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2000 DIGILAW 187 (PAT)

B. D Costa v. Associated Construction Co. Ltd.

2000-02-03

A.K.SINHA, NAGENDRA RAI

body2000
Judgment Nagendra Rai, J. 1. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the judgment and decree dated 19.3.1991, passed by a learned Single Judge of this court in First Appeal No. 128 of 1985(R), by which he has allowed the appeal in part and set aside the judgment and decree dated 31.8.1985, passed by the 2nd Additional Subordinate Judge, Jamshedpur, in Title Suit No. 79/1 of 1980-84, by which the trial court has decreed the suit for eviction of the defendant- respondent from the suit premises and for realisation of the amount being arrears of occupational charges. The learned Single Judge upheld the decree for realisation of the arrears of the occupational charges but set aside the decree for eviction passed by the trial court. 2. The case of the plaintiff-appellant, in brief, is that it is a registered partnership firm carrying on Hotel business at D Costa Mansion, Bistupur, in the town of Jamshedpur in the name and style of "Boulevard Hotel". It has taken the first floor of the said Mansion on rent. There are 14 rooms in the first floor of the said Hotel for providing accommodation to persons desiring the same, for which the occupational charges per day are payable. The rooms are provided with attached lavatory with W.C. Each room is provided with light, fans and in some of the rooms, air-conditioners are also fitted. Each room is furnished according to the daily occupational charges leviable for the room. The plaintiff had its hired servants and maid servants for sweeping and cleaning of the rooms, passages, stair-case etc., which are included within the hotel premises and maintenance of rooms, passages and stair-case are done by the plaintiff. The entrance to the hostel is by a stair- case facing the main road with a sign-board in front of the entrance giving the name of the hotel and similar type of the board is also displayed just at the starting of the steps of the stair-case with the words "Boulevard Hotel Entrance". A notice-board is also fitted at the main entrance With the words "Right of Admission is reserved" inscribed on it. A notice-board is also fitted at the main entrance With the words "Right of Admission is reserved" inscribed on it. There is a collapsable gate and roiling shutter at the entrance of the hotel, where a watchman is stationed by the plaintiff to keep control over the entry and exit of the persons permitted to have accommodation. The main-gate of the hotel is opened at 5.30 A.M. and 6 A.M. in the summer and winter, respectively and it remains opened till 10 P.M. Thereafter, the gate is closed, except in cases of emergency, the same is opened on the request of the persons having accommodation therein. The supply of electricity and water to the rooms in occupation of the persons is exclusively under the control of the plaintiff and the permitted occupiers can only use dim light after 11 0 clock in the night. There is a Manager to lookafter the affairs of the hotel. There is a counter at the first floor just at the point where the stair-case terminates and there a Receptionist remains on duty from 6 A.M. to 10 P.M. The occupiers are required to follow the instructions of the hotel and the instruction- sheets have been kept in all the rooms. The defendant-respondent with the leave and licence of the plaintiff occupied rooms no.2 and 3 on a daily occupational charge of Rs. 6/- for each room. Defendant-respondent defaulted in payment of occupational charges from 1.9.1979. The plaintiff also required the aforesaid rooms for modification thereof and lavatories. The plaintiff also requested the defendant orally as well as in writing to give vacant possession of the rooms, but the defendant-respondent refused to do the same. It is further stated that some modifications were made in the aforesaid two rooms and the daily occupational charges were increased from Rs. 6/- per day per room to Rs. 35/- for each room with effect from 9.5.1980. The defendant was also in arrears of the occupational charges with effect from 1.9.1979 at the rate of Rs. 6/- per room up to 8.5.1980 and at the rate of Rs. 35/- for each room from 9.5.1980 to 16.8.1980 and a sum of Rs. 10,012/- was due from the defendant on account of occupational charges of the aforesaid two rooms. The plaintiff sent a notice on 31.8.1979 to give vacant possession of the aforesaid rooms. 6/- per room up to 8.5.1980 and at the rate of Rs. 35/- for each room from 9.5.1980 to 16.8.1980 and a sum of Rs. 10,012/- was due from the defendant on account of occupational charges of the aforesaid two rooms. The plaintiff sent a notice on 31.8.1979 to give vacant possession of the aforesaid rooms. Inspite of service of notice, the defendant did not vacate the rooms, on the other hand sent a reply to the notice with false and frivolous allegations and hence the plaintiff preferred the suit with a prayer that the vacant possession of the said two rooms be given to him and a decree for arrears of occupational charges be also passed against the defendant- respondent. 