Ashwani Kumar Basak Vs. Rabindra Nath Roy - Court Judgment

Excerpt:
bihar buildings (lease, rent and eviction) control act, 1982, sections 15(1) and 11(1)(c) - civil procedure code, 1908, section 11--order for deposit of arrears of rent of period prior to institution of suit as well as current and future rent--not challenged by tenant and allowed it to become final--later on, tenant's defence was struck off for not depositing arrears of rent of period prior to institution of suit--this order was based on decision of high court--tenant, challenging that order on ground that by subsequent decision, high court has declared that part of section i5(1) to be ultra vires by which tenant is required to deposit arrears of rent for period prior to institution of suit --in the instant case, tenant's plea regarding legal position after decision by subsequent bench--not considered--case decided and impugned order affirmed on ground that tenant allowed order directing deposit of rent to become final and thus by virtue of applicability of res judicata, he is debarred to challenge that order and order striking off defence based on non-compliance of that order. [rent control--striking off defence for not depositing rent of period prior to institution of suit--validity.] - - 150/- per month, which was the last rent paid, with effect from october, 1990 to february, 1992, the current as well as furture rents. 6. section 15(1) of the act runs as follows :if, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the court after giving opportunity to the parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before and after the institution of the suit if any and on failure of the tenant, to deposit the arrears of rent within fifteen days of date of order or the rent at such rate for any month by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he bad not defended the claim to ejectment and further the court sh hemant kumar bhattacharjee (1963) 2 scj 680, the supreme court held that 'a wrong decision by a court having jurisdiction in much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides (at page 684 of the report)'.it is also a well-settled jaw that res judicata applies at different stages of the same procedings. dulal kumar chandra air 1988 sc 608. in that decision, when the trial court did not accept the plea of belated compliance of a similar order by four or five days on account of an alleged strike of bank, it was held that there is a duty cast on the court to strike out defence in view of the failure of the defendant to deposit arrears of rent. binod kumar roy and s.k. chattopadhyaya, jj.1. in this civil revision petition, which was directed to be put up for admission before a division bench by a learned single judge and that is how it is before us, the petitioner prays to set aside an order dated 30-4-1993, passed by shri s.n. singh, munsif, ranchi, in eviction suit no. 75 of 1990 striking off his defence for non-compliance of the order dated 23-1-1992 passed under section 15(1) of the bihar buildings (lease, rent and eviction) control act, 1982 (hereinafter referred to as 'the act').2. the relevant facts are in a narrow compass. the suit aforementioned was filed by the opposite party in december, 1990 for eviction of the petitioner on the ground of personal necessity. the opposite party filed an application on 9-1-1992 under section 15(1) of the act for issuing a direction to the petitioner to deposit rent at the rate of rs. 150/- per month, which was the last rent paid, with effect from october, 1990 to february, 1992, the current as well as furture rents. the petitioner contested the prayer of the opposite party alleging non-applicability of section 15 of the act as the suit has been instituted on the ground of personal necessity as contemplated under section 14 of the act. the opposite party replied alleging, inter alia, that his prayer is squarely covered by dwarika prasad kapri v. chandramania devi 1987 pljr 864. the learned munsif by his order dated 23-1-1992 allowed the prayer of the opposite party and directed the petitioner to deposit rents from october, 1990 to january, 1992, within fifteen days and the rents for future months by the 15th day of the months succeeding as envisaged under section 15(1) of the act. the petitioner, however, deposited rents from december, 1990, without making any attempt to get the. order dated 23-1-1992 modified and/or set aside by filing any revision. the opposite party on 13-4-1993 filed an application for striking off the defence of the petitioner on account of non-compliance of the order dated 23-1-1992 alleging, inter alia, that rents for october and november, 1990, were not deposited by him. the petitioner filed a rejoinder asserting, inter alia, that he has been regularly depositing the rents within the stipulated period and as such his defence cannot be struck off, that there is no provision under the law directing him to deposit the rents prior to the institution of the suit ; and that order in that regard is without jurisdiction and hence the petition be rejected3. the parties were heard, and as already stated by the impugned order, the defence of the petitioner was struck off for non-compliance of the order dated 23-1-1992 holding that the rents for the months of october and november, 1990, were not deposited.4. the learned counsel for the petitioner submits that in shri ratan lai nai v. state of bihar and ors. : air1990pat107 , that part of section 15(l) of the act under which a tenant could be asked to deposit rent