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2004 DIGILAW 637 (JHR)

Pawan Lal Soni v. Sushila Debi Modi

2004-06-24

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the defendants-appellant has been preferred against the impugned judgment of affirmation and decree dated 24.4.1989 and 3.7.1989 respectively passed in Title (Eviction) Appeal No. 74 of 187, 12 of 1988 by Shri S.N. Gupta, 1st Additional Judicial Commissioner, Ranchi whereby and whereunder the appeal was dismissed confirming the judgment and decree of the trial Court passed in Title (Eviction) Suit No. 14 of 1984/8 of 1987. 2. The plaintiffs-respondent has filed the said title eviction suit for eviction of the defendant-appellant from the suit premises which is one shop room in the Holding No. 1183, Ward No. 2 situate at Randhir Prasad Street, Sonarpatti, Upper Bazar, Ranchi fully detailed in the schedule of the plaint. 3. The case of original plaintiff-respondent Ram Nath Modi (since dead), in brief is that he is the landlord of the suit premises and Dhanraj Soni @ Dhanjee Soni, the father of the defendant-appellant was the tenant under him of the suit premises on a monthly rental of Rs. 75/-who died leaving behind the defendants- appellant as his heirs and after his death defendant No. 1 is running a Jewellery shop in the suit premises and he was paying rent of the suit premises to the plaintiff who has always granted rent receipts to the defendant regarding rent received by him. It is alleged that the defendant has not paid rent of the suit premises to the plaintiff from the month of November 1983 and has thus defaulted in payment of the rent rendering himself liable for eviction. The further case of the plaintiff-respondent is that the plaintiff requires the suit premises for his own use and occupation and personal requirement as he is carrying his own business in a tenanted premises at Kathsarai Road, Upper Bazar on paying monthly rent of Rs. 200/- and Pradip Kumar Modi, the landlord of the said premises is pressing the plaintiff to vacate the said premises. It is also alleged that the plaintiff has three sons dependant upon him and he holds the suit property for the benefit of his sons who are unemployed and he desires to set up business in the suit premises for his sons at the suit premises is situate in a commercial area in the town of Ranchi and the plaintiff, therefore, requires the suit premises reasonably and in good faith. 4. 4. The case of the defendant-appellant, inter alia, is that the plaintiff has let out 8 x 10 vacant land to his father Dhanjee Soni in the year 1946 on the monthly rent of Rs. 20/- and the shop thereon was constructed by his father aforesaid at his own cost and thus the provision of Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the said Act) is not applicable and the suit of the plaintiff is not maintainable for want of notice under Section 106 of the Transfer of Property Act. Admitting the plaintiff as landlord of the suit premises and there being the relationship of landlord and tenant between the parties it has been stated that the rent of the suit premises was initially @ Rs. 20/- per month which was illegally enhanced to Rs. 25/- from March 1962, Rs. 30/- from January 1964, Rs. 40 from October 1971, Rs. 60/- from January 1979 and Rs. 75/- from April 1981 per month and the said enhancement is illegal under the provision of the said Act and the defendant is entitled to adjustment of Rs. 5260/-of the said illegally enhanced rent in current and future rent of the suit premises and he has requested the plaintiff for several times for adjusting the same in the monthly rent and thus the defendant is not a defaulter on this score also. It is alleged that even after the death of his father, the plaintiff did not recognize him as a tenant of the suit premises and always issued rent receipts in the name of his deceased father. The specific case of the defendant is that he is not a defaulter under the law and he has always been paying the monthly rent in the name of his father of the suit premises to the plaintiff and the defendant has personally tendered the rent for the month of November and December 1983 in the month of January 1984 which the plaintiff refused to receive and on his refusal this defendant has remitted the same through money order which was also refused by the plaintiff and likewise the defendant has been remitting the monthly rent to the plaintiff for the subsequent months which the plaintiffs is illegally refusing to accept the same. It is also alleged that the plaintiff was never granting rent receipts regularly and sometimes receipts of a year or six months were issued at a time in one receipt and the rent for the suit premises was never payable month by month. Further case of the defendant is that the plaintiff and all is sons are doing business at Upper Bazar, Ranchi where they have a big shop and they deal in Asbestes sheet and two of the sons of the plaintiff have cement business and they are not dependent upon the plaintiff and the requirement of the suit premises as claimed by the plaintiff is neither reasonable nor bonafide. 