Judgment:
R.A. Sharma, J.
1. This is the defendant's second appeal. The plaintiff-respondent filed an Eviction Suit No. 7 of 1990 in the Court of Munsif, Chaibasa, seeking eviction of the defendant from the premises in question on the ground of default in payment of rent and recovery of arrears of rent. The suit was decreed by the learned Munsif by judgment and decree dated 21-2-91 /6-3-91, whereby and whereunder the defendant was directed to vacate the suit premises and to pay arrears of rent to the tune of Rs. 3,240/- with cost. The defendant, thereafter, filed an appeal in the Court of learned District Judge, Chaibasa, which has been dismissed by the learned 4th Additional District Judge, Singhbhum at Chaibasa. Being aggrieved thereby the defendant has filed this second appeal. .
2. At the time of admission of this appeal, this Court formulated the following substantial questions of law:
(A) Whether both the Courts below could have come to a finding that the appellant was a defaulter without considering the evidence of
the Postal Peon (D.W.-2) who has deposed that the money order was tendered to Santosh Kumar Sultania who refused to accept the same?
(B) Whether the Courts below could have decreed the suit on the ground of default when the money order was tendered to S.K, Sultania who has described himself as the plaintiff in the plaint ?
(C) Whether the plaintiff having admitted that he is the 'Karta' of the H.U.F. and having refused to accept the money order, can be allowed to take the stand that money order was sent on a wrong address ?
(D) Whether in view of the decision of the Supreme Court as reported in 1992 (2) PLJR 9 (SC), the Courts below erred in law in holding that remittance of rent was not valid as prior tender was not made?
(E) Whether the Courts below erred in law in holding the appellant defaulter when Exts. A/1 to A/21 (Postal M.D.) are there to show that the rent for the month of April & May, 1987 and for subsequent months were remitted to the plaintiff ?
(F) There being evidence on record to show that the plaintiff used to accept accumulated rents without any objection, whether the Courts below erred in law in holding that the appellant was defaulter?
The question Nos. A, B, C and E relate to the effect of remittance of rent by money order and its refusal by Santosh Kumar Sultania. Question No. D is about the validity of remittance of rent by money order in the absence of tender of the rent personally by the defendant to the plaintiff. Question No. F is concerned about the plea of implied contract by conduct regarding time for payment of rent by the defendant. In ultimate analysis, all the aforementioned questions relate to the default in payment of rent by the defendant in terms of Section 1 l(l)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as the Act).
3. Section 11 of the Act prohibits eviction of a tenant from any building except on one or more of the grounds mentioned therein. The ground No. 4, contained in Clause (d) of Sub-section (1) of the Section 11, being relevant for deciding the controversy in the instant appeal, is reproduced below:
11. Eviction of tenants.-(1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:
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(d) Where the amount of two months rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16;
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According to the above provision a tenant can be evicted from a building where he has failed to pay two months rent within the time fixed by a contract, or in the absence of such a contract, by the last day of the month next following that for which the rent is payable. According to the plaintiff, the defendant has failed to pay more than two months rent in time and is thus a defaulter in terms of Section 11(1)(d) of the Act. This was disputed by the defendant.
4. The dispute regarding default in payment of rent by the defendant in terms of Section 1 l(1)(d) of the Act relates to the period from the month of April, 1987 to the Month of May, 1990. The admitted position is that except for the months of June, July, August, September, October and November, 1987 the defendant remitted the rent for two months at a time by money order in the third month. This is clear from Exts. A to A/ 21, the substance of which is contained in the following CHART:
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Sl. Exhibit of Month for which Date of Etc. Nos.
No. M.O. Coupon. remittance. of postal
rent was remitted receipts,
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1. 2. 3. 4. 5.
