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2019 DIGILAW 1318 (JHR)

Shiv Kumar Sao v. Kunal Chakraborty

2019-07-22

ANANDA SEN

body2019
ORDER : 1. This appeal, under Section 100 of the Code of Civil Procedure, is directed against the judgment & decree dated 04.09.2017 and 11.09.2017 respectively, passed in Civil Appeal No. 3 of 2017, by the Principal District Judge, Singhbhum West at Chaibasa, whereby the First Appellate Court has reversed the judgment/decree of the trial Court dated 21.12.2016 & 09.01.2017, respectively, passed in Title Suit No. 5 of 2012, by the Civil Judge, Jr. Division, Singhbhum West at Chaibasa. 2. The plaintiff-landlord has filed an eviction suit being Title Suit No. 05 of 2012, under Section 11, Sub-Clause 11(1), 11(c), 11(d) and 11(i) (e) of Jharkhand Building (Lease & Rent) Control Act, praying for eviction of the defendant and for the relief of recovery of arrears of rents. 3. The plaintiff’s case is that the plaintiff is the owner and landlord in respect of three shop rooms standing on municipal holding no. 35, within Ward no. 05 (old), new Ward no. 07 of Chaibasa Municipality Mohalla Tungri. The defendants were the tenant of the plaintiff and the tenancy commenced on 01.08.2010, when a rent agreement was entered into between the parties. The tenancy was as per English calendar month, but the defendant failed to pay the rents and thus, they were liable to be evicted on the ground of defaulter. The plaintiff claimed that he is entitled to receive a sum of Rs. 16000/- as an arrear of rent also. It is also the case that the suit premises is required for his son, who wants to open a show room for electronic goods. The plaintiff claimed that he had also filed an eviction suit for evicting the tenants from the shop room nos. 1 & 3, which would be necessary to settle his son, thus; partial eviction will not serve the purpose. 4. The defendants appeared and filed their written statement and had taken a plea that the shop was being run for the last 30 years and the agreement was executed due to pressure given by the plaintiff. Their claim is that the plaintiff used to take grocery items for daily use and at the end of the month, calculation use to be made and the rent was used to be adjusted against the price of the grocery items. It is stated that in case, the amount fell short, defendant no. Their claim is that the plaintiff used to take grocery items for daily use and at the end of the month, calculation use to be made and the rent was used to be adjusted against the price of the grocery items. It is stated that in case, the amount fell short, defendant no. 1 used to pay the balance amount and in case the amount of articles exceeded the rate of rent, the plaintiff’s father or the plaintiff used to pay the excess amount in cash. They further stated that no amount of rent is due. 5. On the said pleadings, 12 issues were framed by the trial Court, out of which, issue nos. (V) to (X) are important, which are quoted herein-below:- “(I) to (IV)…. (V) Whether plaintiff has got bonafide personal necessity to evict the defendant from the suit property on that ground? (VI) Whether defendant is a defaulter and is liable to be evicted from the suit property on that ground? (VII) Whether defendant is liable to be evicted from the suit premises on the ground of expiry of period of tenancy? (VIII) Whether plaintiff is entitled to recover a sum of Rs. 800/- per month towards arrears of rent due from the month of August, 2010? (IX) Whether defendant had deposited a sum of Rs. 20,000/- with the father of the plaintiff late K.K. Chakraborty at the inception of the tenancy? (X) Whether the rent used to be adjusted against the price of the grocery articles purchased by plaintiff from defendant’s shop?” 6. The trial court decided issue no. (V), i.e. the issue of personal necessity against the plaintiff. The issues of default and eviction on the expiry of the period of tenancy were also decided against the plaintiff. The Court held that the plaintiff admitted that the rent was being adjusted against the price of grocery items. Thus, it is not the case of default. 7. So far as issue nos. (VIII) & (IX) are concerned, which relate to recovery of arrears of rent from the month of August, 2010, the trial Court held that the plaintiff has proved that he is entitled to recover a sum of Rs. 800/-per month towards arrears of rent due from the month of August, 2010. 7. So far as issue nos. (VIII) & (IX) are concerned, which relate to recovery of arrears of rent from the month of August, 2010, the trial Court held that the plaintiff has proved that he is entitled to recover a sum of Rs. 800/-per month towards arrears of rent due from the month of August, 2010. The suit for eviction was party decreed on contest only to the effect that the plaintiff was entitled to withdraw the arrears of rent from August, 2010 to March, 2012. 