Case: Radha Kishan Sao Vs. Gopal Modi and Others

This appeal by special leave is directed against the judgment of the Patna High Court in a second appeal arising out of suit for eviction of therooms being shop Nos. 17 and 18 of Modi Building in Commissioners Compound, Ranchi, were let out by the plaintiff (respondents herein) on a monthly rental to the. defendant (appellant herein). We will describe them as the plaintiff and the defendant. It is common ground that fair rent of Rs. 50/- per month (including water tax) was determined for the two, shops by an order of the Rent Controller under section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (briefly the Act) on May 30, 1953. Later on, certain furniture, such as five almirahs and six racks, were also let out by the plaintiff to the defendant on a monthly rental of Rs. 28/-. A suit was instituted by the plaintiff on April 18, 1966, praying for eviction of the defendant on the ground of non-payment of rent of the said two shops and furniture for three months from July to SeptemberMunsiff, Ranehi, dismissed the suit holding that failure to remit rent for furniture along with rent for the two shops did not amount to default under section 11(1)(d) of the Act. The Munsiff also held that there was no valid service of notice under section 106 of the Transfer of Propertyappeal the Second Additional Subordinate Judge, Ranchi, reversed the judgment of the trial court and decreed the suit for eviction upholding the ground of default. The Subordinate Judge held that the plaintiff was entitled to realise rent at the rate of Rs. 78/- per month which included the rent for furniture and hence remittance by the defendant of Rs. 50/- per month was not a valid discharge of his rental liability and he was a faulter within the meaning of section 11(1)(d) if the Act. The Subordinate Judge also held that there was no proper service of the notice of eviction. We are not concerned in this appeal with the question of service of notice.Since the Subordinate Judge was the final court of facts, it will be appropriate to note the following findings material for our"I, therefore , decide that the plain- tiff was entitled to realise Rs. 50/- as monthly rent.(2) In view of the evidence of the parties and Ext. 2 I hold that plaintiff h ad supplied the furniture detailed in Schedule B of the plaint and rent fixed for the same had been Rs. 28/- per month.(3) The subsequent supply of furniture and that of sufficient value must be construed as a quite independent contract unconnected with the original tenancy ....defendants second appeal to the High Court failed. The High Court agreed with the first appellate court that the rent for furniture was also lawfully payable under section 11(1)(d) and hence the ground of default of payment of Rs. 78/- per month from July to September 1965 was avail- able to theHigh Court also gave an additional reason for sustaining the eviction decree. There was an order by the Subordinate Judge, in the course of the appeal, under sec- tion 11A of the Act directing the defendant to deposit the rent of the premises at the rate of Rs. 50/per month in terms of that Section. It appears there was some controversy before the Subordinate Judge as to whether this order under section 11A was complied with or not by the defendant. The Subordinate Judge, however, repelled the contention of the plaintiff to strike out the defence of the defendant on th e ground of non-compliance with the courts order under section 11A in the followingwas argued on behalf of the appellant (plaintiff) that the defendant had not deposited subsequent rent in spite of direction by the court and so this court had to strike out the defence against ejectment. The defendant had filed the documents to show subsequent deposit in regular way. So this plea of plaintiffsecond attempt, and this time successfully, was made in the High Court by the plaintiff t o. press the ground under section 11A of the Act to strike out the defendants defence against ejectment.

