Ram Prasad v. Bishuni Prasad — 1997 DIGILAW 541 (PAT)

Judgment R.N.Sahay, J. 1. Title Suit No. 41 of 1976 was filed on 12.3.1976 in the Court of 1st Addl. Munsif, Siwan, by the original plaintiff Jaleshwari Devi against the defendant Bishuni Prasad. The plaintiff is the owner of the shop described in Schedule No. 1, The shop is situated in Mohalla Sabuntoli Bari Masjid within Siwan Municipality. The shop was let out to the defendant on 1.2.1975 on a monthly rental of Rs. 50.00 per month on fixed term and condition. The defendant was asked to vacate the suit premises on expiry of the lease. The defendant paid rent for some months and stopped paying rent. 2. It was submitted that the sons of the plaintiff had become major and they required the suit premises from starting business. The tenancy expired on 31.12.1975. The defendant did not vacate the premises nor paid rent. Legal notice was also served on the defendant for payment of arrears of rent and vacation of the suit premises but the defendant replied with wrong statement of fact that the plaintiff used to realise rent according to her convenience. A false plea was taken that he was tenant since 25 years which was quite false. The defendant falsely pleaded that the plaintiff wanted to enhance the rent to Rs. 60.00 and the suit was filed for this purpose and also claimed damages and cost of litigation. 3. In the written statement, the defendant stated that he was tenant in the suit premises for the last 25 years and the tenancy was not terminated in 1975. Fixed terms of tenancy was denied. It was also submitted that there was no agreement that the defendant should vacate the premises on expiry of the period mentioned in the terms and conditions of the agreement and there was no default. The plea of personal necessity was false. The defendant claimed to have continuing as tenant in the suit premises for the last 25-26 years. Previously rent of the suit premises was Rs. 8.00 . It was subsequently increased to Rs. 20.00 Rs. 25.00 and lastly it was fixed at Rs. 50/per month. The defendant had been carrying on his business of photo framing and its sale. The plaintiff was insisting for enhancement of rent to Rs. 60/which the defendant did not agree. Even Rs. 50.00 was excessive. The plaintiff used to realise rent as per her convenience. 20.00 Rs. 25.00 and lastly it was fixed at Rs. 50/per month. The defendant had been carrying on his business of photo framing and its sale. The plaintiff was insisting for enhancement of rent to Rs. 60/which the defendant did not agree. Even Rs. 50.00 was excessive. The plaintiff used to realise rent as per her convenience. The plaintiff collected rent for the whole year and withheld granting receipts for the last two months because she insisted for execution of thresh agreement and took hackthe old receipts. The papers available with the defendant would show that he was tenant in the suit premises for the last 25 years. The defendant paid rent for the month of November, 1975 on 4.12.1975 and for the month of December, 1975 on 1.1.1976 hut no receipt was granted by the plaintiff and it was told that a fresh Kirayanama would be executed and then receipt would be granted. 4. The main issue was whether there was fixed tenancy or month to month tenancy. The trial Court in pare 8 of its .judgment considered this issue. The tenancy was created on 1.2.1975 for fixed term and it expired on 31.12.1995. The plaintiff filed Ext.6 agreement, admitted by the defendant. Both the parties equally relied on it. According to the defendant, the document shows monthly tenancy but according to the plaintiff it was for fixed term. Learned Addl. Munsif in para.8 of the judgment says that the tenancy was for a fixed period of 11 months. In para.9 of the judgment, learned Munsif held that the case of the defendant is that the plaintiff used to withhold the receipt of the last two months and after making new Sharkhat from the defendant the plaintiff used to realise old receipts. It was held that this statement had been made deliberately to meet Clause 3 of the agreement. In para 10 of the judgment it was held that no receipt for payment of rent of October, 1975 to December, 1975 was filed by the defendant. It was found that no rent for the month of October, 1975 was paid. In para 11 of the judgment, payment of rent for the month of November, 1975 was considered. As per agreement that rent was required to be paid by 3rd of every month but admittedly rent was not paid for the month of November, 1975 by 3rd of December, 1975. In para 11 of the judgment, payment of rent for the month of November, 1975 was considered. As per agreement that rent was required to be paid by 3rd of every month but admittedly rent was not paid for the month of November, 1975 by 3rd of December, 1975. Hence there was default in payment of rent for the month of October and November, 1975. In paras 12 to 16 of the judgment, evidence of defendants witness on payment of rent was disbelieved. In para 17 of the judgment default in payment of rent was accepted. In para 18 of the judgment personal necessity of the plaintiff was not accepted. The Munsif held that the case of the plaintiff has been proved on two grounds--expiry of period of tenancy and default in payment of rent. The case of personal necessity was not proved. 5. The learned Munsif decreed the suit. The tenant appealed against the decree. The 3rd Addl. Subordinate Judge, Siwan, decided the appeal on 21st November, 1984. The defendant assailed the judgment of the learned Addl. Munsif on the ground that according to the oral evidence of the defendant witnesses the payment of rent for the months of October, 1975 to December, 1975 was made by defendants in view of Ext. B/4, the rent receipt granted by the eldest son of the plaintiff Ganga Prasad collectively for the months of October, November and December, 1975. There is finding of the appellate court in para-9 of the judgment that the plaintiff Most. Jaleshwari Devi was named holder of the suit premises and the entire management of the household affairs including dealings with her tenants was done by her eldest son Ganga Prasad on her behalf. It was held that the defendant was not a new incumbent and is tenant in the suit premises as per Sarakhatnama Ext.6 and Ext. A. It was admitted that the defendant had been continuing in tenancy from the time of plaintiffs husband, who died only one or two years before creation of Ext. 6 and 6/A. It was also admitted by P.W. 11 that prior to this tenancy he used to realise Rs. 35.00 per month and his father used to realise Rs. 20.00 and Rs. 13.00 per month from the defendant. 