Pawan Kumar v. Rameshwar Prasad Singh — 1997 DIGILAW 910 (PAT)

JUDGMENT R. N. Prasad, J. Both the appeals arise out of common judgment and decree, similar questions of law are involved in these appeals, they have been heard together and are being disposed of by this judgment. 2. Both these appeals have been filed against the judgment and decree dated 12.7.1994 passed by 3rd Addl. District Judge, Patna in Title Appeal No. 3/94 and Title Appeal No. 4/94 reversing tile judgment and decree dated 13.12.1993 passed by Munsif 3rd, Patna in Eviction Suit No. 1/92 and Eviction Suit No. 2/92 respectively. In both the suits the plaintiff was Rameshwar Prasad Singh and he filed eviction suit on the ground of default in payment of rent. In Title Suit No. 1/92 the defendant was Pawan Kumar and in Title Suit No. 2/92 the defendant was Ram Bali Thakur. 3. The case of the plaintiff was that he purchased holding no. 40/B situated at Fraser Road, P. S. Kotwali, District Patna by a registered sale deed dated 29.10.1977 from one Alakh Bihari Lal. The defendants were tenants of the vendor of the plaintiff. After purchase the vendor of the plaintiff informed the tenants including the defendants with regard to purchase of the suit premises by the plaintiff and requested them to pay the rent to the plaintiff. They were monthly tenants and were paying rent to the vendor of the plaintiff. After purchase they paid rent to the plaintiff but later on in collusion with the co-sharers of vendor of the plaintiff they stopped payment of rent to the plaintiff. One Sidheshwar Saran Lal and others filed Title Suit No. 101/78 against the plaintiff for declaration of right, title and interest over the suit premises and cancellation of the sale deed executed by Alakh Bihari Lal in favour of the plaintiff. The said Title Suit No. 101/78 was dismissed on 16.2.1983. During pendency of the aforesaid suit the defendants filed a petition before the House Controller for a direction to whom the rent was payable. On the said petition BBC Case No. 372/78 was registered. The House Controller directed the tenants to deposit the rent in the Treasury till the disposal of aforesaid Title Suit No. 101/78. After dismissal of the aforesaid Title Suit the defendants paid rent to the plaintiff through Money order but again they stopped payment of rent. 4. On the said petition BBC Case No. 372/78 was registered. The House Controller directed the tenants to deposit the rent in the Treasury till the disposal of aforesaid Title Suit No. 101/78. After dismissal of the aforesaid Title Suit the defendants paid rent to the plaintiff through Money order but again they stopped payment of rent. 4. The plaintiff filed Eviction Suit No. 84/84 against Pawan Kumar, and Eviction Suit No. 86/84 against Ram Bali Thakur on the ground of personal necessity. The plaintiff also filed Eviction suit against other tenants on the same ground of personal necessity. During pendency of the suit the rent of the suit premises was determined by the House Controller. The eviction suits filed by the plaintiff were decreed vide judgment and decree dated 28.2.1989. The defendants preferred Civil Revision Nos. 744/89 and 748/89 which were dismissed on 23.3.1990. The defendants and other tenants challenged the judgment and decree before the Supreme Court in Civil Appeal nos. 421, 422 and 423 of 1991. All the Civil Appeals were disposed of by common order on 29.1.1991 with the consent of the parties. The Apex Court while disposing of Civil Appeals directed the tenants to deposit the arrears of rent up to date before the Rent Controller within six months as determined by the House Controller failing which the landlord will get the right to execute the decree for eviction as against the defaulting tenants and they shall continue to pay the current rent so long as they continue in old premises. 5. The defendant did not pay the current rent to the plaintiff from the month of January, 1991 and on wards. He was not aware either of deposit of rent due or payment of current rent. He filed an application in Execution Case No. 5/90 stating that defendants had not deposited arrears of rent nor had paid current rent and as such delivery of possession of the suit premises should be effected. The defendants filed photo copy of Challan showing deposit of arrears of rent in the Treasury and also current rent from the month of January, 1991 to July, 1991. The plaintiff opposed the deposit of current rent from the month of January, 1991 onwards. The petition filed by the plaintiff, however, was rejected by the executing court. The defendants filed photo copy of Challan showing deposit of arrears of rent in the Treasury and also current rent from the month of January, 1991 to July, 1991. The plaintiff opposed the deposit of current rent from the month of January, 1991 onwards. The petition filed by the plaintiff, however, was rejected by the executing court. However, the defendants did not pay rent after July, 1991, Even if any deposit has been made in the Treasury towards the rent, the same cannot be legal and valid payment of rent in the eyes of law as there was no such agreed mode of payment of rent and as such the defendant are defaulter in payment of rent and are liable to be evicted from the suit premises. 