3. The defendant-respondent contested the suit. Its defence, in brief, is that D Costa Mansion is a double storeyed building, the whole of which is known as Boulevard Hotel. During the second world war, the said building was used as a hotel. After the termination of the war, there was a slump in hotel business and the hotel authorities wanted to induct monthly tenants on the long term basis both in the ground floor as well as in the first floor of the building. 4. The defendants stand is that it is not a licensee rather it is a tenant having been inducted 25 years back on a daily rate of rent of Rs. 6/- only per room. The mode of payment of rent was through the crossed cheque on the basis of monthly bills to be submitted by the plaintiff on the expiry of each English Calendar Month. The time, when the defendant was inducted as tenant in rooms no.2 and 3, the hotel was not in its present thriving state. After the termination of the second world war, as stated above, the hotel was struggling and there was a slump in the hotel business and as such the plaintiff wanted a tenant on a long term basis and as such the defendant was inducted as tenant in the two rooms and the defendant was not occupier thereof. It is further slated by the defendant that it is using the rooms for office purpose from the very beginning i.e. 1956 on a rate of rent inclusive of electricity and water charge which has remained static during the entire period. The hotel has not provided any furniture. It is further slated by the defendant that it is using the rooms for office purpose from the very beginning i.e. 1956 on a rate of rent inclusive of electricity and water charge which has remained static during the entire period. The hotel has not provided any furniture. The defendant has got their own furniture and telephone and there is no limit to the defendants right to use electricity or water nor is there any instruction-sheet hung-up in the suit rooms. It is further stated that the rent up to month of August, 1979, was duly paid on the submission of the bill by the plaintiff-appellant. Thereafter, the plaintiff decided- to evict the defendant and served a notice on 31.8.1979 asking it to quit the suit premises by 30.9.1979, describing it as a licensee. After September, 1979, the plaintiff started submitting the bills fortnightly, though it was earlier sending the bills monthly, with a view to create evidence that the defendant is not monthly tenant. Again the plaintiff started sending the bills weekly. However, the defendant started making the payment of the bills monthly by cheque, which were refused by the plaintiff putting objection to the term rent used in the forwarding letters of the defendant- respondent. From 9.5.1980, the plaintiff started making demand of Rs. 35/- per day for each room though there was no contract for enhancement of the rent between the parties. The existing law did not permit the plaintiff to increase the rent, which is in contravention of the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act (for short the Control Act). When the plaintiff refused to accept the rent through cheque, the defendant started sending the rent by money order and as such there is no default in payment of rent. 5. Both the parties adduced oral and documentary evidence and the trial court held that the defendant is a licensee of the suit rooms and is not a tenant. The trial court further held that even it the defendant-respondent is treated as tenant, it has defaulted in payment of rent for more than two months and, is, thus, liable for eviction in terms of the provisions of the Control Act. The trial court also held that the plaintiff is not entitled to increase the daily occupational charges for the suit rooms from Rs. 6/- for each room to Rs. The trial court also held that the plaintiff is not entitled to increase the daily occupational charges for the suit rooms from Rs. 6/- for each room to Rs. 35/- for each room and as such was not entitled to the arrears on that account from 9.5.1980 to 16.8.1980, total being Rs. 4,212/-. The appellate court, as stated above, set aside the decree in part. 6. Learned counsel for the appellant submitted that the respondent is a licensee and not a tenant and the learned Single Judge has erred in law in holding that the respondent is a tenant. He also submitted that even if the respondent is treated as tenant, the finding arrived at by the learned Single Judge that there was no default of payment of rent for more than two months is against the evidence on record. The evidence on record clearly shows that the respondent has defaulted in payment of rent for more than two months and, thus, liable for eviction in terms of the provision of section 11(1)(d) of the Act. 7. Learned counsel appearing for the respondent, on the other hand, submitted that the learned Single Judge has rightly come to the conclusion that the respondent was not a licensee, but a tenant and he has not made default in payment of rent for two months and as such is not liable to eviction in terms of the provisions contained in section 11(1)(d) of the Act. 8. Two questions arise for consideration in this appeal, firstly as to whether a lease or a licence was created? In other words whether the respondent is a lessee (tenant) or a licensee and secondly in case a lease was created and the respondent became a tenant in terms of the provisions of the Control Act, then whether there was a default in payment of rent for two months or not? In case it was proved that there was a default in payment of rent, then the respondent was liable to eviction under section 11(1)(d) of