Research › Search › Judgment

Jharkhand High Court · body

2004 DIGILAW 784 (JHR)

Mukul Kumar Sinha v. Kashi Nath Keshri

2004-08-05

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balasubramanyan, C.J. 1. This is revision filed by the defendant Under Section 115 of the Code of Civil Procedure though in the memorandum of revision, Section 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act") has been invoked, but Mr. Raj Nandan Sahay, learned counsel for the revision petitioner submits that it is a mistake and the Revision will be Under Section 115(1) of theCode of Civil Procedure, Ii may also be noted that if the landlord had withdrawn his claim Under Section 11(1)(d) of the Act, on the ground of default in payment of rent, the order of eviction can be one Under Section 14 of the Act. In any event, what this Court has to consider is whether the Court below was justified in ordering eviction Under Section 11 (l)(e) of the Act, based on the pleadings in the case. 2. The revision was taken-up with consent of counsel for final disposal even on the delay being condoned. Both sides were heard in detail. 3. The defendant is the petitioner. The respondent landlord filed a suit for eviction of the defendant under Section (l)(e) read with Section 1 l(l)(d) of the Act. The plaintiff pleaded that the term of the lease expired by 30.9.2000 and since it was a lease for a fixed term, the plaintiff was entitled to a decree for recovery under Section ll(l)(e) of the Act on expiry of that term. He also pleaded that subsequent to July, 2000, no rent has been paid by the tenant ajid since there was a default in payment of rent, he was also entitled to a decree under Section ll(l)(d) of the Act. The defendant admitted that the last lease deed executed between the parties was for a term of eleven months and the term expired on 30.9.2000, but the tenant pleaded that subsequent to July, 2000, the landlord had refused to receive the rent tendered by him. He had sent rent by money order which has also been refused. Me was thereafter regularly sending the rent by money order and all Lhe money orders have been refused. He was continuing as a month to month tenant subsequent to the expiry of the term of the lease. He also pleaded that an advance of Rs. He had sent rent by money order which has also been refused. Me was thereafter regularly sending the rent by money order and all Lhe money orders have been refused. He was continuing as a month to month tenant subsequent to the expiry of the term of the lease. He also pleaded that an advance of Rs. 30.000/- was with the landlord and that the rent was not in arrears and he could not be evicted on the ground of default in payment of rent. 4. The plaintiff, in the face of the written statement, filed a petition praying that he may be granted a decree for eviction under Section ll(l)(e) of the Act, on the admission of the defendant as contained in the written statement. He submitted that in view of the stand taken in the written statement, regarding default, he was not pursing his claim Under Section 1 l(l)(d) of the Act, on the ground of default in payment of rent. The . defendant resisted the petition by reiterating that he was continuing as a tenant from month to month subsequent to 30.9.2000 and there was no question of a decree for, eviction being passed on admission under Section -1 l(l)(e) of the Act. The trial Court, on a reading of the written statement, came to the conclusion that the written statement contained an admission that the defendant was holding on the basis of a lease for a term and the term having expired, in the light of the plea taken in the written statement, the plaintiff was entitled to a decree especially since the plaintiff gave up the claim for eviction Under Section 1 l(l)(d) of the Act. Thus a decree for eviction based on the plea in the written statement was granted. This is what is challenged in this revision. 5. The plaintiff in his plaint specifically set out a plea that the last lease deed which was for a term of eleven months commencing from 1.11.1999 till 30.9.2000, was executed on 19.5.2000 and it was on the, basis of that lease deed that the defendant was in possession and on expiry of the term in the lease deed, he was entitled to a decree for eviction Under Section 1 l(l)(e) of the Act. 6. The defendant admitted the execution of the .deed. 6. The defendant admitted the execution of the .deed. In paragraph 8(ii) of the written statement, the defendant pleaded that : "Plaintiff has further executed the agreement of monthly tenancy on 19,5.2000 in favour of defendant for Schedule-A premises on the monthly rental of Rs. 350/- expiring on 30.9.2000." In paragraph 8(iii) of the written statement, the defendant pleaded that: "Defendant has been continuing as a month to month tenant under the plaintiff for Schedule-A, premises in the plaint on payment of Rs. 350/- per month till date." But in paragraph 11 of the written statement, the defendant pleaded that the plaintiff had not received rent from the month of August, 2000 though the same was tendered to him and thereafter-the same was sent by money order but the plaintiff refused to accept the money order. The defendant then pleaded that "there after the defendant has been sending the monthly shop rent to the plaintiff by Postal Money Order at the rate of Rs. 350/- per month on and from the month of August, 2000 till the month of September, 2001 month wise regularly and the plaintiff has been systematically refusing the same to receive It and, in that view of the matter, the defendant cannot be treated as defaulter in payment of monthly shop rent to the plaintiff. 