Dwarika Prasad Saboo v. Mathura Prasad Sahu — 1995 DIGILAW 695 (PAT)

Judgment S.N.Jha, J. 1. This appeal by the defendant-tenant against judgment and decree of reversal arises out of a suit for eviction. 2. The plaintiff-landlord instituted Title Suit No. 41 of 1982 in the court of Munsif at Gumal for eviction of the defendant on the ground of default in payment of rent and personal necessity. His case shortly stated is that the defendant is a monthly tenant in a portion of the house at a rental of Rs. 45.00 per month payable in the following month according to Samvat calendar. He stopped paying rent from the month of Push 2036 making himself liable to eviction. The plaintiff also set up a case of personal necessity. According to him, the size of the family over the years had grown, the expenses had increased and he wanted to start a grocery business to augment his income and. therefore, needed the premises for his own use and occupation. The plaintiff also prayed for decree for a sum of Rs. 1,485.00 as arrear of rent. The suit was instituted on 5.10.82. 3. The defendant did not deny the relationship of landlord and tenant. He also admitted that the rental was Rs. 45.00 per month. He further admitted that the rent was payable according to Samvat calendar. he however, denied that the rent was payable every month or in the following month. According to him, rent used to be collected by the plaintiff according to his convenience, sometime after several months. He also took the plea the plea that the plaintiff had taken advance of Rs. 90.00 on 1.12.79 and Rs. 50.00 on 24.5.80 and had also taken a bicycle worth Rs. 358,31 paise from the defendants shop on 30.1.80 on credit the price of which was to be adjusted against future rent. He claimed to have paid rent upto the month of Agrahan 2036 for which rent receipt had been granted by the plaintiff. He requested the plaintiff to grant rent receipt with respect to the subsequents month after adjusting the amount of the said two advances and the price of bicycle but the plaintiff did not accede to his request. The defendant, in the circumstances, after adjusting the amount of Rs. 140.00 (advanced to the plaintiff) and the price of the bicycle, remitted the balance amount of Rs. The defendant, in the circumstances, after adjusting the amount of Rs. 140.00 (advanced to the plaintiff) and the price of the bicycle, remitted the balance amount of Rs. 86.69 paise to him through Money Order on 16.2.81, which covered rent upto the month of Push, 2037. The plaintiff, however, refused to accept the money order. The defendant has been regularly sending the amount of rent every month thereafter through Money Orders which have been refused and returned to him. Thus, according to the defendant, he is not a defaulter. The ground of personal necessity also was denied. According to the defendant, the plaintiff is an agriculturist and has sufficient income to maintain his family. And even if he required a portion of the house to open a grocery shop two vacant rooms adjacent to the suit premises were vacant which could be utilised for doing business. It may be mentioned here that according to the defendant, during pendency of the case another shop, part of the same house, also fell vacant with respect to which an application under Order XLI Rule 27, Code of Civil Procedure has been filed by him in this Court to consider the said subsequent event as additional evidence. 4. The trial court upon consideration of the pleadings of the parties and the evidence on record accepted the defendants case of making advances and giving bicycle on credit and came to the conclusion that the defendant was not a defaulter. Regarding personal necessity also the trial court accepted. the defendants case that two adjacent rooms were vacant which could be utilised by the plaintiff for doing business. It thus came to the conclusion that the need was neither reasonable nor bonafide. On these findings the trial court dismissed the suit. 5. The lower appellate court, however, reversed the findings both on the point of default as well as the personal necessity. The appellate court has held that in the absence of any agreement to that effect the defendant was not-entitled to adjust the price of bicycle and even if his case of adjustment be accepted, the amount of Rs. 5. The lower appellate court, however, reversed the findings both on the point of default as well as the personal necessity. The appellate court has held that in the absence of any agreement to that effect the defendant was not-entitled to adjust the price of bicycle and even if his case of adjustment be accepted, the amount of Rs. 86.69 p. which was remitted by Money Order on 16.2.81 did not cover the amount of arrear as the same had been calculated on the basis of intervening 13 months (from Push 2036 to Push 2037) but in the Samvat year 2037 which was a Malmas year there