the Control Act, 9. To decide the question as to whether a lease or a licence has been created, the real test is the intention of the parties. When there is a document and the same in unambiguous, the intention has to be inferred from the said document and in that case, it is not necessary to travel to the attending circumstances. To decide the question as to whether a lease or a licence has been created, the real test is the intention of the parties. When there is a document and the same in unambiguous, the intention has to be inferred from the said document and in that case, it is not necessary to travel to the attending circumstances. However, when the document is a camouflage, then its nature is to be proved with a view to find out the true intention of the parties and purpose of the document. If there is no written document creating a lease or licence, then the intention of the parties has to be gathered from their conduct and other attending circumstances available on the record. In absence of written document, if the person is in exclusive possession, then the said possession would be a relevant circumstance to arrive at a conclusion that the intention of the parties was to create a lease. 10. The lease has been defined under section 105 of the Transfer of Property Act and the licence has been defined under section 52 of the Indian Easements Act. The distinction between a lease and licence came up for consideration before the Apex Court in several cases. No useful purpose will be served by multiplying judgment after judgment. I will refer to only some of such cases. 11. In the case of Associated Hotels of India Ltd. vs. R.N. Kapoor, reported in AIR 1959 Supreme Court 1262, the Apex Court pointed out the distinction between lease and licence in paragraph no. 27, which is quoted hereunder: "There is a marked distinction between a lease and a licence. S. 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. S. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the lease hold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. A lease is therefore a transfer of an interest in land. The interest transferred is called the lease hold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas S. 52 of the Indian Easements Act defines a licence thus: "Where one person grants to another, or to a definite number of other persons, a right to do or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one estate it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington vs. Errington, 1952-1 All ER 149, wherein Lord Denning reviewing the case on the subject summarises the result of his discussion thus at p. 155 : "The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy." The Court of Appeal again in Cobb v. Lane, 1952-1 Ail ER 1199, considered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At P. 1201, Somervell L. J., stated : ".......the solution that would seem to have been formed is, as one would expect, that it must depend on the intention of the parties." Denning L.J. said much to the same effect at P. 1202: "The question in all these cases is one of the intention; Did the circumstances and the conduct of the parties show that all that was intended was that the occupier should have a personal privilege with no interest in the land?" The following propositions may, therefore, be taken as well-established: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties-whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but if it only permits another to make use of property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document, a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is not possible to hold that the document is one of licence. Certainly it does not confer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the control and free from the directions of the appellant. The covenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the consent of the appellants, is destructive of any theory of licence. The solitary circumstance that the room let out in the present case or situated in a building wherein a hotel is run cannot make any difference in the character of the holdings. The intention of the parties is clearly manifest and the clever phraseology used or the ingenuity of the document-writer hardly conceals the real intent. I, therefore, hold that under the document, there was transfer of a right to enjoy the two rooms and, therefore, it created a tenancy in favour of the respondents." 12. The intention of the parties is clearly manifest and the clever phraseology used or the ingenuity of the document-writer hardly conceals the real intent. I, therefore, hold that under the document, there was transfer of a right to enjoy the two rooms and, therefore, it created a tenancy in favour of the respondents." 