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2015 DIGILAW 1260 (JHR)

Baijnath Yadav v. Nund & Samont Co. Pvt. Ltd.

2015-10-08

D.N.UPADHYAY

body2015
Order : This Second Appeal has been preferred against the judgment dated 17th October, 2011 and decree dated 14.11.2011 passed and signed by the District Judge, Koderma in Eviction (T) Appeal No. 04/2010 whereby the judgment dated 04.08.2010 and decree dated 07.08.2010 passed and signed by Munsif, Koderma in Eviction Suit No. 03/2009 have been upheld. 2. The appellant was the defendant and the respondent was the plaintiff in the Trial Court. 3. The facts in brief is that the defendant was inducted as a tenant in the suit premises in the month of April, 1993 on monthly rent of Rs. 225/- which was duly enhanced and it was Rs. 350/- per month at the time of filing of the suit. 4. It is contended that since the month of September, 2008 the defendant failed in making payment of rent and further filed an application before the Rent Controller for fixation of fair rent vide case No. 06/2008. 5. The plaintiff has also made out a case that suit premises in good faith and reasonably required for its personal use and occupation. It was contended that the building in which suit premises is situated is commercial one and it was required for personal use and occupation by the plaintiff. Lastly, the plaintiff brought a suit vide Eviction Suit No. 03/2009 in the Court of Munsif, Koderma for evicting the defendant from the suit premises under the provision contained under Section 11(1) (c) and 11 (1) (d) of the Bihar Buildings (Lease Rent and Control) Act. 6. The defendant/appellant appeared before the court-below and denied the allegations and the averments made by the plaintiff. It was contended that the suit shop is situated outside the building and it was not required by the plaintiff for its personal use and occupation. So far willful default in making payment of rent is concerned, it was contended that whenever bill was raised, the defendant used to pay the same. Since no bill was raised for the period in question, the defendant did not make payment. As a matter of fact, the plaintiff was in habit of raising bills as and when it required and it is incorrect to say that for every month's rent, bill was raised. 7. Since no bill was raised for the period in question, the defendant did not make payment. As a matter of fact, the plaintiff was in habit of raising bills as and when it required and it is incorrect to say that for every month's rent, bill was raised. 7. The plaintiff as well as the defendant adduced their evidence in support of their claim and the contention made in the plaint as well as in written statement. The learned Munsif after considering the evidence and document on record decreed the suit in favour of the plaintiff considering the grounds taken under Section 11(1) (d) of the B.B.C. Act and decided the issue relating to Section 11(1) (c) against the plaintiff. The defendant then preferred Eviction (T) Appeal No. 04/2010 before the District Judge-Koderma which stood dismissed and the judgment and decree passed by the Trial Court have been upheld and hence this Second Appeal. 8. It is mainly contended that tenancy was not month to month rather the plaintiff which is a Company has been raising bill against the defendant for the use and occupation of the suit premises. The practice adopted by the plaintiff was that he had not been raising bills against rent for every month. Therefore, both the courts below have wrongly considered the issue and hence substantial question of law is involved to decide the appeal. 9. Counsel appearing for the respondent-plaintiff has raised objection and submitted that the defendant-appellant was tenant on month to month and he was under obligation to pay rent for every month, if there will be no express agreement at least by the end of next following months. 10. Counsel appearing for the respondent-plaintiff has relied on the judgment reported in 1986 P.L.J.R. Page 46 (S.C.) and A.I.R. 2003 S.C.C. 1637. 11. Be that as it may, it is not disputed that the defendant-appellant was tenant under the plaintiff and the tenancy was month to month. It is further admitted case of the defendant that he failed to pay rent from the month of September, 2008. There is concurrent finding of both the courts that relationship between plaintiff and the defendant has been established and the defendant-appellant stood defaulter in making payment of rent for two months consecutively. do not find any substantial question of law is required to be framed for just decision of this appeal. 12. There is concurrent finding of both the courts that relationship between plaintiff and the defendant has been established and the defendant-appellant stood defaulter in making payment of rent for two months consecutively. do not find any substantial question of law is required to be framed for just decision of this appeal. 12. In the result, the appeal appears to be devoid of merit and the same stands dismissed.