6. The case of the defendants was that they were not knowing purchase of the suit house by the plaintiff. Therefore, they had bona fide doubt about the right of the plain tiff to realize rent. They filed B. B. C. Case no. 372/78 before the House Controller for a direction to whom the rent was payable and as per direction of the House Controller they were depositing the rent in the Treasury. The Judgment and decree of the trial court was challenged, the litigation went up to the Supreme Court of India in Civil Appeal nos. 421, 422 and 423 of 1991 which were disposed of on 29.1.1991. They deposited the arrears of rent and also current rent till December, 1992 before the House Controller as per the direction of the Supreme Court. Therefore, they were not defaulter. They never paid lent to the plaintiff' directly and as such they are not liable to be evicted from the suit premises. 7. The trial court accepted that there was relation ship of landlord and tenant between the parties but held that defendants were not defaulter in payment of rent and, accordingly, dismissed the suit. On appeal by the plaintiff the appellate court held that deposit of current rent before the House Controller through challan is not valid payment of rent under the law nor payment as per the direction of the Supreme Court and, accordingly, set aside the judgment and decree of the trial court and allowed the appeal. 8. On appeal by the plaintiff the appellate court held that deposit of current rent before the House Controller through challan is not valid payment of rent under the law nor payment as per the direction of the Supreme Court and, accordingly, set aside the judgment and decree of the trial court and allowed the appeal. 8. The question for determination arises in the case is whether deposit of rent in the Treasury is valid payment of rent and the findings of the appellate court that the defendants are defaulter vitiate in view of the finding of the appellate court that rent already deposited by the defendants in the Treasury has been withdrawn by the plaintiff. 9. It is manifest from the material on record that the plaintiff-respondent initially had filed Title Suit Nos. 84/84 and 86/84 against the defendants-appellants for their eviction from the suit premises on the ground of personal necessity. The suit was decreed however, the litigation went up to the Supreme Court and the Apex Court with the consent of the parties disposed of the Civil Appeals on 29.1.1991. The relevant portion of the order is as follows: "The tenants shall deposit the arrears of rent up to date before the Rent Controller within six months as already determined by the House Rent Controller, failing which the landlord will get the right to execute the decree for eviction as against the defaulting tenant. Needless to state that they shall continue to pay the current rent so long as they continue in the old premises." 10. The order of the Apex Court is in two parts. The first part of the order is with respect to arrears of rent and direction was given to deposit the arrears of rent up to date before the House Controller within six months as already determined by the House Controller failing which landlord would get the right to execute the decree for eviction against the defaulting tenant. The second part of the order was with respect to current rent and direction was given to pay the current rent so long as they continue in the old premises. The plaintiff filed an application in the execution case for effecting delivery of possession as the defendants failed to deposit the arrears of rent and pay the current rent. The defendants filed Challan in the execution case showing deposit of rent in the Treasury. The plaintiff filed an application in the execution case for effecting delivery of possession as the defendants failed to deposit the arrears of rent and pay the current rent. The defendants filed Challan in the execution case showing deposit of rent in the Treasury. The executing court rejected the petition. 11. The plaintiff, thereafter, filed the present suits against the defendants for eviction on the ground of default in payment of rent stating therein that the mode of payment of current rent was determined by the Apex Court but the defendants did not pay the current rent since January, 1991. The deposit or rent as claimed by the defendants is not mode of payment of rent under the Bihar Buildings (lease, rent and eviction) Control Act nor there was any such agreement between the parties. The mode of payment of current rent was determined by the Apex Court and as such defendants are defaulter in payment of rent in the eyes of law. The defendants disputed the claim of the plaintiff and contended that they deposited the rent in the Treasury as per the order of the Apex Court and as such they are not defaulter in payment of rent. The counsel for the parties reiterated the stand as indicated above in their argument. 12, In this regard it would not be out of place to mention herein that deposit of rent in the Treasury is not a normal mode of payment of rent rather tender of rent hand to hand to the landlord is normal mode of payment of rent. In this regard Section 19 of Bihar Buildings (lease, rent & eviction) Control Act is relevant which reads as follows: 19. 