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1. Ext. A For the month of 23-6-1987 Ext. 'B'
April and May, 1987
2. Ext.A/1 June, 1987 23-7-1987 Ext. B/1
3. Ext. A/2 July, 1987 21-8-1987 Ext. B/2
4. Ext. A/3 August, 1987 26-9-1987 Ext. B/3
5. Ext. A/4 September, 1987 28-10-1987 Ext. B/4
6. Ext. A/5 October, 1987 17-11-1987 Ext. B/5
7. Ext. A/6 November, 1987 10-12-1987 Ext. B/6
8. Ext. A/7 December, 1987
and January, 1988 3-2-1988 Ext. B/7
9. Ext. A/8 February and
March, 1988 2-4-1988 Ext. B/8
10. Ext. A/9 April and May, 1988 28-6-1988 Ext. B/9
11. Ext. A/10 June and July, 1988 30-8-1988 Ext. B/10
12. Ext. A/11 August and
September, 1988 9-10-1988 Ext. B/11
13. Ext. A/12 October and
November, 1988 17-12-1988 Ext. B/12
14. Ext. A/13 December, 1988 &
January, 1989 20-2-1989 Ext. B/13
15. Ext. A/14 February and March, 1989 17-4-1989 Ext. B/14
16. Ext. A/15 April and May, 1989 12-6-1989 Ext. B/15
17. Ext. A/16 June and July, 1989 4-8-1989 Ext. B/16
18. Ext. A/17 August and 4-10-1989 Ext. B/17
September, 1989
19. Ext. A/18 October and November, 1989 8-12-1989 Ext. B/18
20. Ext. A/19 December, 1989 and
January, 1990 8-2-1990 Ext. B/19
21. Ext.A/20 February and March, 1990 4-4-1990 Ext. B/20
22. Ext. A/21 April and May, 1990 1-6-1990 Ext. B/21
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5. Exts. A and A/7 to A/21 clearly show that the defendant remitted two months rent at a time in the third month. For example, rent for the months of April and May, 1987 was remitted on 23-6-1987 and rent far the months of December, 1987 and January, 1988 was remitted on 3-2-1988. Similarly, for the subsequent months till May, 1990 the rent for two months at a time was remitted by the defendant in the third month. The plaintiff refused to receive the rent remitted by the money order.
6. The mandate of Section 1 l(1)(d) of the Act is that if the tenant is in arrears of two months rent by not having paid the same within the time fixed by a contract or in the absence of any such contract, by the last day of the month next following that for which the rent is payable, he can be evicted from the tenanted premises. In the instant case, there is no such contract fixing a time-limit within which the monthly rental is to be paid by the defendant to the plaintiff. Therefore, the later part of Section 11 (1)(d) requiring the payment of rent by the last day of the month next following that for which the rent is payable is applicable. The defendant was thus required to remit the rent every month by the last day of the month next following. By remitting the rent of two months at a time in the third month, the defendant committed default in payment: of rent of the first of the two months, inasmuch as its rent was remitted after the last date of the next following month. For example, for the months of April and May, 1987 the rent was remitted on 23-6-1987. According to Section 1 l(1)(d) rent for the month of April, 1987 was required to be paid by the end of May, 1987, but instead it was remitted, along with the rent for the month of May, 1987, on 23-6-1987. There was thus default in payment of rent for the month of April 1987 within the statutory period. Similarly, there was a default in payment of rent for the month of December, 1987 in time, which was remitted along with the rent for the month of January, 1988 in February, 1988. The same is the position with regard to the other months also the rent of which was sent together with the rent of another month. In this connection, the trial Court in paragraph No. 19 of its judgment has recorded the following findings:
19...