prior to the institution of the suit filed on the ground of personal necessity, was held to be ultra vires and, accordingly, the learned munsif, has committed a jurisdictional error in striking off the petitioner.5. mr, sahay, learned counsel appearing on behalf of the opposite party, on the other hand, contends that in view of the earlier division bench judgment in dwarika prasad kapri, (supra), the court below had correctly passed the earlier order, that in sri ratan lai nai (supra) the later division bench relied upon by the learned counsel for the petitioner the earlier decision in dwarika prasad kapri's case (supra), was not considered and, accordingly, the matter has been referred to a larger bench by yet another subsequent division bench ; that the decision of the earlier division bench could not be ignored by the learned munsif, that it wan not the case of the petitioner in the court below which is evident from his rejoinder (as contained in annexure-5 of the revision petition), that he has not deposited the rents in question on account of any bona fide and, thus, no case has been made out for interference with the impugned order.6. section 15(1) of the act runs as follows :if, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the court after giving opportunity to the parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before and after the institution of the suit if any and on failure of the tenant, to deposit the arrears of rent within fifteen days of date of order or the rent at such rate for any month by the fifteenth day of the next following month, the court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he bad not defended the claim to ejectment and further the court shall not allow the tenant to cross-examine the landlord's witnesses.7. in dwarika prasad kapri's case (supra), a division bench of this court (presided over by n.p. singh, j., as he then was, now of the hon'ble supreme court interpreting section 15(1) of the act held that rent even prior to the institution of the suit filed on the ground of personal necessity can be asked to be deposited by a plaintiff-landlord as the legislature has not made any distinction between a suit instituted on the ground of personal necessity and a suit instituted on other grounds mentioned under the act. before the division bench, the question of vires of the revision was not taken8. in sri raton lai nai case (supra), the later division bench held that part of section 15(1) of the act is ultra vires article 14 of the constitution insofar as it relates to deposit of rent prior to the institution of a suit on the ground of personal necessity but without considering dwarika prasad kapri case (supra). we are, however, not called upon to resolve the conflict between these dicisions in this civil revision application in view of the patent legal position in mohan lal v. binoy krishna : [1953]4scr377 ; and state of west bengal v. hemant kumar : 1966crilj805 , that even orders which are erroneous also operate as res judicata. in the state of west bengal v. hemant kumar bhattacharjee (1963) 2 scj 680, the supreme court held that 'a wrong decision by a court having jurisdiction in much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides (at page 684 of the report)'. it is also a well-settled jaw that res judicata applies at different stages of the same procedings. to crown all, the following statement of law by the apex court in shiv chandra kapoor v. amur base : air1990sc325 , is relevant, when an order was challenged as void or ultra vires (quoting with approval from wade's administrative law) '... unless the necessary proceedings are taken at law to establish the cause of invalidity and get it quashed or otherwise upset, it will remain as effective for its ostensible purpose, as the most impeccable of orders'. it was thus for the petitioner to challenge the earlier order dated 23-1-1992 and he cannot be permitted to challenge collaterally the correctness of that order as without jurisdiction after complying with another part of the same order.9. section 15 of the act corresponds to section 13 of the bihar buildings (lease, rent and eviction) control act, 1977, with some modifications, which fell for consideration by the hon'ble supreme court in mrs. manju choudhary v. dulal kumar chandra air 1988 sc 608. in that decision, when the trial court did not accept the plea of belated compliance of a similar order by four or five days on account of an alleged strike of bank, it was held that there is a duty cast on the court to strike out defence in view of the failure of the defendant to deposit arrears of rent. in manmohan kaur v. surya kant bhagwanti (1988) 4 scc 690 : air 1991 sc 291, the similar provision was again considered and held as follows :—if, on the other hand, the delay is not explained or explanation is one which is not acceptable' to the court, then the court must strike out the defence and there is no discretion.10. the plea of bona fide of non-deposit of rents in question has been taken up for the first time in the revision petition which was lacking in the rejoinder of the petitioner filed before the court below.11. we, thus, find substance in the contentions of mr. sahay and accept them and overrule those of the learned counsel of the petitioner, and hold that the learned munsif has not committed any jurisdictional error while passing the impugned order.12.this civil revision application is, accordingly, dismissed, but in the peculiar facts and circumstances, we make no order as to cost.