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. (3) Where any bona fide doubt of dispute has arisen as to the person who is entitled to receive any rent in respect of any building, the tenant may deposit such rent in the prescribed manner, stating the circumstances under which such deposit is made and, may until such doubt has been removed or such disputes has been settled by the decision of any competent Court or by settlement between the parties, continue to deposit in like manner, the rent that may subsequently become due in respect of such building. 13. It is evident from the aforesaid provisions that in case the landlord refuses to accept the rent the tenant is required to remit the rent through Money order and in case where any bona fide dispute arises as to who is entitled to receive the rent then the tenant may deposit such rent in prescribed manner until such dispute is settled. In the instant case there was no claim of the defendants that they tendered rent band to hand. Moreover, in the instant case the mode of payment of current rent was determined by the Apex Court and it was directed that the tenants shall continue to pay the rent so long as they continue in the old premises. The defendants claimed that they deposited the rent of the suit premises in Treasury as per order of the Apex Court but it is evident that no such order was made by the Apex Court to deposit the current rent in the Treasury rather it is in unambiguous terms that defendants were directed to pay current rent. 14. Therefore, I find no hesitation in holding that deposit of rent in the Treasury by the defendants is not valid mode of payment of rent either under the Bihar Buildings (lease, rent & eviction) Control Act oars per the order of the Apex Court. 15. In the case of Ram Sewak-v-Munna Lal, A. I. R. 1988 Supreme Court-452, the Apex Court while dealing with similar situation under U. P. (Temporary) Control of Rent and Eviction Act has held that there can be no doubt that, by Virtue of Section 7-C (6) a deposit properly and justifiably made under Section 7-C would be deemed to be a payment of rent to the landlord himself. Once there is a proof of a valid deposit, then there can be no eviction of the tenant under Section 3 (1) (a) since the section equates such a deposit to a payment to the landlord, thus neatening the existence of any arrears of rent or any willful default. But, at the same time it is necessary for the courts to ensure that the tenants do not resort to the provisions of Section 7-C merely to harass the landlord. In the case of Sadanand Dass-v-Md. Hussain and another. AIR 1987 Supreme Court-513, the Apex Court while dealing with the Bihar Buildings (lease rent and eviction) Control Act did not interfere with the finding of the trial court that payment of rent in the Treasury was not valid payment of rent in absence of any contract or order of the court. In the case of Madhusudan Prasad Agarwal-v-Shrimati Shusama Bala Dasi and another, 1978 P. L. J. R-614 a Division Bench of this Court also considered such situation. In the abovementioned case rent was deposited by the tenant and it was argued that plaintiffs were at liberty to withdraw the amount of rent for the period in question. The Court on consideration held that such course of realization of rent is not contemplated under the Bihar Buildings (lease, rent & eviction) Control Act and possibility of realizing rent in the aforesaid manner cannot be a valid defence. 16. Thus on consideration as discussed above, it is manifest that mode of payment of current rent was fixed by the Apex Court but the defendants-appellants ignored the direction and deposited the rent in the Treasury. There was no such agreed mode of payment between the parties. Therefore, I find no hesitation in holding that deposit of rent in the Treasury by the defendants was not valid payment of rent either under the Bihar Buildings (lease, rent & eviction) Control Act or as per the order of the Apex Court. Thus the finding of the appellate court that the defendants-appellant are defaulter does not require any interference. 17. It is needless to say that it is well established that once the default has occurred mere acceptance of rent of the defaulted period by the landlord subsequently would not amount to waiver of the right of the landlord for ejectment. Thus the finding of the appellate court that the defendants-appellant are defaulter does not require any interference. 17. It is needless to say that it is well established that once the default has occurred mere acceptance of rent of the defaulted period by the landlord subsequently would not amount to waiver of the right of the landlord for ejectment. In this regard reference may be made to a Full Bench decision in the case of Raj Kumar Prasad-v- Uchit Narain Singh, 1980 P.L.J.R.-195. Thus even the plaintiff accepted the rent of the defaulted period subsequently the same cannot stand in the way of the plaintiff in maintaining suit for eviction on the ground of default in payment of rent. 18. Thus on consideration as discussed above, I do not find any merit in these appeals. Accordingly, both the appeals are dismissed but without cost. Both Appeals dismissed.