I find that rent for April & May, 87 was remitted by defendant on 23/6/87 by Postal M.O. vide M.O. Coupon (Ext. A) and M.O. receipt (Ext. B). Similarly, rent for Dec., 87 and Jan. 88 were sent on 3/2/88, Feb. & March, 88 on 2/4/88, April & May, 88 on 28/6/88, June & July, 88 on 30/8/88, Aug. & Sep. 88 on 9/10/88, Oct. & Nov. 88 on 17/12/88, Dec. 88 & Jan. 89 on 20/2/89, Feb. & March, 89 on 17/4/ 89, April & May, 89 on 12/6/89, June & July, 89 on 4/8/89, Aug. & Sept. 89 on 4/10/89, Oct. & Nov. 89 on 8/12/89, Dec. 89 to Jan. 90 on 8/2/90, Feb. & March, 90 on 4/4/90 and April & May, 90 was remitted by Postal M.O. on 1/6/90 vide Ext. A/7 to A/21 & Ext. B/7 to B/21, respectively. Accordingly, the remittance of rent for the months of April, 87, De., 87, Feb. 88, April, 88, June, 88, July 88, Oct. 88, Dec., 88, Feb. 89, April, 89, June, 89, Aug. 89, Oct. 89, Dec., 89, Feb. 90 and April, 90 are not in accordance with law and the defendant was defaulted in payment of rent for the aforesaid period and on this ground he is liable to be evicted from the suit premises.
7. The lower appellate Court also in this regard has held as under:
.:.That even from exhibits it must be held that the defendant tenant having remitted two months rent simultaneously on a number of occasion, he became a defaulter with the meaning of Section 1 l(1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act. In view of this decision the learned Lawyer submitted that in view of Exts. A, A/8 to A/21, two months rent were being sent in the third month so in every remittance the tenant is defaulter in payment of rent for the first month which was to be paid in subsequent month and not in third month. It has been submitted that the appellant is not defaulter as regards Exts. A/1 to A/7 as the rent were remitted in the following months. The learned lawyer for the respondent relied also upon a decision reported in 1989 PLJR page 587, Hon'ble Mr. Justice S.B. Sinha has held, Bihar Buildings (L.R. & E) Control Act, 1977 Section 12 (1)(d)-rent not paid for any two months which may not be consecutive, renders a tenant defaulter....
In view of the aforesaid discussions and relying upon various decisions of the Hon'ble Courts aforesaid and also in view of the arguments on behalf of the appellant as well as the respondent, I find and hold that the appellant-defendant is defaulter in payment of rent under the law and is liable for eviction and the learned Court below has rightly decided this issue in favour of the respondent plaintiff.
8. This Court in Narain Sahu and Ors. v. Atma Ram Bajoria 1990 (1) BLJ 688, relevant extract of which is reproduced below, has held that in order to declare a person defaulter under Section 11 (1) (d) of the Act, it is not necessary that the default should be in respect of the consecutive months:
24. However, in this case, assuming that there had been such tender of rent by hand to hand was made by the tenant to the plaintiff No. 1, it is evident from the judgment of the learned Court of appeal below that even from Ext. A/24 to A/48, it must be held that the defendant-tenant having remitted two months rent simultaneously on a number of occasions, he became a defaulter with the meaning of Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control, Act. .
27. However, it is now a settled law that in order to make person defaulter, it is not necessary that he should be a defaulter in respect of the consecutive months.
Reference, in this connection may be made to Syed Abdul Wahab v. Md. Sakman @ Lokman 1989 BLJ 587, which was rendered after taking into the consideration the Full Bench decision of this Court in Raj Kumar Prasad v. Uchit Narain Singh : AIR1980Pat242 ; Tip Top v. Indramani 1982 BLJ 584 : 1982 BBCJ 433 and in Sadanand Das v. Md. Hussain and Anr. 1986 PLJR (SC) Page 46 ; 1986 BLJ 691 (SC).
28. From a bare perusal of the said chart as mentioned in the judgment passed in Title Appeal No. 174/76 giving rise to Second Appeal No. 58 of 1985 (R), it is evident that the defendant remitted the rent for July and August, 1971 in September, 1971, whereas he remitted the rent for the months of September and October, 1971 on 3-11-1971. He, therefore, clearly became a defaulter for the months of July and September. In absence of any pleading or any proof that he tendered the monthly rent in respect of those months on the last date of August, 1971 and October, 1971.