Reasoning:
It is clear from the judgment of the High Court that there was no material, without further enquiry, to reach a conclusion contrary to that of the first appellate court with regard to non-compliance with section 11A of thea matter where the first appellate court came to a positive finding in favour of the defendant with regard to the non-compliance with its order under section 11A, we do not consider that the High Court was right in adopting the course. it did in a rather unsatisfactory manner to reach a contrary conclusion, for the first time, on a vital and clinching fact about handing over the amount of rent to the Nazir in absence of the latters oral testimony. There is no denial even in the written information furnished by the Nazir that the rent was handed over to him on Marc h 14, 1974. The matter would have been different if the High Court, in the interest of justice, had called for additional evidence under order 41, rule 28, Civil Procedure Code, so that the parties would have proper and adequate opportunity to establish their respective versions including the procedure of the particular court regarding acceptance of deposit in a given situation. It is true that the High Court could itself permit documentary evidence to be produced before it under order 41, rule 27, but, as we have seen, this course has resulted in great prejudice to the defend- ant. Even the counsel were unable to inform us about the procedure of depositing the money in compliance with the order under section 11A in the court of the Subordinate Judge even after entertaining of -additional evidence before the High Court.In view of the fact that the first appellate court held the deposit of the amount sufficient under the law being within the statutory period Laid down under section 11A, we are most reluctant to prefer the contrary conclusion of the High Court on the materials produced before it. This is particularly so since the High Court itself appears to have accepted the position that the amount was handed over to the Nazir on March 14, 1974, in the extract from the judgment quoted above. The only objection of the. High Court was that the defendant instead of handing over the amount to. the Nazir should have "himself deposited the amount on March 15, 1974. Since the money was deposited by the Nazir on May 28, 1974, in absence of a proper enquiry into the matter of delay of deposit at the hands of the Nazir and the reasons for it, the High Court was not right, in second appeal, to penalise the defendant by striking out his defence against ejectment. The second ground relied upon by the High Court for decreeing the plaintiffs eviction suit, therefore,ad vantage which is given to the landlord under section 11A for the purpose of realisation of the arrears of rent pendente lite which is in the nature of lawful enforcement of the conditions of tenancy, can be secure d by the landlord at any stage of the litigation, whether in the trial court or in appeals. The penalty of striking out defence for non-compliance of an order under section 11A has to he kept distinct from the grounds of eviction permitted under section 11 of thefirst appellate court found that rent for the premises was Rs. 50/. per month and there was no default of that rent at any time. The first appellate court found that the rent of Rs . 28/- per month for the furniture was a subject matter of "subsequent supply" and "a quite independent contract unconnected with the original tenancy". It, however, found that since the same was not paid by the defendant during the months in question along with the rental of Rs. 50J- per month for the premises, the defendant was a defaulter within the meaning of section 11 (1)(d) of the Act. The High Court has accepted this legal conclusion of the Subordinateare, however, unable to accept the above legal position of the defendants default in this case on the finding of facts set out above. Rent has been always Rs. 50/- per month for the premises after the same was fixed by the Rent Controller under section 5 of the Act as far back as 1953. The parties having been already before the Rent Controller for fixation of fair rent of the premises , the plaintiff could not alter that fixed rent without order of the Rentis the default in the payment of this rent fixed by the Rent Controller which will furnish a ground for eviction under section 11(1)(d) of the Act. Default of the furniture rent agreed by the defendant subsequent to the lease cannot be brought within the mischief of section 11(1)(d) to entitle the landlord to a decree for eviction. On the findings of the first appellate court the furniture rent remains divorced from the rent of the building under the original demise. Even if the furniture be returned, the lease for the building in this case will not bealteration of the lair rent fixed by the Rent Controller either by improvement of the building or by addition of furniture to the building will have receive the imprimatur of the Rent Controller. Section 7, inter alia, provides that if, at. any time after the fair rent of a building has been determined, it appears to the Rent Con- troller that subsequent to such determination some addition or improvement has been made to the building at the land- lords expense, the Controller may redetermine the .fair rent of the building. There is no-legal impediment if the parties, landlord and tenant, approach the Controller and by consent obtain an order from the Controller fixing the revised rent which is admissible under the Act. Any other course is bound to lead to mal-practices and unholy devices deterimental to the interests of the tenants. No enhancement of fair rent fixed by the Rent Controller is legally permissible except in accordance with the provisions of the Act. Default of payment of any rent, in excess of the fair rent fixed, if without recourse to the procedure under the Act, will not entail a ground for eviction under section 11(1)(d) of the Art. The High Court, and earlier the Additional Subordinate Judge, therefore, committed an error of law in accepting the ground of default under section 11 (1) (d) on a wrong appreciation of the legal position on the facts found by the first appellate court. There was, therefore, no basis for granting decree for eviction under section 11(1)(d) of the Act.