were two Jeths and therefore, the arrear should have been calculated for 14 months, to be precise. Rs. 630.00 as on 16.2.81. The appellate court accordingly concluded that the defendant was defaulter. The appellate court also found that the plaintiff reasonably and bonafide required the suit premises for his own occupation as only one small room measuring 10 x 10, and not two rooms as alleged by the defendant, was vacant which was not sufficient and suitable for the purpose of doing business in food grains. The appellate court, in this connection, also observed that defendant had several big houses and buildings at Gumla most of them on the main road and therefore his refusal to part with occupation of the suit premises was not bonafide. 6. This appeal was admitted and referred to hearing by Division Bench on the following questions : - (i) Whether in view of the definition of month and year under the provision of the Bihar and Orissa General Clauses Act a tenant will have to tender rent for thirteen months in a Samvat year which consists of a Malmas ? (ii) Whether the learned court of appeal below erred in law in reversing the finding of the trial court with regard to the ground of personal necessity on the part of the plaintiff-respondent without taking into consideration that the plaintiff did not utilise two vacant rooms in his possession for the purpose of carrying on business ? 7. Mr. N. K. Prasad, learned Counsel for the appellant has submitted that the appellate court below erred in law in making out a case which was not pleaded by the plaintiff by introducing the concept of Malmas. 7. Mr. N. K. Prasad, learned Counsel for the appellant has submitted that the appellate court below erred in law in making out a case which was not pleaded by the plaintiff by introducing the concept of Malmas. He pointed out that as the plaintiff claimed arrear of rent of Rs. 1485.00 which on calculation comes to the amount of rent payable for 13 months only (from Push 2036 to Push 2037) @ Rs. 45.00 per month, the appellate court ought not to have included the second Jeth to hold that the defendant was liable to pay rent for 14 months between Push 2036 and Push 2037. Learned Counsel has also contended that the finding on the question of default is further vitiated as the appellate court did not record any finding to the effect that there was no agreement between the parties that the excess amount lying with the landlord had to be adjusted, and recorded an adverse finding only on the basis of precedents. Counsel also assailed the approach of the appellate court that unless there is evidence of actual tender, the amount of rent cannot be said to have been remitted in the eye of law. Counsel in support of the last-mentioned contention placed reliance on the cases of Raj Kumar Prasad V/s. Uchit Narain Singh -- : 1988 PLJR 950 and Smt. Priya Bala Ghosh V/s. Bajranglal Singhania -- . 8. Mr. Debi Prasad, learned Counsel for the respondent on the other hand submitted that as the defendant was admittedly a monthly tenant, rent had to be paid every month. The question as to whether in a particular Samvat year there is a malmas or adhikmas or not is of no consequence. He referred to Exts. 2 and 2/A and also Exts. 2/L and 2/M to show that in the past the defendant had paid rent for 13 months, i.e. for malmas/adhikmas month as well. He contended that merely because the defendant did not claim arrear of rent for 14 months during the period of default, i.e. between Push 2036 and Push 2037, it does not mean that rent for the additional month of Jeth was not payable. He contended that merely because the defendant did not claim arrear of rent for 14 months during the period of default, i.e. between Push 2036 and Push 2037, it does not mean that rent for the additional month of Jeth was not payable. He submitted that it is open to the plaintiff not to claim arrear of rent in a suit for eviction or claim only portion of it, that is to say, waive his right to receive the arrear, but so far as the question of default is concerned, if the tenant commits default in payment of rent for two or more months, whether the rent for the said months is claimed or not, the default is complete and the tenant is liable for his eviction. 9. Sec. 11 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter called, the Act) contains the grounds of eviction of tenant. The ground of default as contained in Clause (d) runs as follows: -- (d) Where the amount of two months rent, lawfully payable by the tenant and due from him is arrears be not having been paid within the time fixed by contract or in the absence of 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 Sec. 16. From bare perusal of the above provision it would appear that the tenant becomes liable to eviction if he fails to pay two months rent within the time fixed by the contract or in the absence of the contract, by the last day of the next following month or fails to remit or deposit the amount in accordance with the provisions of Sec. 16. It is a matter of convenience for the parties to agree to payment of rent every month of couple of months. Where rent is payable every month it is again a matter of convenience and agreement as to whether the rent is to be paid according to the Gregorian (British) Calendar month or Samvat Calendar month or any other calendar month. But in any event, per whatever calendar month the rent is to be paid, the last date of the next following month has to be calculated according to that particular calendar. 