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2009 DIGILAW 1024 (JHR)

Hari Narayan Deo v. Md. Akhtar

2009-07-23

N.N.TIWARI

body2009
Order In this writ petition, the petitioner has prayed for quashing the order dated 6th December, 2008 passed by learned Additional Munsif, Hazaribagh in Eviction Suit no. 2 of 2000, whereby learned Munsif has rejected the application filed under Section 15 of the Bihar Buildings (Lease, Rent & Eviction) Control Act (hereinafter to be referred as the 'Act'), holding that a fresh order under Section 15 of the Act cannot be passed. 2. The brief facts of the case is that the plaintiff-petitioner filed second petition dated 8th July, 2008 for a direction on the defendant-respondent to deposit the arrears of rent since April, 1998, as well as the current rent and future rent at the rate of Rs. 1,000/- per month as was fixed by the House Rent Controller by order dated 16th June, 1998. 3. Earlier in the said suit for eviction, the plaintiff had filed a petition under Section 15 of the Act, seeking a direction on the defendant to deposit the admitted monthly rent of Rs. 500/- per month. After hearing the parties, the court below by order dated 4th October, 2004 had allowed the plaintiff's petition, directing the respondent to deposit the arrears of rent as well as current rent @ Rs. 500/- per month, that is at the admitted rate of rent last paid. Learned court below by order dated 4th October, 2004 also allowed the plaintiff to withdraw the deposited amount. 4. The plaintiff had filed second petition under Section 15 of the Act, whereby he had prayed for a direction on the defendant-tenant to deposit monthly rent @ of Rs. 1,000/- per month. The plaintiff claimed that the said rate of rent was fixed by the House Rent Controller by order dated 16th June, 1998 i.e. much before the order dated 4th October, 2004 passed by learned court below under Section 15 of the Act. 5. The said order of the House Rent Controller was challenged in appeal and revision, but the defendant did not succeed. He filed a writ petition before this Court, which was also dismissed. 6. The plaintiff-landlord claimed that he should be paid monthly rent according to the order of the House Rent Controller. 7. The said prayer was objected by the defendant-tenant. He filed a writ petition before this Court, which was also dismissed. 6. The plaintiff-landlord claimed that he should be paid monthly rent according to the order of the House Rent Controller. 7. The said prayer was objected by the defendant-tenant. It was stated, inter alia, that the plaintiff has sought payment of monthly rent on the basis of the order of the House Rent Controller, which included the arrears of the rent of the period prior to institution of the suit. On the said amount, no court fee was paid and that arrear was not claimed in the suit. Further, that once an order was finally passed, disposing of the petition under Section 15 of the Act, subsequent petition is not maintainable. It has been also stated that in the garb of the said petition, the plaintiff made claim of time bound arrears of rent of Rs. 66,000/-. Learned court below considered the point that when an order under Section 15 of the Act is passed after hearing both the parties, whether the petition is maintainable and a fresh order can be passed. 8. Learned court below after considering the submissions of both the parties, the case laws cited before him and also the provision of law, came to the conclusion that once an order has been passed under Section 15 of the Act after hearing the parties, a fresh order cannot be passed. Learned court below has, thus, held the petition not maintainable and rejected the prayer. 9. Learned counsel appearing on behalf of the petitioner submitted that though the House Rent Controller had passed the order before institution of the suit, the arrears and current rate of rent in the earlier petition should not be claimed, as the order was under challenge before the higher authorities and now that the petitioner's writ petition has been dismissed, he has filed a fresh petition under Section 15 of the Act. Learned counsel further submitted that when the order has been passed by the House Rent Controller, the Court has to order to deposit the arrears of rent according to the order passed by the House Rent Controller and not @ last paid and having not done so learned court below has committed serious error, which warrants to be rectified by this Court. 10. 10. Learned counsel referred to and relied upon decisions of the Patna High Court in Syed Abid Imam vs. Sharafat Hussain [ AIR 1999 Pat. 32 ] [:1998(2) PUR 619] and Arun Kumar Agarwal & Ors. vs. Gaurav Krishna Sahaya 1999(2) BBCJ 353] [ : 1999(3) PUR 120]. In both the decisions it has been held that if the order has been passed by the Rent Controller before the institution of the suit, the rate of rent fixed by the Rent Controller is the rate of rent which should be ordered by the Court under Section 15 of the Act. 11. In order to appreciate the contentions raised by learned counsel, it is worthwhile to quote Section 15 of the Act:- "15. Deposit of rent by tenants in suits for ejectment.-(1) If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the Court after giving opportunity to the parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before or after the institution of the suit if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he had not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord's witnesses. (2) If in any proceeding referred to in sub-section (1) there is any dispute as to the person or persons to whom the rent is payable the Court may direct the tenant to deposit in Court the amount payable by him under sub-section (1) and in such case no person shall be entitled to withdraw the amount in deposit until the Court decides the dispute and makes an order for payment of the same. (3) If the Court is satisfied that any dispute referred to in sub-section (2) has been raised by a tenant for reasons which are false or frivolous the Court may order the defence against the eviction to be struck off and proceed with the hearing of the suit as laid down in sub-section (1)." 12. On plain reading of the provision of Section 15 of the Act, it is clear that during the pendency of the suit, if the suit is contested by the tenant regarding claim of ejectment, landlord can move an application at any stage for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation and arrears of rent, if any. The statute, thus, gives it clear guideline for determining the rate of rent while considering an application of the landlord under Section 15 of the Act. 13. In the instant case, the petitioner moved an application dated 7th September, 2004 under Section 15 of the Act, which was disposed of after hearing both the parties by order dated 4th October, 2004. At that point of time, it was admitted that the last rent paid was Rs. 500/- per month. The petitioner claims that the order of the Rent Controller was passed earlier, but even after the order of the Court passed on the basis of the last paid rent, no objection was raised and that was accepted by him. He was also paid rent, which was withdrawn by the petitioner. The said order has, thus, become final between the parties. There was no objection at any time against the said order on behalf of the plaintiff-petitioner. 14. According to the petitioner, a liberty was given to him to claim the enhanced rate of rent. He was also paid rent, which was withdrawn by the petitioner. The said order has, thus, become final between the parties. There was no objection at any time against the said order on behalf of the plaintiff-petitioner. 14. According to the petitioner, a liberty was given to him to claim the enhanced rate of rent. However, no opportunity was given to claim the enhanced rate of rent by filing an application under Section 15 of the Act. 15. The second petition, claiming enhanced rent under Section 15 of the Act is, thus, not maintainable, as no such provision has been made in the said Section. Learned court below has considered the said provision and has passed the sound and legal order. Learned court below has also observed that so far the claim of enhanced rate of rent is concerned, the petitioner is at liberty to make claim before the appropriate forum. 16. The decisions in Syed Abid Imam and Arun Kumar Agarwal & Ors. (supra) are not based on the said facts. In the said cases, landlord has challenged the order passed by the Rent Controller when it was passed, but in the instant case, the tenant did not challenge the order of the Rent Controller and it was accepted by him and he also withdrew the amount deposited and that order became final and binding. 17. I, therefore, find no merit in this writ petition, which is, accordingly, dismissed.