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2000 DIGILAW 868 (PAT)

Om Prakash Agrawal v. L. N. Agrawal

2000-07-11

S.K.KATRIAR

body2000
Judgment 1. Heard learned counsel for the appellant. this batch of three analogous appeals are being heard together and disposed of by a common judgment. the plaintiff is the appellant, and the appeals are against a judgment of affirmance. The trial court had dismissed the suits for eviction under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, (hereinafter referred to as the Act), and the plaintiffs appeals were also dismissed. hence the present second appeals. The trial Court had disposed of the three suits by a common judgment and decree dated 20-3-1991, passed by Mr. S.N. Sharma, Additional Munsif, Dhanbad, and the Court of appeal below disposed of the three appeals by a common judgment dated 26-9-1998, passed by Shri N.K. Sharma, 6th Additional District Judge, Dhanbad. Second Appeal No. 7 of 1999 (R) arises out of Title (Eviction) Appeal No. 22 of 1991 (Om Prakash Agarwalla V/s. M/s L.N. Agrawalla and Brothers) which in its turn, had arisen out of Title (Eviction) Suit No. 6 of 1984 (Om Prakash Agarwalla V/s. M/s L.N. Agrawalla and Brothers). Second Appeal No. 8 of 1999 (R) arise out of Title (Eviction) Appeal No. 21 of 1991 (Om Prakash Agarwalla V/s. M/s L.N. Agarwalla and Brothers) which, in its turn, had arisen out of Title (Eviction) Suit No. 5 of 1984 (Om Prakash Agarwalla V/s. M/s L.N. Agarwalla and Brothers). Second Appeal No.9 of 1999 (R) arises out of Title (Eviction) Appeal No. 23 of 1991 (Om Praksh Agarwalla V/s. M/s L.N. Agarwalla and Brothers) which, in its turn, had arisen out of Title (Eviction) Suit No. 7 of 1984 (Om Prakash Agarwalls V/s. M/s L.N. Agarwalla and Brothers). 2. For the purpose of disposal of the present appeals, we shall go by the position of the parties in the trial Court. The three suits and the appeals on facts are almost entirely in common with each other, the only difference is that the three relate to three differeent premises let out by the plaintiff to the defendant for commercial purposes. The plaintiff instituted the three suits for eiction of the defendant from the suit premises on the grounds of default in payment of rent as well as personal necessity. The plaintiffs case is that there was default of two months and, therefore, the defendant is liable to eviction in terms of S. 11 (1) (d) of the Act. The plaintiff instituted the three suits for eiction of the defendant from the suit premises on the grounds of default in payment of rent as well as personal necessity. The plaintiffs case is that there was default of two months and, therefore, the defendant is liable to eviction in terms of S. 11 (1) (d) of the Act. According to the plaintiff, the rent for the month of july,1981, was paid on 2-9-1981, rent for the month of August, 1981 was paid in time, and rent for September, 1981, was paid on 10-11-1981. the defendants are month to month tenant, and there is no written agreement between the parties. The defendants case is that the tenancy had commenced with a clear stipulation orally agreed upon between the parties that the monthly rental would be paid by the defendant to the plaintiff in a lumpsum and as per the convenience of the parties which has been followed although. After having considered the entire evidence on record, the trial Court has answered the question in favour of the defendant, which has been affirmed in appeal. 3. While assailing the validity of the judgment on the question of default in payment of rent, learned counsel for the appellant submitted that the Court of appeal below has erred in law, and misinterpreted and misapplied the provisions of S. 11 (1) (d) of the Act. It is submitted that it ought to have been held that in order to attract the provisions of S. 11 (1) (d) of the Act, it is not essential for the plaintiff to establish that the default was of two consecutive months. He relies on theee judgment of a learned Single Judge of this Court reported in 1989 Pat. LJR (HC) 587 (Sayeed Abdul Wahab V/s. Md. Sakman), and the judgment of the Full Bench of this Court reported in 1964 BLJR 583 : (AIR 1964 Patna 401) (N. Pal V/s. C. Ghose). Learneed counsel for the defendant has, on the other hand, submitted that the issue is concluded by concurrent findings of fact, and it has been held as an issue of fact that it was one of the conditions of oral agreement between the parties ever since the commencement of the tenancy that the rent shall be paid in lumpsum and as per the convience of the parties. He relies on the judgment of the Supreeme Court reported in AIR 1989 SC 920 (Rashik Lal V/s. Shah Gokuldas). 