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1999 DIGILAW 1009 (PAT)

Bishnu Kumar Agrawal v. Ganesh Prasad Gupta

1999-09-29

M.Y.EQBAL

body1999
Judgment 1. This civil revision application at the instance of the defendant is directed against the order dated 22.2.99 passed by Munsif, Ranchi in Eviction suit no. 65/95 by which he has directed the petitioner to deposit the arrears of rent amounting to Rs. 21,000/- and further current and future rent at the rate of Rs. 600/- per month on an application fifed by the plaintiff/opposite party under section 15 of the Bihar Building (Lease Rent and Eviction) Control Act (shortly the said Act). 2. The plaintiff-opposite party instituted the aforementioned suit for a decree of eviction of the defendant on the ground of expiry of fixed term lease and also on the ground of personal necessity. 3. The suit was contested by the defendant by filing written statement. 4. During the pendency of the suit the plaintiff/opposite party filed an application under section 15 of the said Act praying for an order directing the defendant to deposit the rent in terms of section 15 of the said Act. 5. The petitioner opposed the said application, inter alia, on the ground that the plaintiff had taken an advance of Rs.40,000/- from the petitioner on 28.11.90 which amount is being adjusted towards rent at the rate of 50% in each month. The petitioner also denied that monthly rent has not been paid since November, 1990. Petitioners case is that as per terms of the lease agreement the petitioner is entitled to adjust 50% of the rent i.e. Rs.300/- per month till the whole amount of Rs.40,000/- is adjusted. 6. The court below, after hearing the parties, passed the impugned order directing the defendant to deposit arrears of rent at the rate of Rs.600/- per month till the disposal of the suit. 7. I have heard Mr. N.R.Sinha, learned counsel for the petitioner. None appears on behalf of the opposite party. 8. From perusal of the impugned order it reveals that the case of the defendant regarding payment of Rs.40,000/- already advanced and adjustment of the same at the rate of Rs. 300/- per month, has not been denied or disputed. 7. I have heard Mr. N.R.Sinha, learned counsel for the petitioner. None appears on behalf of the opposite party. 8. From perusal of the impugned order it reveals that the case of the defendant regarding payment of Rs.40,000/- already advanced and adjustment of the same at the rate of Rs. 300/- per month, has not been denied or disputed. For better appreciation the relevant portion of the impugned order is quoted hereinbelow: "It is also submitted on behalf of the defendant that cash receipt (Ext.A), the plaintiff had agreed that a sum of Rs.300/- out of monthly rent of Rs.600/- shall be paid in cash and remaining monthly rent of Rs.300/- shall be adjusted towards a sum of Rs.40,000/- taken by plaintiff as advance. It is submitted that this arrangement was according to the term of lease. It is further submitted that a sum of Rs.18,000/- was adjusted out of Rs.40,000/- for the period of five years and a sum of Rs.22,000/- remained with the plaintiff and this sum is also required to be adjusted towards monthly rent and this fact is admitted by the plaintiff in paras 46 and 48 of cross examination and on these submissions the defendant has prayed to dismiss the petition u/s 15 of BBC Act filed by the plaintiff. The defendant has filed PLJR 52 1999. Heard and perused the record. The allegation and counter allegations levelled in the petition and its rejoinder are the matters to be decided at the time of final hearing and judgment of suit. But, for the present when the petition u/s 15 of the Act has been filed by the plaintiff and it is admitted fact that defendant is tenant under the plaintiff on the basis of lease deed which has been expired and when rent has not been paid by the defendant, the plaintiff is entitled for the arrears of rent." 9. In view of the admitted fact that the defendant was entitled to adjust 50% f the rent i.e. Rs.300/- per month till the entire amount of Rs.40,000/- is adjusted, the court below has committed serious illegality in directing the defendant to eposit the entire arrears of rent at the rate of Rs.600/- per month. Section 15 of the said Act reads as under:- "15. Deposit of Rent by tenants in suits for ejectment. Section 15 of the said Act reads as under:- "15. Deposit of Rent by tenants in suits for ejectment. (1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit or order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the court after giving opportunity to the parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before and after the institution of the suit, if any and on failure of the tenant to deposit the arrears of rent within 15 days of the date of order or the rent at such rate for any month by the 15th day of the next following month, the court shall order the defence against ejectment to be. struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the court shall not allow the tenant to cross examine the landlords witnesses. (2) If in any proceeding referred to in sub-section (1) there is any dispute as to the person or persons to whom the rent is payable, the court may direct the tenant to deposit in court the amount payable by him under sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the court decides the dispute and makes an order for payment of the same. (3) If the court is satisfied that any dispute referred to in sub-section (2) has been raised by a tenant for reasons which are false or frivolous the court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section (1). 10. From perusal of the aforesaid provisions, it is manifest that court can direct the tenant to deposit the rent at the rate at which it was last paid. 10. From perusal of the aforesaid provisions, it is manifest that court can direct the tenant to deposit the rent at the rate at which it was last paid. This question is no longer res Integra in view of the decision of the Full Bench in the case of N.M.Verma V/s. Upendra Narain Singh reported in 1977 BBCJ 662 : 1978 PLJR 32 which was followed in a subsequent decisions in the case of Gopal Gupta alias Shyam Sunder Gupta and anr. V/s. Smt. Sitara Dutta and anr. reported in 1979 BLJR, 499 and in the case of Smt. Bidhotama Devi V/s. Sri Deoki Sao and anr. reported in 1985 PLJR 444. 11. As noticed above, although monthly rent payable by the defendant to the plaintiff in respect of the tenanted premises was Rs.600/- but the defendant admittedly has been paying Rs.300/- per month and the balance of Rs.300/- was being adjusted against the advance of Rs.40,000/- which was taken by the plaintiff from the defendant. In that view of the matter the court below ought to have directed the defendant to deposit arrears of rent as also the current and future rent at the rate of Rs.300/- per month till the entire advance is adjusted. Thus the impugned order cannot be sustained in law. 12. This civil revision application is, accordingly, allowed and the impugned order passed by the court below is set aside. It is held that the defendant-petitioner shall deposit the arrears of rent from November, 1995 at the rate of Rs.300/- and also the current and future rent at the same rate till the amount of Rs.40,000/- is adjusted and, thereafter the defendant/petitioner shall go on paying Rs.600/- per month. The arrears of rent must be deposited within one month from today and the monthly rent shall be paid by the 15th of the next following month.