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2012 DIGILAW 1319 (PAT)

Shree Binoy Kumar Singh @ Binoy Kumar Singh v. Kailashi Devi

2012-09-17

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned senior counsel, Mr. Rajendra Narayan appearing on behalf of the appellant and the learned senior counsel, Mr. T. N. Matain appearing on behalf of the respondent under Order 41 Rule 11 C.P.C. 2. This second appeal has been filed by the defendant-appellant appellant against the Judgment and Decree dated 8.6.2009 passed by Sri Arbind Madhav, learned 7th Addl. District Judge, Bhagalpur in title appeal No.7 of 2001/2 of 2009 whereby the lower appellate Court dismissed the appeal and confirmed the Judgment and Decree of the trial Court dated 15.12.2000 passed by the learned Munsif IInd, Bhagalpur in Title Eviction suit No. 26 of 1994 whereby the trial Court decreed the plaintiff-respondent’s suit for eviction on the ground of default only. 3. The plaintiff-respondent filed the aforesaid suit for eviction of the defendant from suit premises on the facts inter alia that the defendant has not paid the rent from the month of January, 1982 up-to-date amounting to Rs.8820/-. There was litigation between the plaintiff and her brothers Anil Kumar Jilota and in the title suit No.164 of 1979, a compromise application was filed which was recorded and the suit was disposed of on 30th June, 1992 whereby the plaintiff was declared to be the owner of the suit premises and, thereafter, the present plaintiff sent notice demanding rent from the defendant at the rate of Rs.70/- per month and also demanded to produce municipal tax so that it may be adjusted towards the rent from the month of January, 1982 onwards. In this notice, the plaintiff also demanded the current rent. In spite of the fact that the notice was received by the defendant, the defendant neither paid the rent nor paid the arrears of rent amounting to Rs.8820/-. He only paid Rs.500 in cash and municipal tax amount to Rs.2661.80/-. After adjustment also, there is dues of Rs.5658.20/-, thereafter, also the current rent from the month of July, 1992 was not paid. The suit was filed in the year, 1994. 4. The defendant’s defence was that the plaintiff is entitled to recover the rent from 3 years prior to institution of the suit and not more than that as the same will be barred by law of limitation. The suit was filed in the year, 1994. 4. The defendant’s defence was that the plaintiff is entitled to recover the rent from 3 years prior to institution of the suit and not more than that as the same will be barred by law of limitation. The defendant has paid municipal tax from the month of January, 1982 amounting to Rs.5474.12/- and if that amount is adjusted then there is no defaulter because the said amount will cover the rent upto the year 1998. After receiving the notice, the defendant produced the municipal tax receipts and also paid Rs.500/- but the landlord adjusted only 2668/-. In view of the above facts, if the amount is adjusted, the defendant is not a defaulter. 5. After considering the materials available on record, the trial Court recorded the finding that the defendant is a defaulter. On appeal, the appellate Court found that the municipal tax paid by the defendant is not automatically adjustable because the defendant never claimed for adjustment in the suit and the lower appellate Court also recorded the finding that the defendants is of defaulter. 6. The learned senior counsel, Mr. Rajendra Narayan appearing on behalf of the appellant submitted that the case of the defendant has not properly been considered by both the Courts below. The municipal tax was paid by the defendant from the month of January, 1982 because nobody was collecting the rent from the defendant and there was restraint order passed by High Court in receivership matter whereby the present plaintiff and her brother Anil Jilota were restrained from collecting the rent. It is not the fault on the part of the defendant. Therefore, he was only paying the municipal tax. On the basis of compromise only, the plaintiff became the owner of the property as such the entire tax amount paid from the month of January, 1982 is liable to be adjusted towards the arrears of rent 3 years prior to institution of the suit. Prior to three years, the rent cannot be demanded as, it is barred by law of limitation. None of the Courts below have considered this aspect of the matter. No issues were also framed. Therefore, the Judgments of both the Courts below are vitiated. 7. On the other hand, the learned senior counsel, Mr. Prior to three years, the rent cannot be demanded as, it is barred by law of limitation. None of the Courts below have considered this aspect of the matter. No issues were also framed. Therefore, the Judgments of both the Courts below are vitiated. 7. On the other hand, the learned senior counsel, Mr. T. N. Matain submitted that it is not the fact that this aspect of the matter was not considered by both the Courts below. In fact, this was the only dispute between the parties. Both the Courts below, therefore, considered this aspect of the matter only and recorded the finding that since the defendant never demanded adjustment, the municipal tax could not have been automatically adjusted towards the rent. 8. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court has relied upon the case of Vijay Kumar Chaurasia vs. Shakuntala Devi, 1995 (1) P.L.J.R. 78 wherein it has been held that the tenant without calling upon the respondent to adjust the excess payment towards arrears of rent cannot seek such right in the suit filed by the landlord for eviction. 9. From perusal of the Judgment, it appears that the defendant never demanded the adjustment. On the contrary, it appears that the respondent served a notice on the appellant and called upon him to produce the tax receipt so that the amount may be adjusted towards the arrear of rent. Pursuant to that notice, the defendant only produced some of the municipal tax and paid only Rs.500/- which has been adjusted. Even, thereafter the service of notice whereby the appellant was demanded by the plaintiff to pay the current rent, the appellant did not pay the rent from the month of July, 1992 till the institution of the suit and, therefore, both the Courts below recorded the finding that the defendant is a defaulter, as rent for more than 2 months have not been paid by the defendant. So far non-framing of issues is concerned also, it appears from the lower appellate Court Judgment that the appellate Court has clearly mentioned this point and decided this matter and moreover even if there is no specific issue regarding this point then also it can very well be said that both the parties entered into the trial knowing the case of each other and produced evidences in support of their case, therefore, no prejudice has been caused to any of them for non-framing of any issue. In such circumstances, it cannot be said that the Judgment is vitiated. Reference may be made in this connection in the case of Nedunuri Kameshwaramma vs. Sampati Subba, A.I.R. 1963 SC 884. 10. Recently, the Apex Court in the case of Vishwanath Agrawal vs. Sarla Vishwanath Agrwal, 2012 (7) S.C.C. 288 paragraph 37, the Apex Court has held that in second appellate jurisdiction, the High Court should not interfere with the finding of facts unless it is shown that no reasonable person could record the same finding on the basis of the materials available on record or that the finding recorded by the Courts below are perverse. 11. In the present case as stated above, both the Courts below considering all the aspects of the matter have recorded the finding of fact that the defendant-appellant is defaulter and admittedly, the appellant has not paid the rent. His defence is only that the amount of municipal tax should be adjusted. I, therefore, find that no substantial question of law is involved in this second appeal. Therefore, this second appeal is dismissed at the admission stage itself.