5. In view of the pleadings of the parties, the learned trial Court has formulated the following issues for adjudication-- (i) Is the suit as framed maintainable? (ii) Has the plaintiff valid cause of action for the suit? (iii) Is the suit bad for want of notice under Section 106 of the Transfer of Property Act? (iv) Has the defendant defaulted in payment of the rent of the month of November and December 1983? (v) Does the plaintiff reasonably and in good faith require the suit premises whole or in part for his business as well as for the use and occupation by his sons or for his business? (vi) Is the plaintiff entitled to get relief or reliefs if any? 6. In view of the evidence oral and documentary on the record, the learned trial Court has decided all the issues in favour of the plaintiff and has held that the suit premises was let out on rent to the defendant and not the vacant land and the admitted rent is Rs. 75/- per month of the suit premises and the defendant is not entitled for adjustment of Rs. 5260/- and the defendant is a defaulter due to the nonpayment of the rent of the month of November and December 1983 and the suit premises is reasonably and in good faith required by the plaintiff for his own business and for the business of his sons for whose benefit the building is held by him. In view of the findings aforesaid, the learned trial Court decreed the suit of the plaintiff directing the defendant to vacate the suit premises within two months. 7. In view of the findings aforesaid, the learned trial Court decreed the suit of the plaintiff directing the defendant to vacate the suit premises within two months. 7. Being aggrieved and dissatisfied with the judgment of the trial Court, the defendant-appellant preferred Title (Eviction) Appeal No. 74 of 1987. The learned Appellate Court below on reappraisal and re-appreciation of the evidence on the record has affirmed the findings of the trial Court and dismissed the appeal. The learned Appellate Court below has held that there was no valid tender of the rent due for the month of November and December 1983 and the defendant has defaulted in payment of the rent for the said two months and thus, the defendant is liable to be evicted from the suit premises. It has also been held that a sum of Rs. 5260/-cannot be adjusted towards the arrears of rent for the month of November and December 1983. The learned Appellate Court below in para- 9 of its judgment has held considering the evidence on the record that the plaintiff requires the suit premises for his personal necessity and also for the employment of his sons in business. 8. While admitting the appeal for hearing, this Court vide order dated 22.10.1990 has formulated the substantial questions of law which run thus: -- "(i) Whether in view of the Full Bench decision of this Court in Raj Kumar Prasad v. Uchit Narayan, reported in 1980 BBCJ 391, the Learned Court below could have given a definite finding that the appellant did not tender the stipulated monthly rent to the defendant in January, 1984 which finding if arrived at in favour of the appellant and if it was held that the plaintiff refused to accept the monthly rent, entitled a tenant-defendant to remit the rent by M.O. to his landlord at the earliest opportunity. (ii) Whether the Learned Court of appeal below misdirected itself in passing the judgment with regard to personal necessity without considering the evidence adduced on behalf of the tenant-appellant." 9. (ii) Whether the Learned Court of appeal below misdirected itself in passing the judgment with regard to personal necessity without considering the evidence adduced on behalf of the tenant-appellant." 9. Assailing the impugned judgment it has been submitted by the learned counsel for the defendant-appellant that the learned Appellate Court below has misconstrued the evidence on the record regarding the tender of the rent for the month of November and December 1-983 in the month of January 1984 and thereafter remitting the rent by M.O. on 1.2.1984 by money order as per Ext. C and has committed a manifest illegality in holding the defendant-appellant as defaulter. Elucidating it has been submitted that it appears from the provision of Section 11(1)(d) of the said Act that where there is no contract fixing time within it the payment of rent should be made, by the last day of the month next following that for which the rent is payable or by having been validly remitted under Section 19 of the said Act and here in this case, in the absence of a contract the rent for a particular month must be paid by the last day of the next following month by tender and in case of refusal by the landlord to accept any rent tendered to him by the tenant to remit such rent by postal money order and the defendant-tenant has tendered the rent to the plaintiff-landlord in the month of