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2000 DIGILAW 41 (PAT)

Balwant Singh v. Anand Kumar Sharma

2000-01-11

PRABHAT KUMAR SINHA, SACHCHIDANAND JHA

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JUDGMENT S.N. JHA & P.K. SINHA, JJ.:- This is a tenants' second appeal. The plaintiff-landlords instituted suit for eviction on the grounds of default and personal necessity. The trial court dismissed the suit holding that even though the defendant-tenant had committed default in making payment of rent, since the landlords had accepted the rent he cannot be said to be defaulter. The court also disbelieved the landlords' case of personal necessity. The lower appellate court held that acceptance of rent did not constitute waiver and as the rent for several months was admittedly paid after the due dates, the tenant must be held to be defaulter and accordingly granted the landlords decree of eviction. It may be mentioned here that the plea of personal necessity does not seem to have been pressed before the lower appellate court. 2. This second appeal was admitted on the question whether on the admitted facts the appellants can be said to be defaulter within the meaning of section 11 (1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act (in short 'the BBC Act'). When the appeal came up for hearing before a learned Single Judge, it was submitted that the decision in Raj Kumar Prasad v. Uchit Narain Singh, AIR 1980 Patna 242, on the basis of which the lower appellate court had granted the decree, cannot be treated as having laid down the correct law in view of decisions of the Supreme Court in Satynarain Kandu v. Smt. Hemlata, 1996 PLR 110 (SC); and Premchand Ranka v. A Vasanthraj Khatod & ors. (1992) 1 SCC 369 . The learned Judge referred the appeal for hearing by Division Bench to consider whether the decision in Raj Kumar Prasad's case stands impliedly over-ruled by the aforesaid decisions of the Supreme Court. That is how that appeal was placed before us for hearing. 3. Shri Shiva Nandan Roy, learned counsel for the appellants, reiterated his contention that acceptance of rent paid beyond the due dates amounts to waiver of the landlord's right to seek eviction of the tenant and as in the present case the landlords had accepted rent paid beyond the due dates the tenant cannot be treated as defaulter. He placed reliance on the aforesaid decisions of the Supreme Court. He placed reliance on the aforesaid decisions of the Supreme Court. He also contended that the fact that the rent used to be paid for 2-3 months at a time which were always accepted by the landlords, implies tacit contract between them permitting the tenant to pay rent at a time for 2-3 months. The tenant, thus, being not required to pay rent month to month, he cannot be said to be a defaulter for not having paid rent by the last day of the succeeding month. 4. It would be useful at this stage to quote the provisions of section 11 (1)(d) of the Act as under:- "11. Eviction of tenants.-(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:- (a) ........... (b) ........... (c) ........... (d) where the amount of two months rents, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with section 16." 5. It may be pointed out at this stage that the above provision is one of its own kind unlike Rent Control Acts of other States, in some of which the expression "wilful default", in some other "habitual default" occurs. The words "is in arrears" occurring in clause (d) show that where the tenant is in arrear of rent equivalent to two months, the ground for eviction within the meaning of the clause is made out. It may also be mentioned here that for constituting default within meaning of section 11 (1)(d) it is not necessary that there should be default for two successive months. It is enough if the rent for two months is not paid resulting in the tenant falling in arrear of two months' rent. It may also be mentioned here that for constituting default within meaning of section 11 (1)(d) it is not necessary that there should be default for two successive months. It is enough if the rent for two months is not paid resulting in the tenant falling in arrear of two months' rent. Reference may be made to the Bench decision of this Court in Madho Lal v. M.M. Agarwalla, AIR 1975 Patna 154. In fairness, it must be stated that Shri Shiva Nandan Roy did not canvass any argument to the contrary. 