birla 1984 BBCJ 97 the rent for January, 1976 was sent by money order on 3.2.1976 which was refused by the landlord. The tenant did not send the rent of January, 1976 again. He, however, sent the rent by money order for February, 1976 which was also refused. It was held by a learned Single Judge that under the law the tenant was required to send by money order the rent for January, 1976 again and as that was not done, he was not protected. He, however, sent the rent by money order for February, 1976 which was also refused. It was held by a learned Single Judge that under the law the tenant was required to send by money order the rent for January, 1976 again and as that was not done, he was not protected. The matter went to Supreme Court in Bharat Roadways V/s. Shailendra Kumar Birla 1984 BBCJ 103 (SC). The Supreme Court held that "the finding by the High Court on the basis of default in payment of arrears of rent is not sustainable in law." 12. If the agreed mode of tender of rent is by money order and if the landlord refuses to accept it, why the tenant should be required to send that rent again? According to Mr. Debi Prasad, that is the requirement of law. There is always some rationale in the provisions of an Act like Rent Act, Primarily the Rent Act has been enacted to protect the tenant, but it also takes care of the interest of the landlord inasmuch as it provides that the tenant must be a rent paying tenant and that he must pay it within time. What is real purpose and substance of Sec. 13(1) was stated in Mahabir Prasad (supra) which I have quoted elsewhere in this judgment. If Sec. 19(1) of the Act requires that even in a, case where the agreed mode of payment of rent is by money order, the tenant shall have to remit the rent of that month again when it is refused, the Full Bench in Raj Kumar (supra) would have observed that. Rather from the passage of the judgment in Raj Kumar (supra) quoted above, it will appear that in a case where the tenant apprehends that for some ulterior motive, the landlord would refuse to accept rent for the purpose of making the tenant a defaulter, he may remit such rent by postal money order by the last day of the month next following and that would make the remittance a valid payment within the meaning of Sec. 11(1)(d). It does not say when the rent is remitted by the postal money order by the last day of the month next following, in order to make remittance a valid payment within the meaning of law, the tenant must send that rent again by money order which was refused by the landlord, I have noticed that the Supreme Court in M/s. Bharat Roadways has not approved the law laid down by the learned Single Judge who had relied on a number of decisions including those in Mahabir Prasad and Madholal that the tenant who had tendered the rent by money order which the landlord refused to accept must send that rent again by money order in order to save him from being held defaulter in payment of rent within the meaning of law. In Veena Rani V/s. Ishrati Amanaullah AIR 1985 PLJR 390 : the rent for June, July and August, 1978 was sent by cheques which were not encashed by the landlord. The tenant sent the rent of September, 1978 by money order. In that case also, the rent of June or July or August, 1978 which was .tendered by cheques was not sent again by money order. It was held that tenant was not a defaulter. In Ram Tahal Modi V/s. Ratan Lal 1988 PLJR 950, the judgment of Supreme Court in M/s. Bharat Roadways, was referred to observe that refusal by landlord to accept rent was not a condition precedent for sending rent by money order. 13. Mr. Debi Prasad drew our attention to a judgment of a learned Single Judge in Second Appeal No. 35 of 1987 (R) : Md. Ishaque and Brother V/s. Ishwari Prasad Bhadolia, disposed of on 25.1.1990. The learned Single Judge was of the opinion that if the tenant apprehending mischief on the part of the landlord sends the rent by money order then and then only, he will not be required to send the rent of the month of which it has been refused again by money order. This perhaps was held keeping in view the observations in Raj Kumar and Veena Rani. How can one carve out a class of that type of tenants who apprehends that landlord may refuse to accept rent from other tenants who under the contract may be tendering rent by money order? Further in Md. This perhaps was held keeping in view the observations in Raj Kumar and Veena Rani. How can one carve out a class of that type of tenants who apprehends that landlord may refuse to accept rent from other tenants who under the contract may be tendering rent by money order? Further in Md. Ishaque, (eupra) the substantial question of law was: Whether the finding of the court below that money order coupons are public documents can be (sic) receipts are public documents in view of the finding recorded by trial court that there were over-writings in the receipts, the court below could have ignored the same and relied upon it? All observations not relevant for the decision of this question are obiter. Moreover in Md. Ishaque, according to the tenant, he had tendered the rent of December, 1982 and January, 1983 hand to hand, the agreed mode, but the landlord refused it. He did not send the rent of December, 