Jaikisore Gattani and anr. Vs. Shrimati Godawari Devi - Court Judgment

Excerpt:
- - 1985 to april, 1986. the plaint was amended subsequently and the case of the plaintiff was that though the defendants were required, to run a shop but they had close it and locked the same and as such, they are converted the shop in a godown, which is clearly a breach in the term of tenancy. 5. the learned counsel appearing for the appellants has raised a very interesting point by submitting that whereas in view of the english version under section 11(l)(d) of the act, a tenant is liable to be evicted on default of two months rent lawfully payable by him and due from him is in arrear by having been not paid within time fixed by contract or in the absence of such contract, by the last date of the month next following that for which the rent payable or by not having been validly remitted or deposited in accordance with section 16, but in the hindi version of the aforesaid act in place of two months' rent, teen mahine ke kiraye ki rakam' has been mentioned and as such, the appellants cannot be said to be defaulters. 12. it is now well settled that in second appeal the high court cannot interfere with the concurrent findings of fact in respect of default in payment of rent. s.k. chattopadhyaya, j. 1. heard mr. debi prasad, learned counsel for the appellant and mr. n.k. prasad, learned counsel for the respondent. with their consent, this second appeal is being disposed of at the stage of hearing itself under order 41, rule 11 of the code of civil procedure. 2. this second appeal is directed against the judgment and decree dated 16-12-1993, whereby the learned judicial commissioner, ranchi has confirmed the judgment and decree passed by the trial court. 3. the plaintiff-respondent filed (eviction) title suit no. 34/86 against the appellants-defendants for evicting them from a shop on the ground of default in payment of rent and also of breach of term of tenancy. according to the plaintiff, the tenants were required to pay rs. 135/- per month but they have defaulted in payment of the same from oct. 1985 to april, 1986. the plaint was amended subsequently and the case of the plaintiff was that though the defendants were required, to run a shop but they had close it and locked the same and as such, they are converted the shop in a godown, which is clearly a breach in the term of tenancy. in written statement, the defendants have denied the default in payment of rent and breach of terms of tenancy. according to them the plaintiff used to receive the rent in cash and rent receipt was granted after few days. further case is that the rent for the month of october and november, 1985 was paid but the plaintiff told that she would send the receipt later on. as the plaintiff did not send the receipt, the defendants file a case under section 26 of the bihar buildings (lease, rent and eviction) control act, 1982 (hereinafter referred to as 'the act1) before the house controller. in that case, the rent controller directed the plaintiff to issue rent receipt for the month of nov. 1985. the defendants' stand was that the rent for the month of december, 1985 and onward was being remitted by money-orders but the plaintiff refused to accept the same. denying the allegation of breach of tenancy, the defendants stated that there was no such term that they would run a shop only. 4. the trial court, after scrutinising the evidence led on behalf of the parties, came to the conclusion that the defendant-appellants defaulted in payment of rent from oct. 1985 to april, 1986. however, the trial court decided the issue regarding the breach of term of tenancy against the plaintiff-respondent and in the appeal preferred by the defendants, the learned lower appellate court has confirmed the findings of the learned trial court regarding the default. 5. the learned counsel appearing for the appellants has raised a very interesting point by submitting that whereas in view of the english version under section 11(l)(d) of the act, a tenant is liable to be evicted on default of two months rent lawfully payable by him and due from him is in arrear by having been not paid within time fixed by contract or in the absence of such contract, by the last date of the month next following that for which the rent payable or by not having been validly remitted or deposited in accordance with section 16, but in the hindi version of the aforesaid act in place of two months' rent, 'teen mahine ke kiraye ki rakam' has been mentioned and as such, the appellants cannot be said to be defaulters. according to mr. prasad, if the hindi version has to prevail as held by different decisions of this court, the defendants-appellants herein are not a defaulter at all and the judgment and decree passed by two courts below are liable to be set aside. 6. mr, n.k. prasad, on the other hand, has submitted that the aforesaid error in the hindi version of the act was subsequently detected and by virtue of, the amendment act namely, bihar act 4 of 1994, the same has been corrected. 7. section 4 of the bihar buildings (lease, rent and eviction) control (amendment) act, 1993 (bihar act 4 of 1994) reads as follows;-- '4. amendment of section 11 of bihar act 4, 1983.- in section 11 of the said act.- (i) in clause (d) of sub-section (1) for the words 'three months' the words 'twomonths'; shall be substituted.' (ii) in clause (f) of sub-section (1) for the word 'request' the word 'order' shall be substituted.' 8. according to mr. n.k. prasad, after the said error has been corrected by way of amendment, the appellants cannot take advantage of the said error in the hindi version of section ll(l)(d) of the act inasmuch as the amendment has been made during the pendency of the second appeal. 9. it appears that similar point was urged by mr. debi prasad before this court in second appeal no. 66/91 and a learned single judge of this court by an order dated 4-8-1994, after detailed discussions, had held that 'even if the aforesaid amendment would have retrospective effect and such amendment may not be deemed to have always been substituted in the act, still that being merely a typographical/printing error in the hindi version of act two months contiguous default has always been a statutory provision for holding a tenant to be a defaulter since the very inception of the bihar buildings (lease, rent and eviction) control act, 1947 onwards.' 10. in view of the aforesaid decision, in my opinion, the argument of mr. debi prasad cannot be sustained. no other substantial question of law has been urgd by mr. prasad in support of the appeal. 11. moreover, in the instant case, both the courts below have come to a concurrent finding that the defendants-appellants defaulted in payment of rent for the month of oct. 1985 to april, 1986. in such view of the matter, in my opinion, the defendants-appellants had defaulted in payment of rent not merely for two months but more than three months. 12. it is now well settled that in second appeal the high court cannot interfere with the concurrent findings of fact in respect of default in payment of rent. in this connection, i may refer to a decision of this court in the case of mst. saida khatoon v. bibi sakina khatoon reported in 1988 pljr 1008. 13. in the result, i find no merit in this second appeal and as such, it is dismissed.