4. Having considered the rival submissions on this aspect of the matter, I reject the contention of the appellant. Both the courts have concurrently held that as an issue of fact that it was condition of the tenancy orally agreed upon between the parties from the inception that the defendant would pay the rent in lump sum and according to his convenience. P.W. 5, Arjun lal Agrawal, the original plaintiff, has deposed to that effect. Finding of fact has been recorded on a consideration of the entire evidence on record, and I am convinced that the same is a correct conclusion of facts. in that view of the matter, learned counsel for the defendant is right in placing reliance on the aforesaid judgment of the Supreme Court in Rashik Lals case ( AIR 1989 SC 920 ) (supra), paragraphs 7 and 8 are relevant in the present context and are set out hereinbelow for the facility of quick reference. :- "7. the relevant provisions of the Rent control order require a tenant to be "habitually in arrears with the rent" as a condition for the grant of the permission by the authority to the landlord to determine the lease. It is significant to note that the condition mentioned in the Rent control order is different from the condition in several other statutes where mere non-payment of rent for a particular period has been provided as adequate ground for eviction of the tenant. The question whether the tenant was a "habitual defaulter" arose before the Supreme Court in S.P. Deshmukhs case ( AIR 1977 SC 1985 ) (supra) and was answered in the negative in the following words :- "Normally, a monthly tenant is under an obligation to pay rent from month to month but this obligation is subject to a contract to the contrary. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread over a fairly long period of time. Such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread over a fairly long period of time. The evidence in the case, which was believed by the two tribunals of fact, shows that the tenant has been paying rent at an interval of 3 or 4 months, which the landlord has been willingly accepting and always without even so much as a murmur."" 8. We do not see any reason for holding that unless the rent was paid and accepted at a fixed period of interval, no such implied agreement can be inferred . In the S.P. Deshmukhs case ( AIR 1977 SC 1985 ) (supra) the rent had been paid at the varying interval of 3 or 4 months. The cucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments. We, therefore, hold that the High Court was not right in reversing the concurrent finding of the two Courts below. Accordingly the impugned judgment is set aside, that of Resident Deputy Collector is restored and the appeal is allowed with costs throughout. We, therefore, hold that the High Court was not right in reversing the concurrent finding of the two Courts below. Accordingly the impugned judgment is set aside, that of Resident Deputy Collector is restored and the appeal is allowed with costs throughout. Before closing, however, we would like to observe that in view of the attitude of the parties disclosed in the present case the appellant should hereafter pay the rent regularly in the succeeding months failing which he may be liable to be adjudged a habitual defaulter."In that view of the matter, the proposition of law enunciated by this Court in the case of Sayeed Abdul Wahab (1989 Pat.LJR (HC) 587) and in the case of N.Pal (AIR 1964 Patna 401) (FB) (supra), are inapplicable to the facts and circumstances of the present case. I am convinced that the defendant has been able to establish by cogent evidence that it was one of the conditions of the oral agreement of the tenancy from the inception that the rent would be payable in lumpsum and as per the convenience of the defendant. Sec. 11 (1) (d) of the Act is in two parts, the first part of which relates to the failure to pay the rent according to the time fixed by the contract. The seceond part is connected with a disjunctive or, which deals with the failure to pay the rent in accordance with the statuatory provision stated therein. It has been held in the aforesaid judgment of the Supreme Court that such a contract need not be reflected in a formal document and can be spelt out from the conduct of the parties, spread over a fairly long period of time, which has been clearly found by the Courts below in favour of the defendant in the present case. This issue is concluded by concurrent findings of facts and it is not open to this Court to exercise of its second appellate jurisdiction to reappreciate the evidence and come to a different conclusion. This aspect of the matter and the law governing the same is discussed in paragraph 6 hereinbelow. The plaintiffs contention is, therefore, rejected. This issue is concluded by concurrent findings of facts and it is not open to this Court to exercise of its second appellate jurisdiction to reappreciate the evidence and come to a different conclusion. This aspect of the matter and the law governing the same is discussed in paragraph 6 hereinbelow. The plaintiffs contention is, therefore, rejected. 