January, 1984 and due to the refusal aforesaid the tenant remitted the rent on 1.2.1984 i.e. the next following day of the last day of the month of January 1984 and as such the rent of the suit premises has been validly remitted by postal money order and in this view of the matter the defendant cannot be termed as a defaulter. It has also been submitted that the learned Appellate Court below did not consider the ratio of the case of Raj Kumar Prasad v. Uchit Narayan, 1980 BBCJ 391 read with the ratio of the case of Smt. Priya Bala Ghosh and Ors. v. Bajranglal Singhania and Anr., 1992 (2) PLJR (SC) 9. Referring Exts. It has also been submitted that the learned Appellate Court below did not consider the ratio of the case of Raj Kumar Prasad v. Uchit Narayan, 1980 BBCJ 391 read with the ratio of the case of Smt. Priya Bala Ghosh and Ors. v. Bajranglal Singhania and Anr., 1992 (2) PLJR (SC) 9. Referring Exts. A/2, A/3, A/4, A/8 and A/11 it has been submitted that the rent for the suit premises was never payable month to month, rather, it was payable as per the convenience of the defendant-appellant and there was an implied agreement between the parties as regard the payment of rent of several months at one time and the plaintiff-respondent had never objected to that mode of payment and as such he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction on the ground of default. In support of his contention reliance has been placed upon the ratio of the case of Rashik Lal and Ors. v. Shah Gokuldas, AIR 1989 SC 920 . It has further been contended that the learned Appellate Court below has also committed a grave error of law in not giving independent consideration on the question of personal necessity of the plaintiff-appellant in his finding and has also not considered the evidence of the defendant-appellant in respect thereof and in this view of the matter the impugned judgment also suffers with illegality. In support of his contention reliance has also been placed upon the ratio of the case of Variety Emporium v. V.R.M. Mohd, Ibrahim Naina, AIR 1985 SC 207 . Lastly, it has been contended that in spite of concurrent findings of both the Courts below the High Court is not hampered by the provision of Section 100 of the Code of Civil Procedure from interfering with the findings of facts of lower Courts as the first Appellate Court is duty bound to make a critical analysis of the material evidence and it cannot mechanically affirm the findings of the trial Court without due and proper application of mind. In support of his contention reliance has been placed upon the ratio of the case of State of Rajasthan v. Harphool Singh (dead) through his LRs., (2000) 5 SCC 652 . Thus the impugned judgment is unsustainable. 10. None appears on behalf the respondent. 11. In support of his contention reliance has been placed upon the ratio of the case of State of Rajasthan v. Harphool Singh (dead) through his LRs., (2000) 5 SCC 652 . Thus the impugned judgment is unsustainable. 10. None appears on behalf the respondent. 11. There is no dispute between the parties regarding the fact of the relationship of landlord and tenant between the parties and admitted rent of the suit premises being Rs. 75/- per month and the father of the defendant was inducted as tenant in the suit premises which was a shop initially at a rental of Rs. 20/- which was subsequently raised from time to time and now it is Rs. 75/- per month. The plaintiff-respondent has sought the eviction of the defendant-appellant from the suit premises on two fold grounds i.e. the default in payment of rent due of two months and reasonable and bona fide requirement of the suit premises for his own business as well as for use and occupation of his sons who are unemployed and dependent upon him. Both the Courts below have concurrently held that the defendant is the defaulter and the plaintiff- respondent reasonably and bona fidely requires the suit premises for his own business as well as for the use and occupation of his sons. In view of the substantial questions of law formulated aforesaid, let us now examine the correctness of the finding in respect of the defendant being a defaulter liable to eviction from the suit premises Section 11 is relevant which mandates that 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 grounds such as when a tenant commits breach of the conditions of the tenancy, when the condition of building has materially deteriorated, when the building is required for the landlord for his own personal use, when the tenant commits default in payment of the rent for two months and lastly on the expiry of the period of tenancy in case of a tenant holding on a lease for specified period. Section 11(1)(d) is relevant in this case. Section 11(1)(d) is relevant in this case. A tenant is a defaulter when the amount of two months rent 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. Section 19(1) of the said Act mandates that 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. The