Judgment:

Binod Kumar Roy and S.K. Chattopadhyaya, JJ.

1. In this civil revision petition, which was directed to be put up for admission before a Division Bench by a learned Single Judge and that is how it is before us, the petitioner prays to set aside an order dated 30-4-1993, passed by Shri S.N. Singh, Munsif, Ranchi, in Eviction Suit No. 75 of 1990 striking off his defence for non-compliance of the order dated 23-1-1992 passed under Section 15(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as 'the Act').

2. The relevant facts are in a narrow compass. The suit aforementioned was filed by the opposite party in December, 1990 for eviction of the petitioner on the ground of personal necessity. The opposite party filed an application on 9-1-1992 under Section 15(1) of the Act for issuing a direction to the petitioner to deposit rent at the rate of Rs. 150/- per month, which was the last rent paid, with effect from October, 1990 to February, 1992, the current as well as furture rents. The petitioner contested the prayer of the opposite party alleging non-applicability of Section 15 of the Act as the suit has been instituted on the ground of personal necessity as contemplated under Section 14 of the Act. The opposite party replied alleging, inter alia, that his prayer is squarely covered by Dwarika Prasad Kapri v. Chandramania Devi 1987 PLJR 864. The learned Munsif by his order dated 23-1-1992 allowed the prayer of the opposite party and directed the petitioner to deposit rents from October, 1990 to January, 1992, within fifteen days and the rents for future months by the 15th day of the months succeeding as envisaged under Section 15(1) of the Act. The petitioner, however, deposited rents from December, 1990, without making any attempt to get the. order dated 23-1-1992 modified and/or set aside by filing any revision. The opposite party on 13-4-1993 filed an application for striking off the defence of the petitioner on account of non-compliance of the order dated 23-1-1992 alleging, inter alia, that rents for October and November, 1990, were not deposited by him. The petitioner filed a rejoinder asserting, inter alia, that he has been regularly depositing the rents within the stipulated period and as such his defence cannot be struck off, that there is no provision under the law directing him to deposit the rents prior to the institution of the suit ; and that order in that regard is without jurisdiction and hence the petition be rejected

3. The parties were heard, and as already stated by the impugned order, the defence of the petitioner was struck off for non-compliance of the order dated 23-1-1992 holding that the rents for the months of October and November, 1990, were not deposited.

4. The learned Counsel for the petitioner submits that in Shri Ratan Lai Nai v. State of Bihar and Ors. : AIR1990Pat107 , that part of Section 15(l) of the Act under which a tenant could be asked to deposit rent prior to the institution of the suit filed on the ground of personal necessity, was held to be ultra vires and, accordingly, the learned Munsif, has committed a jurisdictional error in striking off the petitioner.

5. Mr, Sahay, learned Counsel appearing on behalf of the opposite party, on the other hand, contends that in view of the earlier Division Bench judgment in Dwarika Prasad Kapri, (supra), the Court below had correctly passed the earlier order, that in Sri Ratan Lai Nai (supra) the later Division Bench relied upon by the learned Counsel for the petitioner the earlier decision in Dwarika Prasad Kapri's case (supra), was not considered and, accordingly, the matter has been referred to a larger Bench by yet another subsequent Division Bench ; that the decision of the earlier Division Bench could not be ignored by the learned Munsif, that it wan not the case of the petitioner in the Court below which is evident from his rejoinder (as contained in Annexure-5 of the revision petition), that he has not deposited the rents in question on account of any bona fide and, thus, no case has been made out for interference with the impugned order.