8. The plaintiff-landlord preferred an appeal against the said judgment. The first Appellate Court framed three questions, which are as follows:- “(i) Whether there is relationship of landlord and tenant between the appellant/ plaintiff and defendants/respondents or not? (ii) Whether the findings of learned lower Court with respect to Section 11(1)(c) Jharkhand Building (Lease, Rent and Eviction? Control Act as issue No. (5) is sustainable or not? (iii) Whether the findings of the learned lower Court under Section 11(1)(d) Jharkhand Building (Lease, Rent and Eviction) Control Act and part decree for arrears of rent is sustainable or not?” 9. After considering the evidence of the parties, the first Appellate Court held that there is a relationship of landlord and the tenant between the parties. The Court also held that the defendants are the defaulter for more than two months. Thus they are entitled to be evicted. 10. Against the said judgment, the defendants-tenant has preferred this second appeal. 11. Learned counsel for the appellants submits that the trial Court has failed to take into consideration that there was an arrangement between the parties. The plaintiff used to take grocery from the defendants and the rent was adjusted. He submits that the First Appellate Court failed to appreciate the aforesaid fact, which was correctly appreciated by the trial court. He submits that if that be so, the defendants/tenant cannot be in default in respect of payment of rent. 12. After going through the judgments of both the Courts below, I find that only plea taken by the tenant is that the rent was being adjusted against the monthly grocery. As per law, if the rent of two months has not been paid, default takes place. Admittedly, there is an agreement of tenancy between the parties and the defendants are the tenant of the plaintiff. As per law, if the rent of two months has not been paid, default takes place. Admittedly, there is an agreement of tenancy between the parties and the defendants are the tenant of the plaintiff. It is not the case of the parties that the agreement contains a clause that the rent will be adjusted against the monthly grocery. That being so, the defendants cannot take a plea that the rent was being adjusted against monthly groceries. 13. The Hon’ble Patna High Court in the case of Maksudan Prasad Kesarwant alias Maksudan Prasad vs. Abid Ahmad, 1987 PLJR 260 , has held that the amount of rent cannot be adjusted unless it is consistent with the scheme of the Act in question. It has also been held that a contract envisaged between the parties under Section 11(1)(d) of the Bihar/Jharkhand Building (Lease, Rent and Eviction) Control Act, can be only with regard to the time of payment of rent and no other type of contract much less the type alleged in the case in hand is postulated and the tenant cannot absolve himself from the liability of eviction, even if there was a contract between the parties for adjustment of a particular payment made by the tenant to the landlord towards future rental. 14. In the aforesaid case, which was being dealt by the Hon’ble Patna High Court the medicine supplied to the plaintiff by the defendant was supposedly adjusted towards future rental. I find that the facts of the case, in hand, are similar to that of the case of Maksudan Prasad Kesarwant alias Maksudan Prasad (supra). 15. In view of the aforesaid fact and the law laid down by the Hon’ble Patna High Court, I find that there is no substantial question of law involved or to be decided in this case. Further, from the judgment of the trial court, I find that while deciding issue no. (VIII), the trial court has proved that the plaintiff is entitled to recover a sum of Rs. 800/- per month towards arrears of rent due from the month of August, 2010. It is the case of the plaintiff that the defendant failed to pay the rent for the months of August and September, 2010. The aforesaid finding of the trial court also clearly suggests that the defendant is in default. 800/- per month towards arrears of rent due from the month of August, 2010. It is the case of the plaintiff that the defendant failed to pay the rent for the months of August and September, 2010. The aforesaid finding of the trial court also clearly suggests that the defendant is in default. Since, it has been held by the First Appellate Court, i.e. the final court of fact, that the defendant is defaulter and liable to be evicted, which a question of fact, I am not inclined to interfere with the same. Thus, this appeal stands dismissed. Appeal dismissed.