6 and 6/A. It was also admitted by P.W. 11 that prior to this tenancy he used to realise Rs. 35.00 per month and his father used to realise Rs. 20.00 and Rs. 13.00 per month from the defendant. Learned Appellate Court accepted the case of the defendant and held that the defendant was running his photo framing shop for the last 25-26 years and the rent of the suit premises had been increased from time to time and now it was fixed at Rs. 50 per month. It was also held that the plaintiff or her son had tendency to increase the rent after a year or so and for this purpose such Sarakhatnama was created with the defendant for only 11 months. It was further held that if the defendant would have agreed for further increase in rent, another Sarakhatnama for the year 1976 would have come into existence. It was also held that it was clear case of month to month tenancy and Sarakhatnama Ext.6 was simply and eye-wash and tainted with legal rigours. 6. Learned Additional Subordinate Judge disbelieved the case of the plaintiff with aspect to fixed terms tenancy and held that the finding given by the learned Munsif on this point was quite erroneous. The appellate court accepted the case of the defendant that the plaintiff had adopted a practice to withhold granting of rent receipts for 2 to 3 months in the last phase of the year and demanding back previous receipts only to renew the tenancy next year with some increase in rent. It was held that the learned Munsif had discarded the oral evidence adduced on behalf of the defendant on most flimsy grounds which was not true. Learned Addl. Subordinate Judge held that the defendant was not defaulter in payment of rent and as such the judgment of the learned Munsif was set aside. 7. Learned appellate Court in my view has decided the appeal on extraneous consideration. The Appellate Court accepted the case of the defendant in respect of dubious conduct of the plaintiffs in withholding the receipt in the last phase of the year and demanding back previous receipts to renew the tenancy next year with some increase in rent. It cannot be said to be correct approach the appellate court was required to examine the document of lease. It cannot be said to be correct approach the appellate court was required to examine the document of lease. The only question for consideration is whether the lease was for a fixed period and expired on 31.12.1975. Under Sec. 11(1)(e) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, the landlord can seek eviction of the tenant in case of. tenant holding on a lease for a specified period, on the expiry of the period of the tenancy. 8. Learned appellate Court observed that it was a case of monthly tenancy on the basis of conduct of the parties. In Full Bench decision of this Court in Digamber Narain Chaudhary V/s. Commissioner of Trihut Division -- , tenancy was created for seven months on monthly rental of Rs. 55. After the expiry of the lease, the landlord served a notice on the tenant to vacate the house. The landlord applied before the Controller for eviction of the tenant on expiry of the lease. The Controller directed the tenant to vacate the house. On appeal the Additional Collector set aside the order of the Controller on the ground that the landlord had accepted the rent after the expiration of the lease and that amounted to the landlords assent to the continuance of the possession of the building by the tenant. The landlord moved, the Commissioner of Trihut Division. The Commissioner disagreed with the Additional Collector and held that the acceptance of rent after the service of the notice to quit did not entail waiver of the notice and did not provide a legal authority for continuance of possession. The Full Bench held that where the tenancy is not a monthly tenancy, the tenant is liable to eviction also on the expiration of the period of the tenancy. The Full Bench also decided that the Kirayanama which is an effective document of lease need not be registered. The Full Bench followed the Division Bench decision in the case of Om Prakash V/s. Addl Commissioner, Patna Division -- , in which decision it has been held that the Rent Control Act is complete Act by itself, not dependent upon any other Act for the purpose of working out the provisions contained therein. The Full Bench followed the Division Bench decision in the case of Om Prakash V/s. Addl Commissioner, Patna Division -- , in which decision it has been held that the Rent Control Act is complete Act by itself, not dependent upon any other Act for the purpose of working out the provisions contained therein. It was held that for the purpose of Bihar Act III of 1947 an unregistered lease also may be considered in order to determine whether it created a month to month tenancy or a tenancy for a specified period. The Full Bench held that an oral agreement of lease for less than a year accompanied by delivery of possession is legally valid. 9. In Ramswarup V/s. Budhdeo Sao AIR 1983 Pat 226, the tenant was in possession of the house on the basis of registered deed of lease for a fixed period of three years according to English calendar month, rent being Rs. 200.00 per month. The landlord brought a suit for eviction on the ground that the tenant had not paid rent for three months and had defaulted in payment of rent. The landlord claimed eviction on expiry of the lease. The tenants case was that he had paid advance rent to the landlord. The payment of advance rent is prohibited under the Act. It was held by this Court that no party can be permitted to retract from the contract. It was observed by this Court that once a tenancy for a fixed period is contracted to between the parties, the mode and manner of payment is not relevant for the purpose of determination of the tenancy at the end of the fixed term. 10. Learned appellate Court has not considered the pertinent aspect of this case whether the tenancy was for a fixed term and went on to decide the case on irrelevant consideration. The judgment of the appellate Court is not. in accordance with law. Accordingly, this appeal is allowed, judgment and order of the 3rd Addl. Subordinate Judge, Siwan dated 21.11.1984 in TA. No. 35/17 of 1982/1984 is set aside and the matter is remitted to appellate Court for fresh decision in accordance with law. The appeal must be decided within three months of receipt of this order. 11. However, there shall be no order as to costs.