Judgment:

S.K. Chattopadhyaya, J.

1. Heard Mr. Debi Prasad, learned counsel for the appellant and Mr. N.K. Prasad, learned counsel for the respondent. With their consent, this second appeal is being disposed of at the stage of hearing itself under Order 41, Rule 11 of the Code of Civil Procedure.

2. This second appeal is directed against the judgment and decree dated 16-12-1993, whereby the learned Judicial Commissioner, Ranchi has confirmed the judgment and decree passed by the trial court.

3. The plaintiff-respondent filed (Eviction) Title Suit No. 34/86 against the appellants-defendants for evicting them from a shop on the ground of default in payment of rent and also of breach of term of tenancy. According to the plaintiff, the tenants were required to pay Rs. 135/- per month but they have defaulted in payment of the same from Oct. 1985 to April, 1986. The plaint was amended subsequently and the case of the plaintiff was that though the defendants were required, to run a shop but they had close it and locked the same and as such, they are converted the shop in a godown, which is clearly a breach in the term of tenancy. In written statement, the defendants have denied the default in payment of rent and breach of terms of tenancy. According to them the plaintiff used to receive the rent in cash and rent receipt was granted after few days. Further case is that the rent for the month of October and November, 1985 was paid but the plaintiff told that she would send the receipt later on. As the plaintiff did not send the receipt, the defendants file a case under Section 26 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act1) before the House Controller. In that case, the Rent Controller directed the plaintiff to issue rent receipt for the month of Nov. 1985. The defendants' stand was that the rent for the month of December, 1985 and onward was being remitted by money-orders but the plaintiff refused to accept the same. Denying the allegation of breach of tenancy, the defendants stated that there was no such term that they would run a shop only.

4. The trial court, after scrutinising the evidence led on behalf of the parties, came to the conclusion that the defendant-appellants defaulted in payment of rent from Oct. 1985 to April, 1986. However, the trial court decided the issue regarding the breach of term of tenancy against the plaintiff-respondent and in the appeal preferred by the defendants, the learned lower appellate court has confirmed the findings of the learned trial Court regarding the default.

5. The learned counsel appearing for the appellants has raised a very interesting point by submitting that whereas in view of the English version under Section 11(l)(d) of the Act, a tenant is liable to be evicted on default of two months rent lawfully payable by him and due from him is in arrear by having been not paid within time fixed by contract or in the absence of such contract, by the last date of the month next following that for which the rent payable or by not having been validly remitted or deposited in accordance with Section 16, but in the Hindi version of the aforesaid Act in place of two months' rent, 'teen mahine ke kiraye ki rakam' has been mentioned and as such, the appellants cannot be said to be defaulters. According to Mr. Prasad, if the Hindi version has to prevail as held by different decisions of this Court, the defendants-appellants herein are not a defaulter at all and the judgment and decree passed by two courts below are liable to be set aside.

6. Mr, N.K. Prasad, on the other hand, has submitted that the aforesaid error in the Hindi version of the Act was subsequently detected and by virtue of, the Amendment Act namely, Bihar Act 4 of 1994, the same has been corrected.

7. Section 4 of the Bihar Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1993 (Bihar Act 4 of 1994) reads as follows;--

'4. Amendment of Section 11 of Bihar Act 4, 1983.-

In Section 11 of the said Act.-

(i) In clause (d) of Sub-section (1) for the words 'three months' the words 'two

months'; shall be substituted.'

(ii) In Clause (f) of Sub-section (1) for the word 'request' the word 'order' shall be substituted.'

8. According to Mr. N.K. Prasad, after the said error has been corrected by way of amendment, the appellants cannot take advantage of the said error in the Hindi version of Section ll(l)(d) of the Act inasmuch as the amendment has been made during the pendency of the second appeal.

9. It appears that similar point was urged by Mr. Debi Prasad before this Court in second appeal No. 66/91 and a learned single Judge of this Court by an order dated 4-8-1994, after detailed discussions, had held that 'even if the aforesaid amendment would have retrospective effect and such amendment may not be deemed to have always been substituted in the Act, still that being merely a typographical/printing error in the Hindi version of Act two months contiguous default has always been a statutory provision for holding a tenant to be a defaulter since the very inception of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 onwards.'

10. In view of the aforesaid decision, in my opinion, the argument of Mr. Debi Prasad cannot be sustained. No other substantial question of law has been urgd by Mr. Prasad in support of the appeal.

11. Moreover, in the instant case, both the courts below have come to a concurrent finding that the defendants-appellants defaulted in payment of rent for the month of Oct. 1985 to April, 1986. In such view of the matter, in my opinion, the defendants-appellants had defaulted in payment of rent not merely for two months but more than three months.

12. It is now well settled that in Second Appeal the High Court cannot interfere with the concurrent findings of fact in respect of default in payment of rent. In this connection, I may refer to a decision of this Court in the case of Mst. Saida Khatoon v. Bibi Sakina Khatoon reported in 1988 PLJR 1008.

13. In the result, I find no merit in this second appeal and as such, it is dismissed.