9. As the defendant failed to pay the rent for more than two months within the stipulated time, he became defaulter in terms of Section 11( l)(d) of the Act. In view of the facts and circumstances of the case and the law applicable, the findings of the Court below on this question recorded against the defendant do not warrant any interference in exercise of the power of this Court under Section 100 of the Code of Civil Procedure.
10. So far as the question Nos. A, B, C and E are concerned, it may be mentioned that the lower appellate Court has approved the findings recorded by the trial Court to the effect that Santosh Kumar Sultania is the Karta of M/s. Jutharam Jankidas, HUF. In view of that finding tender of the money order by the postmaster to Santosh Kumar Sultania has to be treated as valid even though the same was refused by him. But that will not change the fate of this appeal. It may be that the money orders by Exts. A to A/21 were remitted at the correct address and were tendered to the right person but that cannot save the defendant from the clutches of Section 11( 1)(d) of the Act because by remitting the rent for two months at a time in the third month, he has committed the default in payment of rent of first of those two months. The position that stands is that the defendant was the defaulter in payment of more than two months rent in terms of Section 1 l(1)(d) of the Act and the Courts below were justified to decree his eviction. The above questions are answered accordingly.
11. As regard the question No. D, it may be mentioned that the apex Court in Smt. Priya Bala Ghosh and Ors. v. Bajranglal Singhania and Anr. 1992 (2) PLJR 9 (SC), has laid down that before remitting the rent by money order tender of the rent to the landlord by the tenant personally and the refusal by the landlord to accept the same is not necessary. Therefore, finding of the Court below holding that the remittance of rent by money order was invalid in the absence of the tender by the tenant personally to the landlord and its refusal by the later cannot be sustained. The remittance of rent by money order has to be accepted as valid. But as mentioned before even if the remittance of rent by money order is valid, the defendant continued to remain as defaulter in terms of Section 11(1)(d) by having remitted the rent for more than one months at a time in the third month. Even though this question has to be answered in favour of the defendant but for the reasons given before no effective relief can be granted to him on that basis.
12. So far as the question No. F is concerned, the case set up by the defendant before the Courts below was about the implied contract by conduct, according to which there was no time fixed for payment of monthly rent and the rent used to be paid whenever the agent of the plaintiff came to collect the same. Such a submission has been rejected by the Courts below. The relevant extract from the judgment of the lower appellate Court on this issue is reproduced below:
Ext. 2 is important on the point of fact of tenancy of the appellant month to month and a tenant under the plaintiff firm is asked to pay the rent on the 1st day of subsequent month to the previous month for which the rent is due. There are certain other conditions also printed to the over leaf of the rent receipt.
The appellant defendant denied the terms and conditions rather an implied contract by conduct. The appellant asserted as regards mode for payment, there was no prescribed time limit and the under standing was that whenever any agent on behalf of the respondent plaintiff would come to collect the rent, it would be paid against the receipts. But, the existence of Ext. 2 has been accepted with its terms and conditions over leaf. Hence, the Court below has rightly held the tenancy of the appellant defendant month to month in view of the written terms which shall prevail upon any irregularities in payment of rents by the tenants in due course.
The aforesaid findings of the Courts below do not warrant any interference by this Court under Section 100 of the Code of Civil Procedure.
13. That apart, this Court in Ramji Prasad and Anr. v. Abhay Kumar Jain 1991 BBCJ 226, the relevant extract of which is reproduced below, has laid down that the theory of implied contract for payment of rent at the convenience of the tenant is inapplicable to the Bihar Buildings (Lease, Rent & Eviction) Control Act:.The theory, therefore, of rent payable at the convenience of the tenants is inapplicable to the Bihar Building Control Act, for maintaining an appeal against eviction.
In this connection, reference may also be made to the apex Court's decision in Sadanand Dass v. Md. Hussain and Anr. 1986 PLJR 46 (SC). The last question is also decided against the defendant.
14. This appeal lacks merit and it is, accordingly, dismissed. No cost.