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1999 DIGILAW 653 (PAT)

Ashok Kumar Banerjee v. Gopal Bhowmik

1999-07-27

M.Y.EQBAL

body1999
JUDGMENT M.Y.EQBAL, J.:- This appeal is by the plaintiff-landlord against the judgment and decree of the appellate court by which the judgment and decree passed by the trial court was reversed and the suit has been dismissed. 2. This appeal was admitted on the following substantial question of law: "(i) Whether a suit for eviction on the ground of default is maintainable for arrears of rent if respect of the period after the expiry of the period of limitation thereof; (ii) Whether the learned court of appeal has committed an error of law in reversing the finding of the learned trial court on the point of plaintiff's personal and bona fide requirement on the basis of surmises and conjectures. 3. It appears from the record that after admission notices were issued to the sole-respondent several times but the respondent did not appear and ultimately notice was served by publication in the newspaper but inspite of that none appears on behalf of the respondent. 4. The plaintiff-appellant filed title suit no. 81/83 for a decree of eviction of the defendant from the suit premises on the ground of default and personal necessity. Plaintiff's case is that the suit property was purchased by him by a registered deed of sale dated 28.4.67 and after purchase the defendant was recognised as a tenant. The defendant also admitted the plaintiff as owner/landlord and paid rent for the months, September to November, 1979, on 5.12.79. On 27.11.81 the plaintiff sent lawyer's notice to the defendant asking him to vacate the premises on the ground of non-payment of rent and personal necessity. 5. The defendant filed written statement denying and disputing the averments made in the plaint. The trial court framed as many as six issues including the issue of personal necessity and default. It decided all the issues in favour of the plaintiff and decreed the suit. 6. The defendant/respondent preferred title appeal no. 62/85. The appellate court reversed the findings of the trial court on the issue of default and personal necessity. 7. I will first proceed to consider the substantial question of law formulated in this appeal with regard to default. From perusal of the pleadings it appears that in para 4 of the plaint the plaintiff makes out a case that on 5.12.79 the defendant paid rent of Rs.135/- being the rent of September, October and November, 1979. 7. I will first proceed to consider the substantial question of law formulated in this appeal with regard to default. From perusal of the pleadings it appears that in para 4 of the plaint the plaintiff makes out a case that on 5.12.79 the defendant paid rent of Rs.135/- being the rent of September, October and November, 1979. Thereafter the defendant did not pay the rent for the subsequent months in spite of repeated demands. The suit was instituted on 27.6.83.The defendant in para 8 of the written statement has admitted that the plaintiff collected rent on 5.12.79 for three months i.e. for the months from September to November, 1979. Thereafter the plaintiff never came to collect the rent from the defendant. The defendant. however, could smell some mala fide intention for the first time in the early May of 1980 and then he sent rent for the month of December, 1979 to April, 1980 on 10.5.80 by Postal Money Order. It was argued before the trial court that since the suit was filed on 27.6.83, rent for the month December, 1979 to April, 1980 has become time barred and the rent for the said period cannot be said to be lawfully payable. The trial court rejected the contention of the defendant and held that decree for eviction can be passed for non-payment of rent for the period from December, 1979 to April, 1980 which was admittedly remitted on 10.5.80. 8. However, the appellate court relying upon a decision of a Bench of this court in the case of Sri Nand Gopal Prasad vs. Mostt. Premlata Devi and or reported in 1985 PLJR 923 held that time barred rent cannot be said to be lawfully payable and no decree for eviction can be passed on the ground of default having been committed by the tenant for non-payment of rent for the period which became barred. The said decision in Nand Gopal Prasad's case (supra) was subsequently considered by a Division Bench of this court in the case of Balbir Dutta vs. Ashish Kumar Mitra and ors. reported in 1991 (2) PLJR 373 where their lordships after following several decisions of the Supreme Court and other High courts have held that rent lawfully payable may not be lawfully recoverable. reported in 1991 (2) PLJR 373 where their lordships after following several decisions of the Supreme Court and other High courts have held that rent lawfully payable may not be lawfully recoverable. Even if recovery of the amount of rent becomes barred by limitation, it only means that it cannot be recovered by the process of law but such an amount does not become unlawful on the expiry of period of limitation. It was, therefore, held that a decree for eviction can be sustained in law on the ground of default in payment of rent for the period which was more than three years prior to the institution of the suit. The first substantial question of law formulated by this court is, therefore, decided in favour of the plaintiff/appellant and it is held that in view of the judgment rendered in Balbir Dutta's case (supra) findings arrived at by the appellate court on the issue of default cannot be sustained in law. 9. So far second question of law with regard to personal necessity of the appellant/plaintiff is concerned, it appears that the appellate court has analysed the findings of the trial court after re-appraising the entire evidences and came to a finding that admittedly after purchase of the house the plaintiff let out the first floor to another tenant who was examined as D.W.3.The appellate court, therefore, held that the plea of personal necessity has not been established and the same is not bona fide and in good faith. Since the findings arrived at by the appellate court is a finding of fact I do not find any reason to interfere with the same. 10. Having regard to facts and circumstances of the case and also in view of the findings arrived at by me on the question of default, the plaintiff is entitled to a decree for eviction on the ground of default in payment of rent. This appeal is, therefore, allowed. The finding of the appellate court on the issue of default is hereby reversed. Accordingly, the suit is decreed. However, there shall be no order as to costs.