5 Learned counsel for the plaintiff has next contended that the Courts below have recorded incorrect findings of fact on the question of personal neceeessity, and have gone on irrelevant considerations, for example, brothers are partners in others business meaning thereby that all the brothers (i.e. sons of the original plaintiff), are usefully engaged in life and, therefore, do not need the suit premises. he further submits that the Courts below have further erred in holding that the plaintiff has not used a shop in the marketing yard belonging to the plaintiff which fell vacant during the pendency of the suit. He submits that it is entirely for the plaintiff to choose his place of business, the suit premises being in the heart of the town and are far more suitable than the one in the marketing yard. On the other hand, learned counsel for the defendant submits that the issue is concluded by finding of facts and the Courts below have concurrently held that the plaintiff does not need the suit permises on account of personal necessity, being a mere ploy to evict the defendant. 6. having considered the rival submissions on this aspect of the matter, I reject the plaintiffs contention. Learned counsel for the defendant is right in placing reliance on the judgment of the Supreme Court reported in (2000) 1 Supreme Today 48 : ( AIR 2000 SC 534 (Raghavendra Kumar V/s. Firm Prem Machinery and Co.), which was decided by the Supreme Court on 7-1-2000 in Civil Appeal No. 3663 of 1998, wherein it has been held that bona fide requirement of landlord does not give rise to any substantial question of law and it has to be decided on appreciation of evidence, High Court had erred in law by setting aside concurrent findings of Courts below by reappreciating entire evidence on record, and consequently judgment of the High Court was set aside. Learned counsel for the defendant is right in his submission that the issue in the present case is concluded by concurrent finding of facts. Learned counsel for the defendant is right in his submission that the issue in the present case is concluded by concurrent finding of facts. Both the Courts below have held that the ground of personal necessity set up by the plaintiff is not reasonable and bona fide and is meant only to evict the defendant. The Courts below have considered the entire evidence on record and have come to the conclusion which, in my view, is a just, possible and reasonable conclusion. In that view of the matter, learned counsel for the defendant has rightly relied on the judgment of the Supreme Court reported in (1998) 6 SCC 423 (Satya Gupta V/s. Brijesh Kumar), wherein it has been held that where findings of facts of the lower appellate Court are based on evidence, the High Court in second appeal cannot set it aside on reappeciation of evidence merely on the ground that another view was possible. In that view of the matter, I reach the conclusion without hesitation that the issue is concluded by the concurrent findings of fact and it is not for the High Court exercising second appellate jurisdiction to reappreciate the evidence, and come to a different conclusion on facts merely because the High Court may possibly prefer to take a different view on the same materials. In fact, learned counsel for the plaintiff has not contended before this Court that the concurrent finding of the Courts below are perverse. 7. Learned counsel for the plaintiff has lastly submitted that the Courts below have erred in holding that the suit is not maintainable against the defendant with the present description. In view of the findings recorded hereinabove on the two aspects of the matter heceinabove, there is no need to decide this question. 8. In the result, the appeals are dismissed, and the judgment dated 26-9-1998, passed by Shri N.K. Sharma, 6th Additional District Judge, in Title (Eviction) Appeal Nos. 21, 22 and 23 of 1991 (Om Prakash Agrawalla V/s. M/s L.N. Agrawalla and Brothers), is hereby upheld.Appeal dismissed.