Full Bench of the Patna High Court in the case of Raj Kumar Prasad (supra) has thus observed: "xx xx xx xx xx xx xx xx xx xx If the law, as in the cases under the Rent Act, gives the liberty to the tenant under Section 11(1)(d) to make the payment in the absence of a contract by the last day of the month next following then can it be said that if on such last day the landlord refuses to accept the rent and subsequently a date later than the last day of the month next following the tenant remits such rent by postal money order, he can yet be called a defaulter. The answer, in my view must be in the negative. When Section 13(1) speaks of the remittance of rent by postal money order to the landlord on refusal on the part of the landlord to accept such rent, the law clearly envisages two possibilities. If the tenant apprehends that for some ulterior motive the landlord could refuse to accept rent for the purpose of making the tenant a defaulter within the meaning of the Rent Act, he may well remit such rent by postal money order by the last day of the month next following. That would make the remittance a valid payment within the meaning of Section 11(1)(d). That would make the remittance a valid payment within the meaning of Section 11(1)(d). The other option given to the tenant is to pay hand to hand or tender the rent lawfully payable by the last day of the succeeding month and in the case of refusal on the part of the landlord to make a remittance by a postal money order on the date subsequent thereto, i.e. the last day of succeeding month. That, in my considered view, is the cumulative effect of the provisions of Section 11(1)(d) read with Section 13(1) of the Rent Act. xxx xxx xxx." On the touchstone of the ratio of the case of Raj Kumar Prasad (supra) it is essential first to advert to the pleadings of the parties and thereafter the evidence in respect thereof. The case of the plaintiff-respondent in para-6 of the plaint is that the defendant has not paid rent to the plaintiff from the month of November and December 1983 and thus defaulted in payment of rent rendering himself liable to eviction. The case of the defendant-appellant in para-11 of his written statement is quoted below: -- "That the allegations made in paragraph (6) of the plaint are false, incorrect and are denied. This defendant is not a defaulter under the law but has always been paying the monthly rent in the name of his father for which the plaintiff has also granted the rent receipt. This defendant personally tendered the rent for the months of November and December 1983 in the month of January 1984 which the plaintiff refused to receive and on his refusal this defendant remitted the same through money order which too was refused by the plaintiff and likewise this defendant has been remitting the monthly rent to the plaintiff for the subsequent month which the plaintiff is illegally refusing to receive the same, thus the defendant cannot be said to be a defaulter under the law." P.W. 1 plaintiff-respondent has deposed that the defendant has paid the rent of the suit premises in the month of October 1983 and whenever the rent has bee paid he has granted the rent receipt to the defendant. Ext, 1 is the counterfoil of the rent receipt evidencing the fact that the rent for the month of October 1983 was paid on 11.11.1983 and Ext 2 is the signature of the defendant on the back of the said counterfoil. D.W. 2, the defendant-appellant in para-3 of his evidence has deposed that he had gone to make payment of the rent for the month of November and December 1983 to the plaintiff and he received the rent and told that he will sent the rent receipt. He has further deposed that the plaintiff did not grant any receipt in respect thereof and later on the plaintiff refunded the rent of the aforesaid two months to him and thereafter he has remitted the rent of the aforesaid two months by postal money order which was also refused by him. He has further deposed that he has remitted the rent by postal money order on 31.1.1984. The evidence of D.W. 2, the defendant is palpably false and is against his pleadings above. There is no averment in para-11 of the written statement that the plaintiff received the rent of the month of November and December 1983 and told the defendant that he will get the receipt sent in respect thereof. There is also no averment therein that the plaintiff thereafter refunded the amount of rent of the aforesaid two months to the defendant, P.W.1, the plaintiff in para-2 of his evidence has denied the fact that the defendant has come to him in the month of January 1984 to make payment of the rent for the month of November and December 1983 which he has refused. Ext C is the postal receipt of the remittance of rent of the month of November and December 1983 and its shows that the rent of the aforesaid two months has been remitted on 1.2,1984. Therefore, the evidence of the defendant that he has remitted the rent on 31.1.1984 is a