12. Again in the case of Rajbir Kaur vs. S. Chokesiri and Co., reported in (1989) 1 SCC 19 , the judgment in Association of India Limiteds case (supra) was followed and in paragraph 22 thereof, it was held as follows: "It is essential to the creation of a tenancy that the tenant be granted the right to the enjoyment of the property and that, further the grant be for consideration. While the definition of lease in Section 105 of the Transfer of Property Act, 1882, envisages the transfer of a right to enjoy the property, on the other hand the definition of a licence under Section 52 of the Indian Easements Act, 1882, consistently with the above, excludes from its pale any transaction which otherwise, amounts to an "easement" or involves a transfer of an interest in the property, which is usually involved in the case of an interest in the property, which is usually involved in the case of a transfer of right to enjoy it. These two rights, viz. easements and lease in their very nature, are appurtenant to the property. On the other hand, the grant only for the right to use the premises without being entitled to the exclusive possession thereof operates merely as a licence. But the converse implications of this proposition need not necessarily and always be true. Wherever there is exclusive possession, the idea of a licence is not necessarily ruled out. English law contemplates what are called Possessory Licences which confer a right of exclusive possession, marking them off from the more usual type of licences which serve to authorise acts which would otherwise be trespasses. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. Thus exclusive possession itself is not decisive in favour of a lease and against a mere licence, for, even the grant of exclusive possession might turn out to be only a licence and not a lease where the grantor himself has no power to grant the lease. In the last analysis the question whether a transaction is a lease or a licence "turns on the operative intention of the parties" and that there is no single, simple litmus test to distinguish one from the other. The "solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties." 13. Recently in the case of Delta International Ltd. vs. Shyam Sundar Ganeriwalla, reported in (1999) 4 SCC 545 , the Apex Court relying upon the aforesaid two cases and taking into consideration other cases, held in paragraph 16 as follows: "(1) To find out whether the document creates a lease or a licence the real test is to find out "the intention of the parties"; keeping in mind that in cases where exclusive possession is given, the line between a lease and a licence is very thin. (2) The intention of the parties is to be gathered from the document itself. Mainly, the intention is to be gathered from the meaning and the words used in the document except where it is alleged and proved that the document is a camouflage. If the terms of the document evidencing the agreement between the parties are not clear, the surrounding circumstances and the conduct of the parties have also to be borne in mind for ascertaining the real relationship between the parties. (3) In the absence of a written document and when somebody is in exclusive possession with no special evidence how he got in, the intention is to be gathered from the other evidence which may be available on record, and in such cases exclusive possession of the property would fee the most relevant circumstance to arrive at the conclusion that the intention of the parties was to create a lease. (4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. (4) If the dispute arises between the very parties to the written instrument, the intention is to be gathered from the document read as a whole. But in cases where the landlord alleges that the tenant has sub-let the premises and where the tenant in support of his own defence sets up the plea of a mere licensee and relies upon a deed entered into, inter se, between himself and the alleged licensee, the landlord who is not a party to the deed is not bound by what emanates from the construction of the deed; the tenant and the sub- tenant may jointly set up the plea of a licence against the landlord which is a camouflage; in such cases, the mask is to be removed or the veil is to be lifted and the true intention behind a facade of a self-serving conveniently drafted instrument is to be gathered from all the relevant circumstances. Same would be the position where the owner of the premises and the person in need of the premises executes a deed labelling it as a licence deed to avoid the operation of rent legislation. (5) Prima facie, in the absence of a sufficient title or interest to carve a similar tenancy by the sitting tenant in favour of a third person, the person in possession to whom the possession is handed over cannot claim that the subtenancy was created in his favour; because a person having no right cannot confer any title of tenancy or subtenancy. A tenant protected under statutory provisions with regard to occupation of the premises having no right to sub-let or transfer the premises, cannot confer any better title. But, this question is not required to be finally determined in this matter. (6) Further lease or licence is a matter of contract between the parties. Section 107 of the Transfer of Property Act, 1882, inter-alia, provides that leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. Section 107 of the Transfer of Property Act, 1882, inter-alia, provides that leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession; if it is a registered instrument, it shall be executed by both the lessee and the lessor. This contract between the parties is to be interpreted or construed on the well-laid principles for construction of contractual terms, viz., for the purpose of construction of contracts, the intention of the parties is the meaning of the words they have used and there can be no intention independent of that meaning; when the terms of the contract are vague or having double intendment, one which is lawful should be preferred; and the construction may be put on the instrument perfectly consistent with his doing only what he had a right to do." 14. Thus, it is clear that to decide the question as to whether a lease has been created or a licence, the true intention of the parties has to be found out and no simple litmus test to distinguish one from the other is available. That depends upon the facts and circumstances of each case. If a document creates an interest in the property, it is a lease and if it permits to make use of the property of which the legal possession continues with the owner, then it is a licence. 