6. Section 15(1) of the Act runs as follows :

If, in a suit for recovery of possession of any building the tenant contests the suit as regards claim for ejectment, landlord may move an application at any stage of the suit for order on the tenant to deposit rent month by month at a rate at which it was last paid and also subject to the law of limitation, the arrears of rent, if any and the Court after giving opportunity to the parties to be heard may make an order for deposit of rent month by month at such rate as may be determined and the arrears of rent, both before and after the institution of the suit if any and on failure of the tenant, to deposit the arrears of rent within fifteen days of date of order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck off and the tenant to be placed in the same position as if he bad not defended the claim to ejectment and further the Court shall not allow the tenant to cross-examine the landlord's witnesses.

7. In Dwarika Prasad Kapri's case (supra), a Division Bench of this Court (presided over by N.P. Singh, J., as he then was, now of the Hon'ble Supreme Court interpreting Section 15(1) of the Act held that rent even prior to the institution of the suit filed on the ground of personal necessity can be asked to be deposited by a plaintiff-landlord as the Legislature has not made any distinction between a suit instituted on the ground of personal necessity and a suit instituted on other grounds mentioned under the Act. Before the Division Bench, the question of vires of the revision was not taken

8. In Sri Raton Lai Nai case (supra), the later Division Bench held that part of Section 15(1) of the Act is ultra vires Article 14 of the Constitution insofar as it relates to deposit of rent prior to the institution of a suit on the ground of personal necessity but without considering Dwarika Prasad Kapri case (supra). We are, however, not called upon to resolve the conflict between these dicisions in this civil revision application in view of the patent legal position in Mohan Lal v. Binoy Krishna : [1953]4SCR377 ; and State of West Bengal v. Hemant Kumar : 1966CriLJ805 , that even orders which are erroneous also operate as res judicata. In the State of West Bengal v. Hemant Kumar Bhattacharjee (1963) 2 SCJ 680, the Supreme Court held that 'A wrong decision by a court having jurisdiction in much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides (at page 684 of the report)'. It is also a well-settled Jaw that res Judicata applies at different stages of the same procedings. To crown all, the following statement of law by the Apex Court in Shiv Chandra Kapoor v. Amur Base : AIR1990SC325 , is relevant, when an order was challenged as void or ultra vires (quoting with approval from Wade's Administrative Law) '... unless the necessary proceedings are taken at law to establish the cause of invalidity and get it quashed or otherwise upset, it will remain as effective for its ostensible purpose, as the most impeccable of orders'. It was thus for the petitioner to challenge the earlier order dated 23-1-1992 and he cannot be permitted to challenge collaterally the correctness of that order as without jurisdiction after complying with another part of the same order.

9. Section 15 of the Act corresponds to Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977, with some modifications, which fell for consideration by the Hon'ble Supreme Court in Mrs. Manju Choudhary v. Dulal Kumar Chandra AIR 1988 SC 608. In that decision, when the trial Court did not accept the plea of belated compliance of a similar order by four or five days on account of an alleged strike of Bank, it was held that there is a duty cast on the court to strike out defence in view of the failure of the defendant to deposit arrears of rent. In Manmohan Kaur v. Surya Kant Bhagwanti (1988) 4 SCC 690 : AIR 1991 SC 291, the similar provision was again considered and held as follows :—

If, on the other hand, the delay is not explained or explanation is one which is not acceptable' to the Court, then the Court must strike out the defence and there is no discretion.

10. The plea of bona fide of non-deposit of rents in question has been taken up for the first time in the revision petition which was lacking in the rejoinder of the petitioner filed before the Court below.

11. We, thus, find substance in the contentions of Mr. Sahay and accept them and overrule those of the learned Counsel of the petitioner, and hold that the learned Munsif has not committed any Jurisdictional error while passing the impugned order.

12.This civil revision application is, accordingly, dismissed, but in the peculiar facts and circumstances, we make no order as to cost.