false one and it has to be disbelieved. It is equally pertinent to mention here that the defendant in his evidence on oath has not disclosed the specific date on which he had tendered the rent for the month of November and December 1983 to the plaintiff. He is also conspicuously silent regarding the date on which the plaintiff had refunded the amount of rent aforesaid to the defendant. He is also conspicuously silent regarding the date on which the plaintiff had refunded the amount of rent aforesaid to the defendant. The dates are very vital having their relevancy in this case for remittance of the rent of the aforesaid two months on 1.2.1984 so as to have the protection to the defendant-appellant of the ratio of the case of Raj Kumar Prasad (supra) in this case. The amount of two months rent lawfully payable by the tenant has to be tendered by the last day of the month next following that for which the rent is payable or by having been validly remitted under Section 19 of the said Act. There is no evidence on the record brought by the defendant to show that he has tendered the rent of two months aforesaid on the last day of the month next following i.e. the month of January. There is also no evidence on the record that rent so paid and received by the defendant- appellant has been refunded to him on the last day of the month next following that for which the rent was payable though this evidence is not relevant being against the pleadings of the defendant. Therefore, the remittance of rent by postal money order (Ext. C) on 1.2.1984 of the two months rent aforesaid is of no avail to the defendant-appellant to save him from being defaulter liable to be evicted from the suit premises. Therefore, the ratio of the case of Raj Kumar Prasad (supra) is of no help to the defendant-appellant. It was held in the case of Smt. Priya Bala Ghosh and others (supra) by the Apex Court that once the tenant has remitted the rent by money order before the last date ran out that was sufficient and in that case there will be no default in payment of rent. Here in this case, the rent of the month of November and December 1983 was remitted not on the last date of the month next following for which the rent was payable and as such the defendant-appellant is a defaulter. I, therefore, see no substance in the contention of the learned counsel for the appellant in respect thereof. Therefore, I see no illegality in the impugned judgment of both the Courts below in respect thereof. 12. Both the Courts below have concurrently negatived the claim of adjustment of Rs. I, therefore, see no substance in the contention of the learned counsel for the appellant in respect thereof. Therefore, I see no illegality in the impugned judgment of both the Courts below in respect thereof. 12. Both the Courts below have concurrently negatived the claim of adjustment of Rs. 5260/- as claimed by the defendant-appellant and for that they have assigned cogent reasons. Here in this case, there is no written agreement regarding the terms of the tenancy and thus it shall be presumed that it was a month-to-month tenancy. P.W.1, the plaintiff has deposed that the rent was enhanced of the suit premises with the consent of the parties. He has denied the fact that the defendant has ever claimed for adjustment of the amount of rent which was enhanced from time to time. He has also denied that he has realized Rs. 5260/- from the defendant illegally. D.W.2, the defendant in para-11 of his evidence has deposed that he cannot say as to whether the rent was enhanced by consent of the parties or under pressure. In his evidence he has not whispered that he has ever claimed adjustment of the amount illegally enhanced. The suit premises was let out to the father of the defendant-appellant in the year 1946 and on five occasions as per Exts. A/2, A/3, A/4, A/8 and A/11 if the plaintiff- respondent has accepted the rent of several months together from the father of the defendant-appellant and last being the rent for the month of May and June 1978 on 2.1.1978 is not sufficient in itself to establish the fact of an existence of an implied agreement regarding a different mode of the payment of the rent by the defendant-appellant regarding the suit premises. Furthermore, the defendant in his written statement has not disputed the mode of the tenancy being month to month and payment of monthly rent of the suit premises in the next following month. Therefore, the ratio of the case the Rashik Lal and others (supra) is also of no avail to the defendant-appellant. 