10. In Gannesh Lal Sonar V/s. Md. But in any event, per whatever calendar month the rent is to be paid, the last date of the next following month has to be calculated according to that particular calendar. 10. In Gannesh Lal Sonar V/s. Md. Ismail -- : 1975 BBCJ 738 rent was payable as per fasli calendar month. The tenant was said to have defaulted for the months of Shrawan and Bhado of fasli year 1369. Those months ended on 16.8.62 and 15.6.62, respectively. The last day of the next month i.e. Ashin was 13.10.62. The tenant paid rent on 19.10.62. The argument on behalf of the tenant was that the month of Ashin (ending on 13.10.62) should not be taken into consideration and in view of the definition of month in the General Clauses Act, he could pay rent till the end of October 1962. The argument was rejected by the learned Judge in these words. I do not think it possible to import into the provisions of Clause (d) just referred to above the definition of month as in the General Clauses Act to mean, as contended by the learned Counsel, that it must mean the whole of British Calendar month. I venture to take this view from the provisions occurring in Clause (d) itself, which has been underlined by me above what the Legislature intended to provide to the advantage of a defaulting tenant was to give him a period of one complete month next following the month of default, for making the payment to the landlord, which is quite obvious from the expression "by the last day of the month next following.... 11. Where rent is payable every month it is futile to go into the question of additional month or Malmas/Adhikmas. Month has no fixed connotation in terms of duration. Its duration varies from calendar to calender. The duration of month as per the Samvat Calender is less than 30 days. The extra day gets on accumulating. In the fourth year the accumulated days are treated as an additional month or Adhikmas and the year is called Malmas year. But that has nothing to do with the obligation of the tenant to pay every month. It is because of astronomical reasons and particular method of calculation of the movement of moon that in every block of four years- called Malmas year-an additional month occurs. But that has nothing to do with the obligation of the tenant to pay every month. It is because of astronomical reasons and particular method of calculation of the movement of moon that in every block of four years- called Malmas year-an additional month occurs. In a sense, even in the Gregorian (British) Calendar the number of days is not the same every month and in the fourth year called Leap year, there is an additional day. But that does not change the meaning of year. Thus as per Samvat calendar, there may be two Baishakhs or two Jeths and so on. But is cannot be said that for the purpose of payment of rent, they will be deemed to be one month. The tenancy rights are created by agreements between the parties as they understand them to be, subject to statutory provisions. When the tenant agrees to pay rent every month (and the statute also provides for payment "by the last day of the month next following"), he agrees to pay for every unit into with a year in divided Baisakh Jeth, or January, February are merely names given to those units in the respective calendar. Rent is payable every month, it is not payable for the months of Baisakh or Jeth, and so on, as such, If the interpretation put forth by the counsel for the appellant were to be accepted it would mean that a tenant would be allowed to live in the house free of charge for the whole month of Malmas or adhikmas in every block of four years. When the Act provides that the rent is to be paid "by the last day of the month next following that for which the rent is payable" it cannot be said that for a particular month of the year according to the Samvat calendar no rent would be payable at all. In fact, as noticed above, in the past, the defendant has himself paid rent for the additional month i.e. Malmas, vide Exts. 2 & 2/A and 2/L & 2/M. I, therefore, do not find any error in approach of the lower appellate court in calculating the amount arrears by including the second Jeth or the Samvat year 2037. 