1982 or January, 1983 by money order, but sent the rent of February, 1983. In the facts of that case, the tenant had defaulted, as held by the learned Single Judge, in paying or validly tendering the rent. The ratio of Md. Ishaque must be confined to the facts of that case. 14. In view of the judgment of the Full Bench in Raj Kumar and the Division Bench in Veena Rani and of the Supreme Court in M/s. Bharat Roadways, when the tender of rent is by cheque or by money order and the landlord refuses to accept it, the tenant need not send the rent of that month which has been refused by the landlord again by money order; if he sends the rent by money order of the month next following the month that for which rent was refused and continues to remit the rent of all subsequent months he has sufficiently complied Sec. 19 of the Act. On the proved facts of this case, it must be held that the appellant was a defaulter in payment of rent of October, 1975 only and as he had been not defaulted in payment of rent of at least two months, no decree for eviction on the ground of default can be passed. 15. On the proved facts of this case, it must be held that the appellant was a defaulter in payment of rent of October, 1975 only and as he had been not defaulted in payment of rent of at least two months, no decree for eviction on the ground of default can be passed. 15. With regard to the ground of personal necessity, during the course of hearing, we had observed that it might be necessary to remit that question to the appellate court because the lower appellate court has not passed any order on the application filed by the appellant under Order XLI, Rule 27 of the Code of Civil Procedure. The counsel for the parties submitted that finding be recorded on the question of default. 16. When the application was moved by the appellant in the lower appellate court, by order dated 15.2.1978 it observed that the same would be considered at the time of hearing of the appeal The appellate filed Civil Revision No. 48 of 1978 (R) against the same. This Court did not interfere as the appellate court had not disposed of the matter on merit. The lower appellate court in paragraph 31 of the judgment observed as follows: Last but not the least, again taking the path of least resistance, let us accept the photograph and the municipal paper filed in evidence and deeming them to have been exhibited under Order XLI, Rule 27 C.P.C.. I hold that Madan Mohan had no personal necessity. But even then it does not do away with the personal necessity of other plaintiffs. And in any view, the ultimate result of this appeal is not to change even if we hold that the plea of personal necessity was not duly proved. It will thus noticed that the court below did not dispose of the application filed under Order XLI, Rule 27 of the Code of Civil Procedure by the appellant. The case of the respondents was that Madan Mohan Prasad having been transferred to Ranchi was required the building for his own use and occupation. If, in fact, he has constructed a new building, as alleged by the appellant, it will be difficult to hold that he requires the building in suit. The case of the respondents was that Madan Mohan Prasad having been transferred to Ranchi was required the building for his own use and occupation. If, in fact, he has constructed a new building, as alleged by the appellant, it will be difficult to hold that he requires the building in suit. We would have disposed of the matter in this appeal but if the appellant is allowed to lead additional evidence, the respondents must be given opportunity to rebut the same. It will be just and proper that the lower appellate court first record a finding on the ground of personal necessity on the basis of the evidence already on record and the evidence that may be brought on record by way of additional evidence. 17 In the result, the appeal is allowed. The judgment and decree of the court below on the question whether the appellant has materially deteriorated the condition of the building; on the question of default in payment of rent and on the question of personal necessity are set aside. So far the first two questions are concerned, the findings have been recorded. So far the last question was concerned, the matter is remitted to the court below. The appellant shall be allowed to bring on record additional evidence on the fact whether Madan Mohan Prasad, one of the plaintiffs, has constructed a new building. The court below shall allow the respondents to lead evidence in rebuttal, if prayer is made by them. If no oral evidence is to be led by the parties, the court below shall mark the documents as exhibits that may be tendered by the parties. If they pray for leading oral evidence, the court below shall direct the trial court to record the same and to send it to it. On the basis of the evidence already on record and on the basis of the evidence that may be brought on record, the court below shall record a finding on the ground of personal necessity. If it holds in favour of the respondents, it shall decree the suit for the whole building or part of it at the case may be, in their favour and if it holds against them, it shall dismiss the suit. There will be no order as to costs. B.P.Singh, J. 18 I agree.