15. The facts of this case have to be considered to find out as to whether a lease or a licence was created in favour of the defendant-respondent. It is an admitted fact that two rooms i.e. rooms no.2 and 3 are part of the hotel. It is also an admitted fact that no agreement was arrived at between the parties on the question of letting out two rooms in question. D.W.2, who is the owner of the respondent, has admitted that the monthly rent for the suit premises was not fixed. The payment has been made according to the days of the month. In other words, if the month is of 28 days, the payment has been made for 28 days and if the month is of 31 days, then payment has been made for 31 days. The amount payable was Rs. 6/- per day for each room. The payment has been made according to the days of the month. In other words, if the month is of 28 days, the payment has been made for 28 days and if the month is of 31 days, then payment has been made for 31 days. The amount payable was Rs. 6/- per day for each room. P.W. 2, the partner of the plaintiff, stated in his evidence that there is an entrance of the hotel facing main-gate and a sign-board is hanging showing "Boulevard Hotel". There is another sign-board at the entrance of the hotel depicting Rights to Admission is reserved. He further stated that all the rooms are furnished with furniture in the hotel and attached with rooms and there are also fan and light in each room. Each room has attached toilet and W.C. The cleaning facilities are provided by the plaintiff. He also stated that there is a flexible and collapsable gates at the entrance of the hotel and a Choukidar remained posted at the gate. The door of the hotel remains open from 5.30 A.M. in the summer and 6 A.M. in the winter and the same is closed at 10 P.M. After that, it is opened by the Choukidar on the request of the boarders. The Manager looks after the affairs of the hotel. He also stated that the electric and water supply in both the rooms are made by the hotel management. D.W.2, the owner of the respondent, has not denied the aforesaid fact in his evidence. He has only stated that he has a separate telephone number. The keys of both the rooms remained with him. He has admitted in his cross-examination that rooms no,1 and 4 are occupied by the daily boarders. He also admitted that though he was in possession of the said rooms since 1956, but the telephone connection was taken in 1970. 16. As there is no written agreement between the parties, the intention has to be gathered from the oral evidence and the documents. He also admitted that though he was in possession of the said rooms since 1956, but the telephone connection was taken in 1970. 16. As there is no written agreement between the parties, the intention has to be gathered from the oral evidence and the documents. The learned Single Judge while coming to the conclusion that a lease and not the licence was created, relied upon the fact that P.W.2 in his evidence has used the word rent and the evidence on the record shows that the furniture in the room were of the defendant and the telephone connection was also taken by the defendant and it was running an office in the hotel. The keys of the rooms were also with him. The question for consideration is as to whether these circumstances are sufficient to hold that a lease was created in favour of the defendant. So far as the use of the word rent by P.W.2 in his evidence is concerned that by itself is not decisive of the fact that a lease was created. In this connection, reference may be made to the case of Subhas Yashwant Chopde vs. Sachidanand D. Purekar, reported in (1999) 5 S.C.C. 721 , wherein the Apex Court has held that it is well-settled that mere use of the word "rent" is not decisive of the relationship between the parties. P.W.2 has clearly stated in his evidence that the rooms in question were given to the defendant respondent as occupier on payment of Rs. 6/- per day for each room and D.W.2 has admitted that the charges were calculated on each day basis and that varied from month to month according to the days in the month. Only because P.W.2 used the word "rent" in his evidence, it cannot be said that a lease was created in favour of the defendant-respondent. The rooms in question were given to the defendant as occupier in 1956 and telephone connection was taken in 1970 and as such it is also not of any relevance to decide the nature of interest created in the beginning. The defendant was running office and as such it was keeping its own furniture therein, but that by itself is not a circumstance to show its exclusive possession and creation of a lease in its favour. The defendant was running office and as such it was keeping its own furniture