12. In fact, as noticed above, in the past, the defendant has himself paid rent for the additional month i.e. Malmas, vide Exts. 2 & 2/A and 2/L & 2/M. I, therefore, do not find any error in approach of the lower appellate court in calculating the amount arrears by including the second Jeth or the Samvat year 2037. 12. It may, however, be stated here that the appellate court has held the defendant to be a defaulter not only on the ground that he committed default in payment of rent for the second Jeth. That was only an alternative ground to find out as to whether the defendants case of having remitted the entire amount of arrear of rent as on 18.2.81 was correct or not. It may be recalled that according to the defendant he had remitted Rs. 86.69 p. on that day after adjusting the amount advanced as the price of bicycle on the basis of 13 months rent, which the appellate court found to be not tenable as during the period between Push 2036 to Push 2037 there was 14 months. This was only an alternative ground suggested which would be clear from the fact that the appellate court has rejected the defendants case of adjustment. I would come to that question little later. 13. The question as to whether in view of the definition of month or year under the Bihar General Clauses Act a tenant has to pay rent for 13 moths in a Samvat year, as framed by this Court at the time of admission for the reasons stated above, really does not arise for consideration. There is no dispute at the bar that it is open to the parties to agree to pay rent according to the British Calendar or according to Samvat Calendar or any other calendar as they may like. Where the parties agree that the rent will be paid according to the Samvat calendar which is not unusual in certain part of the State, the question of applicability of the provision of the Bihar General Clauses Act which defines month to mean "month reckoned according to British Calendar", does not arise. Where the parties agree that the rent will be paid according to the Samvat calendar which is not unusual in certain part of the State, the question of applicability of the provision of the Bihar General Clauses Act which defines month to mean "month reckoned according to British Calendar", does not arise. The question of law which really arises for consideration is whether in a case where tenancy is created according to Samvat Calendar and rent is payable accordingly, a tenant is liable to pay rent for 13 months is a malmas year. For the reasons stated above, according to me, the answer has to be in the affirmative. 14. Adverting to the correctness of the finding on the question of default, as stated above, the appellate court has rejected the defendants case of adjustment on the ground that there was no agreement between the parties to that effect. In coming to the conclusion the appellate court relied upon a decision of this Court in the case of M.N. Roy Chowdhery V/s. Nan Kishore Kakar -- . The learned Single Judge therein has held relying upon a Bench decision in the case of Madholal V/s. Madan Mohan Agrawalla AIR 1975 Patna 154 that "once rent for two months has not been paid or deposited, the default takes place and the defendant cannot absolve himself of the consequence even if it is assumed that he had spent the money with consent of the plaintiff". (In that case the defendant had taken the plea of having constructed a cowshed and fencing wall with the consent of the plaintiff. 15. The point at issue stands squarely covered by the decision of the Supreme Court in the case of Nand Lal Agarwal. V/s. Gannesh Prasad Sah -- in the context of the Bihar Rent Control Act itself. The point at issue like in the instant case was whether the defendant was entitled to adjustment of advance for determining whether he was a defaulter within the meaning of Clause 11(1)(d) of the Act. The Apex Court referred to the provision of Sec. 8(2) of the Act which provides for adjustment of the amount of rent paid in excess where the fair rent of the building has been determined or re-determined, and held that the same provision would be applicable even where defendant claims adjustment of excess amount without any determination of fair rent. The Apex Court referred to the provision of Sec. 8(2) of the Act which provides for adjustment of the amount of rent paid in excess where the fair rent of the building has been determined or re-determined, and held that the same provision would be applicable even where defendant claims adjustment of excess amount without any determination of fair rent. The following observation at page 1823 of the report may usefully be noticed: Though Sec. 8(2) deals with payment of excess rent or buildings for which the fair rent has been determined or re-determined by the Controller, the same principle, in the absence of a different prescription under the Act, has to govern the buildings for which the rent is payable in accordance with the terms of the contract between the parties. It therefore follows that even if the rent for the building leased out to the appellant had not been determined by the Controller but had been fixed by the parties themselves, the right to seek adjustment of the excess payments made by the appellant has to be in accordance with the principle set out in Sec. 8(2). Viewed in that light the logical conclusion will have to be that without the appellant calling upon the respondent to adjust the excess payments towards the arrears of rent, he cannot seek such a right in the suit filed by the respondent by way of defence in the suit for eviction. 