7. Learned counsel for the defendant contended that the trial Court was in error in treating the plea in the written statement as an admission to pass a decree under Section ll(l)(e) of the Act. Counsel pointed out that even though the execution Of the; lease deed on 19.5.2000 was admitted and that the term of that lease deed expired ion; 30.9.2000 was also admitted, the same was coupled with the assertion that sub-sequently the defendant was continuing as a month to month tenant. Counsel sub-mitted that that question requires to be decided in this application in the context of the fact "that when the landlord refused to receive the rent, the tenant has a right to tender the same by way of rnoney order Under Section 19(1) of the Act. It was, therefore, pointed out that the Court below was an error in decreeing the claim on the admission of the defendant. It was, therefore, pointed out that the Court below was an error in decreeing the claim on the admission of the defendant. Counsel pointed out that the admission has to be read as a whole or not at all and it was not open to the Court to bifurcate the plea in the written statement to cull-out an admission by discarding the rest of the plea following that admission..Learned counsel for the plaintiff-respondent on the other hand submitted that the execution of the lease deed for a term was clearly admitted in the written statement. He further sub-mitted that in the face of that admission, the landlord was entitled to a decree for eviction Under Section 1 l(l)(e) of the Act, on the expiiy of the term. He pointed out that the claim for eviction under Section ll(l)(d") of the Act, was given up. In this context the Court below was justified in granting a decree. It is true that an admission must be taken as a whole and it should not be read in such a manner as to accept a part of it and discard the other part of it. But I find from the written statement that in addition to admitting that the tenant had executed a lease deed for a term and that the term had expired, what is pleaded is that subsequently the defendant had become a tenant from month to month or a tenant by holding over to bring about a continuing relationship of landlord and tenant with the assent of the landlord by either receiving rent or otherwise. Here, what is pleaded in the written statement is that after August, 2000, after the expiiy of the term, the landlord had refused to accept the rent and the tenant was remitting rent by way of money order. It is also stated. that the money orders were being., systematically refused by the landlord. In other words, the plea in the written statement itself is that subsequent to the expiry of the term, the landlord had refused to; accept rent from the tenant; that is to say that on expiry of the term of the lease on 30.9.2000, the landlord had refused to receive any rent from the tenant. There is no case that the landlord has otherwise consented to the continuance of the tenancy. There is no case that the landlord has otherwise consented to the continuance of the tenancy. In this situation, a reading of the written statement as a whole, shows an admission that the tenant was holding under a lease for a term and after the expiry of the term, there was no consent for his continuance as a tenant so as to attract the provisions of Section 116 of the Transfer of Property Act. In this situation, 1 cannot say that the trial Court had acted without jurisdiction or committed any . material irregularity in exercise of its jurisdiction .in proceedingto pass a decree on the basis of the .admission contained in the written statement. I am, therefore, not satisfied that 1 would be justified in interfering with the decree in exercise of my revisional jurisdiction. 8. I, therefore, confirm the decision of the Court below and dismiss the revision. I make no order as to costs. 9. Counsel for the defendant sub-mitted that some time may be granted to the.tenant for vacating the premises. This request is opposed on behalf of the landlord by his counsel. But considering the fact that the landlord is getting an order of eviction even without a trial which normally takes in this State a time of five years, I am satisfied that a period of six months can be granted to the tenant for vacating the. premises. The tenant will be entitled to continue in the building on condition that he pays the entire rent, in arrear to the landlord within a period of six weeks from today and files an undertaking by way of an affidavit in the Trial/Executing Court with an unconditional undertaking to vacate, the building and handover /c/ias possession of the building to the landlord on the expiry of the six months from this date. If either of the conditions is not fulfilled, the,,landlord will be entitled to execute the decree for eviction forthwith.