6. I would first deal with the second contention urged by Shri Roy that payment of 2-3 months' rent spells out a contract under which the tenant was not required to pay rent month to month, that is to say, by the last day of succeeding month; rather it was open to him to pay rent for 2-3 months at a time. He referred to the table showing details of payment in para 5A of the plaint as under- Months Amount Date of Month payment of default June & July 1972 350/- 31.8.72 June 1972 Aug & Sept 1972 350/- 14.10.72 Aug 1972 Oct & Nov 1972 350/- 20.12.72 Oct 1972 1972 Dec & 1973 Jan 350/- 2.3.73 Dec 1972 Feb & Mar 1973 350/- 25.4.73 Feb 1973 Apr & May 1973 350/- 18.6.73 Apr 1973 June & July 1973 350/- 22.8.73 June 1973 Aug & Sept 1973 350/- 13.10.73 Aug 1973 Oct & Nov 1973 350/- 18.12.73 Oct 1973 1973 Dec & 1974 Jan 350/- 16.2.74 Dec 1973 Sept & Oct 1974 350/- November September Nov & Dec 1974 350/- January November Jan & Feb 1975 350/- March January March & April 1975 350/- May March May & June 350/- July May July & Aug 350/- September July According to Shri Roy, the above particulars regarding payment would show that there was implied contract between the parties for payment of rent in that manner. 7. It is to be kept in mind that section 11(1)(d) mandates payment of rent within the time fixed by the contract or where there is no such contract, by the last day of the month next following. The point at issue is settled by a full Bench decision of this Court in Niranjan Pal & anr. v. Chaitanyalal Ghosh & anr., AIR 1964 Patna 401 = 1964 BLJR 583. The point at issue is settled by a full Bench decision of this Court in Niranjan Pal & anr. v. Chaitanyalal Ghosh & anr., AIR 1964 Patna 401 = 1964 BLJR 583. It would be apposite to quote paragraphs 40 and 42 of the judgment as under:- "40. It is manifest that the legal position has completely changed by virtue of the amendment of 1955. It can no longer be said that the Act does not provide the time for payment. Section 11 (1)(d) clearly lays down that, if two months' rent computed from 'the time fixed by contract' is in arrears, the landlord will be entitled to a decree for eviction of the tenant. If there is no contract, rent for one month will be payable by the last day of the next month. If the landlord does not accept the rent tendered to him by the tenant, the latter can, under Sec.13(1), remit such rent to him by postal money order, and may continue to remit subsequent rent in the same manner. These provisions seem to show that there must be an express contract as to the time for payment of rent, and then that will be considered for determination of the question of two months' rent being in arrears. It is difficult for a definite time to be so fixed by an implied contract. So far as the present case is concerned, the defendant's case is that rent for different periods used to be paid and accepted at irregular intervals. This cannot show that time for payment was fixed by contract; it rather shows that no time for payment was fixed by contract. That being so, it is clear that it should be treated as a case of absence of contract as to the time for payment of rent. 42. I respectfully agree with the view expressed in the above observations, and I hold that the contract, referred to in Sec. 11 (1)(d) of the Contract Act, is an express and not an implied contract. I, therefore, agree with Mr. 42. I respectfully agree with the view expressed in the above observations, and I hold that the contract, referred to in Sec. 11 (1)(d) of the Contract Act, is an express and not an implied contract. I, therefore, agree with Mr. Chaudhuri that Chiranjilal Poddar's case, AIR 1957 Pat 160 , is not good law after the amendment of 1955." It would not be out of place to mention here that in the aforesaid case the Full Bench by majority opinion had also held that for seeking decree of eviction it is mandatory for the landlord to give notice under section 106 of the T.P. Act which part of the judgment was later over-ruled by the Supreme Court in V. Dhanapal Chattiar v. Yesodai Ammal, AIR 1979 Supreme Court 1745. However, on the question as to whether the BBC Act envisages any implied contract in contradistinction to written contract, there was no difference of opinion amongst the Judges and the judgment continues to hold the field. In Ramji Prasad & anr. V. Abhay Kumar Jain, 1991 BBCJ 226 a similar view was expressed. It was held that the theory of implied contract for payment of rent at the convenience of tenant is inapplicable in the context of section 11 (1)(d) of the BBC Act. We thus do not find any substance in the contention that there was any implied contract between the parties, and accordingly hold that in the absence of any contract the appellant was liable to pay rent by the last day of succeeding month in terms of section 11 (1)(d) of the BBC Act. 8. Coming to the other question, it would be useful to notice the definition of the term 'tenant' under section 2(h) of the BBC Act as under:- "Tenant" means any person by whom, or on whose account rent is payable for a building and (i) a person continuing in possession after the termination of the tenancy in his favour; and (ii) ....." The BBC Act is special legislation and the provisions of section 11 starting with a non obstante