13. It is the concurrent finding of both the Courts below that the plaintiff- respondent requires the suit premises reasonably and in good faith for his own business as well as for the business of his sons who are unemployed and dependent upon him. 13. It is the concurrent finding of both the Courts below that the plaintiff- respondent requires the suit premises reasonably and in good faith for his own business as well as for the business of his sons who are unemployed and dependent upon him. The learned Appellate Court below in para-9 of its judgment has considered the pros and cons of the matter in controversy regarding the personal necessity of the plaintiff of the suit premises and has stated therein that the witnesses examined on behalf of the plaintiff-respondent have all supported the case of the plaintiff-respondent that his three sons are unemployed and two of them sit with the plaintiff-respondent in his shop which he runs on rent in the house of his nephew Pradip Kumar Modi on monthly rent of Rs. 200/- and said Pradip Kumar Modi has asked the plaintiff-respondent to vacate the said premises and Pradip Kumar Modi as P.W.2 has asked the plaintiff to vacate the said shop as he has the personal necessity of the said premises. The learned Appellate Court below has also held that the shop in which the plaintiff runs his business has fallen in the share of Pradip Kumar Modi on partition of the year 1975. The learned Appellate Court below has come to the finding that Anil, the son of the plaintiff-respondent runs a video shop. Therefore, it cannot be said that the learned Appellate Court below has not considered the evidence brought on the record on behalf of the defendant regarding the matter in controversy, The absence of threadbare discussion of the evidence of the defendant-appellant regarding the personal necessity of the plaintiff in controversy does not at all vitiate the finding of the Appellate Court below in respect thereof in view of the fact that it has concurred with the said finding arrived at by the trial Court and has confirmed it. It is the correct preposition of law that while reversing the trial Court judgment, the Appellate Court could consider the evidence and also the reasonings of the trial Court and give its own reasons for not agreeing with the findings of the trial Court. In case of affirming the finding of the trial Court there is no such rigour for the first Appellate Court. In case of affirming the finding of the trial Court there is no such rigour for the first Appellate Court. Here in this case, there is no illegality in the concurrent finding of both the Courts below regarding the bona fide requirement of the suit premises in good faith of the plaintiff, It cannot be said in the fact and circumstances of this case and as per the discussions made in para-9 of the impugned judgment that the Appellate Court has mechanically affirmed the finding of the trial Court without due and proper application of the mind. Therefore, the ratio of the case of State of Rajasthan (supra) is equally of no help to the defendant-appellant. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of facts being the first Appellate Court. The High Court cannot also substitute its opinion for the opinion of first Appellate Court unless it is found that the conclusions drawn by the lower Appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of the pronouncement made by the Apex Court or was passed upon inadmissible evidence or arrived at without evidence. Therefore, it cannot be said in the context of this case that the learned Appellate Court below has misdirected himself in affirming the finding of the trial Court regarding the bona fide requirement in good faith of the suit premises of the plaintiff. And last but not the least, there is no material at all on the record to show the existence of any subsequent event in this case brought on the record by the defendant-appellant so as to mould the relief in the light of those subsequent events and thus the ratio of the case of M/s Variety Emporium (supra) is not applicable in this case. Inspite of the death of the original plaintiff, there remains the reasonable and bona fide requirement of the suit premises for the two unemployed sons of the original plaintiff for setting them in business. Inspite of the death of the original plaintiff, there remains the reasonable and bona fide requirement of the suit premises for the two unemployed sons of the original plaintiff for setting them in business. In the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujur and Ors., AIR 1999 SC 2213 , it has been observed by the Apex Court that concurrent finding of facts howsoever erroneous cannot be interfered with in second appeal and here in this case, the concurrent finding of both of the Courts below are based on proper appreciation of the evidence on the record and it is not based upon inadmissible evidence or arrived at improper evidence. I, therefore, see no illegality in the concurrent findings of the Courts below that the defendant is a defaulter and the plaintiff reasonably and in good faith requires the suit premises for the use and occupation of his own sons for whose benefit the suit premises is held by him. 14. There is no merit in this appeal and it fails. The appeal is hereby dismissed. The impugned judgment of the learned Appellate Court below is hereby affirmed. However, there will no order as to cost.