therein, but that by itself is not a circumstance to show its exclusive possession and creation of a lease in its favour. The materials on the record show that though the rooms in question were in possession of the defendant-respondent, but the electricity and water supply were of the hotel. Cleaning etc. was done by the hotel employees. There is no evidence that the respondent had engaged its own employees to clean the same. The entry in the hotel was controlled by the plaintiff and the main-gate remained opened up to 10 P.M. and, thereafter, the entry was allowed with the permission of the employees of the hotel. The rent was not fixed for month, on the other hand, the payment was to be made each day for each room depending upon the days of the month. Even if the exclusive possession of the defendant with regard to the two rooms in question is accepted, the idea of a licence is not ruled out as noticed by the Apex Court in the case of Rajbir Kaur (supra). There is possessory licence also, which confers a right of exclusive possession. Thus, the exclusive possession itself of the defendant in respect of the two rooms in question is not decisive in favour of a lease and against a mere licence. The totality of the circumstances, as stated above, clearly shows that a licence was created and not a lease in favour of the defendant-respondent. The circumstances, which have been relied upon by the learned Single Judge for reversing the finding of the trial court, as discussed above, do not show that a lease was created in favour of the respondent. 17. Accordingly, the finding given by the learned Single Judge that a lease was created in favour of the defendant-respondent is set aside. 18. Even it is assumed that a lease has been created, then the question arises as to whether the plaintiff is entitled to a decree for eviction in terms of the provisions of the Control Act. Section 11(1)(d) of the Control Act provides for eviction on the ground of default in payment of legally payable rent for two months. 18. Even it is assumed that a lease has been created, then the question arises as to whether the plaintiff is entitled to a decree for eviction in terms of the provisions of the Control Act. Section 11(1)(d) of the Control Act provides for eviction on the ground of default in payment of legally payable rent for two months. The admitted fact is that the appellant earlier used to send monthly bills with regard to the charge of each room at the rate of per day. Later on, it sent such bills fortnightly and, thereafter, weekly. The amount for occupational charges of the rooms was received by the plaintiff up to August, 1979 through cheque. Cheque for the month of September, 1979, was also sent, but the same was returned by the plaintiff. This fact is admitted by D.W.2 in his evidence. Thereafter, it did not send the monthly rent through money order, on the other hand, sent the same till May, 1980, by cheque, which was returned by the plaintiff on the ground that the word "rent" was used, thereafter, the defendant sent the amount by money order, which according to it, was the rent from June, 1980 to October, 1980. 19. At the relevant time, Control Act of 1977, was in force and section 16 thereof contained a provision with regard to deposit of rent by the tenant on refusal by the landlord to accept it or in case of doubt or dispute as to the person entitled to receive it. Sub-section (1) of the said section is relevant for the present case, which runs as follows: "16 (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." 20. According to the said requirement, when a landlord refuses to accept any rent, then the tenant has to remit such rent and continue to remit the same, which becomes due in respect of the premises by postal money-order to the landlord. According to the said requirement, when a landlord refuses to accept any rent, then the tenant has to remit such rent and continue to remit the same, which becomes due in respect of the premises by postal money-order to the landlord. Admittedly, in this case, even according to the defendant- respondent, the rent from the month of September, 1979 up to May, 1980, was sent to the plaintiff by cheque, which was refused by the plaintiff and, thereafter, the defendant sent the amount from June, 1980 to October, 1980 by money-order. Once the plaintiff refused to accept the rent of the month of September, 1979, the defendant was required to send the same by postal money- order, but admittedly, it did not send the amount by money-order in terms of the aforesaid provision for eight months thereafter. Thus, the defendant defaulted in payment of rent for more than two months. There was no lawful tender of rent in terms of the statutory provision. The law has provided a mode for payment of rent in case of refusal by the land-lord and the same has not been followed by the defendant in this case and, thus, the trial court has rightly held that even if respondent is treated as a tenant, it has made default in payment of rent for more than two months. Accordingly, the finding of the learned Single Judge that there was no default in payment of rent by the defendant is set aside. 21. In the result, this appeal is allowed with cost throughout payable to the plaintiff-appellant and the plaintiff-appellants suit for eviction as well as for arrears of occupational charges is decreed. A.K.Sinha, J. 22 I agree.