clause, therefore, have to be given an over-riding effect. It was for this reason, inter alia, that the Full Bench in Raj Kumar Prasad's case held that section 11 of the Act is a self-contained section and in order to determine as to whether a tenant is liable to be evicted, and under what condition he may be evicted it is wholly unnecessary to travel beyond the Act. 9. From bare reading of the definition clause of section 2(h) read with section 11 of the Act it would appear that once a person is inducted as a tenant either under contract or otherwise and he is in possession of any building, he continues to remain tenant within the meaning of section 2(h) until he is evicted from the premises in execution of a decree passed by a court of competent jurisdiction on any of the grounds specified in section 11. The initial induction of a tenant may be under a contract or otherwise but once the Act becomes applicable, he continues to remain a tenant within the meaning of the Act until he is evicted by process of law in execution of decree passed in a suit for eviction. If that be so, even if the default occurs within the meaning of section 11 (1)(d) resulting in forfeiture of the tenant's right to remain in occupation of the premises, he continues to be a statutory tenant. It would not be out of place to refer to the following passage from V. Dhanapal Chattiar v. Yesodai Ammal (supra). While dealing with the provisions of the BBC Act their Lordships observed:- "The definition section permits the tenant to continue as a tenant even after the determination of the contractual tenancy. It would not be out of place to refer to the following passage from V. Dhanapal Chattiar v. Yesodai Ammal (supra). While dealing with the provisions of the BBC Act their Lordships observed:- "The definition section permits the tenant to continue as a tenant even after the determination of the contractual tenancy. Section 11 gives him protection against eviction by starting with a non-obstante clause and providing further that he shall not be liable to eviction from any building except in execution of a decree passed by the court for one or more grounds mentioned in section 11." While considering the status of a tenant in occupation of a building after incurring forfeiture, as a statutory tenant it may be relevant to point out that it is for this reason, and in recognition of his status as statutory tenant, that even during the pendency of the suit the landlord is entitled to ask the court to direct such tenant to pay rent-arrears and/or current-with respect to premises n terms of section 15 of the Act. 10. Shri Roy did not make any argument to the contrary that a defaulter tenant continues to be statutory tenant. He, however, contended that where the court passes an order directing the tenant to pay rent under section 15 of the Act, the case would stand on a different footing than where the tenant pays rent and the same is accepted by the landlord on his own. In our opinion, there is no warrant for this distinction. According to us, after incurring the liability for being evicted on the ground of default, the tenant does not get any immunity from payment of rent, whether he pays rent pursuant to any order of the court or he does so on his own is of no consequence. Therefore, if the tenant is liable to pay rent and such rent is accepted by the landlord it cannot be said that he has waived his right to seek eviction of the tenant. 11. Coming to the question of waiver, it is well known that waiver is intentional relinquishment of known right. In the context of a Rent Control Act what is the known right which the landlord by acceptance of rent can be said to have intentionally relinquished ? 11. Coming to the question of waiver, it is well known that waiver is intentional relinquishment of known right. In the context of a Rent Control Act what is the known right which the landlord by acceptance of rent can be said to have intentionally relinquished ? The only right which the landlord is supposed to be aware of is his right to eviction on the basis of the decree passed by the court but until such eviction takes place the tenant continues to be a statutory tenant during the pendency of the suit. If the tenant is liable to pay rent during the pendency of the suit, it is not understandable how acceptance of rent •can be held to be abandonment of his right to enforce eviction. There is thus no question of waiver of his right. This precisely is the import of the Full Bench decision in Raj Kumar Prasad's case, which is binding on us. 12. It is, however, submitted, that the decision stands impliedly over-ruled by the decisions in Satyanarain Kandu v. Smt. Hemlata, 1996 PLR 110 (SC) and Premchand Ranka v.s A. Vasanthraj Khatod & ors., (1992)1 SCC 369 . It was for considering this argument that the case was referred to Division Bench. From