16. Though a bald plea has been taken by the defendant that he had claimed adjustment of the excess amount being the amount of two advances and the price of bicycle, he did not produce any documentary evidence to substantiate the plea, in any view no case has been made out that the cycle had been sold to the plaintiff on credit subject to adjustment of its price against rent due. It is obvious that the defendant after committing the default took the plea as the defence in the suit. But in view of the decisions referred to above, he cannot take such a plea as a defence to get rid of the liability which he has already incurred. 17. It is obvious that the defendant after committing the default took the plea as the defence in the suit. But in view of the decisions referred to above, he cannot take such a plea as a defence to get rid of the liability which he has already incurred. 17. Once the defence case of adjustment is rejected it follows that on the admitted case of the defendant he did not pay rent for the months from Push 2036 to Push 2037 and therefore was clearly in default for a period of more than two months. I, therefore, do not find any infirmity in the finding of the appellate court on the question of default. 18. In view of my finding on the question of default, strictly speaking, it may not be necessary to go into the question of personal necessity, for in terms of the provisions of Sec. 11 of the Act a landlord is entitled to eviction on any one of the grounds as set out thereunder. However, having regard to the finding of fact recorded by the appellate court below that out of the two rooms said to be adjacent to the suit premises and allegedly lying vacant on the date of institution of the suit, only one room measuring 10 x 10 was found to be vacant which too, according to the appellate court, was neither sufficient for suitable to satisfy the need, I am afraid, there is hardly any scope or need for any discussion. The above-said finding is a finding of fact and cannot be set aside in second appeal. 19. As regards the other portion of the house allegedly falling vacant during pendency of the case with respect to which the aforementioned application under Order XLI Rule 27, C.P.C. has been filed, it has been stated on behalf of the plaintiff that only one son has started cycle business in the said premises which cannot be said to satisfy the entire need of the plaintiff. Attention was drawn to the pleading wherein it has been stated that plaintiff has three sons. 20. There is no dispute at the bar that the expression "own occupation" does not mean personal exclusive occupation of the plaintiff alone. Attention was drawn to the pleading wherein it has been stated that plaintiff has three sons. 20. There is no dispute at the bar that the expression "own occupation" does not mean personal exclusive occupation of the plaintiff alone. The expression has to be given a liberal interpretation so as to include the need of the plaintiffs family particularly the sons as it is the pious and solemn obligation of every father to get his sons settled in life. Thus, as rightly pointed out by the counsel for the plaintiff, if during the intervening period of over a decade, one of the three sons has been able to establish cycle business in the aforementioned premises after eviction of the tenant during pendency of the case, it cannot be side that the need of the other two sons also stands satisfied. 21. I, therefore, do not think that the finding of the appellate court on the question of personal necessity suffers from any error which would justify interference in second appeal. 22. No argument was advanced on the question of partial eviction. I have nevertheless considered that aspect of the matter. The size and dimension of the suit premises has not been mentioned in the plaint not, as stated by the counsel, anything has come on record in that regard in evidence. But according to me, if the premises measuring 10 x 10 which the appellate court found to be vacant, was found to be not sufficient to satisfy the need of the plaintiff. I wonder if the partial eviction from the premises would satisfy his need, even substantially. 23. In the result, I do not find any merit in this appeal which is accordingly dismissed with costs. S.N.Jha, J. 24 I agree.