the facts stated in the judgment in Satyanarain Kandu's case it would appear that the High Court had held the tenant to be defaulter for having paid rent for the months of Januray 1983 to June 1983 on 5.7.93, and for the months of July 1983 to October 1983 on 7.9.93. The High Court held that the rent having not been paid for the default period the relationship of landlord and tenant had automatically come to an end and despite the landlord accepting the rent thereafter, the default would not be cured. The Supreme Court did not into the correctness or otherwise of this finding. Observing that it was not necessary to go into the question, the Court stated, "We are of the view that at the most there is technical default on the part of the tenant. In the facts and circumstances of the case, we are of the view that the provisions of the Act have been substantially complied with. Observing that it was not necessary to go into the question, the Court stated, "We are of the view that at the most there is technical default on the part of the tenant. In the facts and circumstances of the case, we are of the view that the provisions of the Act have been substantially complied with. (emphasis added) It would thus appear that the order which was passed in the facts and circumstances of the case, as expressly said by their Lordships, must be construed as an order passed in accordance with Article 142 of the Constitution of India. The decision with utmost respect, does not lay down any principle of law; as a matter of fact, the question for consideration which arose from the judgment of the High Court was not gone into by the Court. The order in Premchand Ranka (supra) stands on even a lesser footing. Without stating the facts of the case, the arguments advanced and so on the Court observed, "It is true that all the courts have held that the appellant is a wilful defaulter although he has paid the arrears in lump sum. But the fact remains that the payment made in lump sum has been accepted by the landlord and this method of payment went on for quite a long time. In the circumstances, we do not think that there is wilful default on the part of the tenant. The finding of the courts below seems to be too technical." This order also must be said to be an order passed in terms of Article 142 of the Constitution. 13. It is well settled that the decision is an authority on the point, which is decided by it and not what logically from it. (See State of Orissa v. Sudhansu Shekhar Mishra, AIR 1968 Supreme Court 647). The above principle laid down in Quinn v. Leathem, 1901 AC 495 have been consistently followed by the Courts. The above two decisions did no consider the question as to whether by reason of the tenant falling in arrear of two months rent within the meaning of section 11 (1)(d) of the BBC Act, he is liable to be evicted for being defaulter. The Court seems to have taken a compassionate view of the matter and on the ground that landlord has accepted rent, condoned the default. The Court seems to have taken a compassionate view of the matter and on the ground that landlord has accepted rent, condoned the default. Such orders, in our opinion, can be passed only under Article 142 of the Constitution. They do not therefore affect or in any manner dilute the correctness of the decision of the Full Bench in Raj Kumar Prasad's case. 14. The law on the point was rather laid down otherwise in Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 Supreme Court 1067, Anand Niwas Pvt. Ltd. v. Anandji Kalyaniji's Pedhi, AIR 1965 Supreme Court 414, and Ranjit Chandra Chowdhary v. Mohitesh Mukherjeee, AIR 1969 Supreme Court 1187. In the former, it was observed, "Where a contractual tenancy to which rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy." The decison was noticed and followed in other cases. If the acceptance of rent does not amount to creation of a new tenancy and the old contractual tenancy continues, acceptance of rent by the landlord from a statutory tenant-whether before or after filing the suit-cannot amount to waiver. The decision in Rajkumar Prasad's case, AIR 1980 Patna 242, thus, it would appear, is in accord with the law lard down by the Supreme Court. In the cases relied upon by the counsel for the appellants, the earlier decisions were not noticed. They were decided in the facts and circumstances of the case. The orders passed therein cannot be said to have laid down any law to the contrary, and decision in Rajkumar Prasad's case cannot be said to have been impliedly over-ruled. 15. In the above view of the matter, in the present case, the impugned judgment of the lower appellate court which granted the decree of eviction following the decision in Rajkumar Prasad's case, cannot be said to be erroneous. 16. In the result, this appeal is dismissed, but without any order as to costs.