Eviction for rent default was upheld despite the tenant's claim of remittance by postal money orders. The court found default for more than two months and no perversity in the appellate judgment. It dismissed the second appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Second Appeal No. 72 of 1993 (R)
[Arising out of Judgement dated 29.07.1993 (decree singed on 11.08.1993) passed by Sri S.K. Murari, VIth Additional Judicial Commissioner, Ranchi in Title Appeal No. 38/49 of 1991]
1(i)Srimati Giribala Debi wife of late Tribhuan Sahu (ii). Om Prakash, son of late Tribhuan Sahu (iii). Radhe Shyam Sahu, son of late Tribhuan Sahu
(iv). Ram Gopal, son of late Tribhuan Sahu (v). Smt. Phulo Devi, wife of Motilal Gupta , (vi). Smt. Usha Devi, wife of Shri Yogendra Prasad, (vii). Smt. Geeta Devi, wife of Vijoy Prasad Gupta (viii). Smt. Sarda Devi, wife of Prem Prasad Gupta
…… Appellants
Versus
…… Respondents
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PRESENT: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Appellants : Mr. Lalit Kumar Lal, Advocate Mr. A.K. Sahani, Advocate For the Respondents: Mr. Manjul Prasad, Sr. Advocate
Mr. Anil Kumar, Sr. Advocate
Mr. Baban Prasad, Advocate Miss. Chandana Kumari, Advocate
Mr. Praveen Verma, Advocate
CA.V. on: 22.01.2020 Pronounced on: 19/02/2020
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Suit No. 5/55 of 1985/87.
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premises in suit but the defendant-appellant evaded to vacate the premises on one pretext or the other. The defendant-appellant is liable to pay arrears of rent since 1971 but in the suit the plaintiff has claimed arrears of rent for three years from January, 1982 to January, 1985 amounting to Rs. 576/-. According to the plaintiff, cause of action for the suit arose on various dates since 1971 and when the defendantappellant defaulted in payment of rent. The plaintiff-respondent prayed for a decree for eviction of the defendant from the shop premises fully described in the schedule and for a decree of Rs. 576/- being the arrears of rent from January, 1982 to January, 1985 besides the cost of the suit.
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aforesaid premises was Rs. 16/- per month prior to the fixation of fair rent. The fair rent of the premises was fixed on 19.08.1972 as Rs. 6.30/retrospectively from 13.06.1971. It has been denied by the defendantappellant that he did not pay or validly remit the rent for the suit premises since 1971. It has been stated that defendant-appellant has paid rent in time. It has been submitted that when the plaintiffrespondent evaded to receive the rent the defendant-appellant tendered rent to the plaintiff-respondent every month and on his refusal the defendant-appellant remitted the same by postal money order as required under the law. In para 14 of the written statement it has been submitted that defendant-appellant is entitled to adjust the excess of the rent which was remitted in the circumstances stated above, which the defendant-appellant adjusted for the period commencing subsequent to 13.06.1971, the date from which the rent has been made effective. According to the case of the defendant-appellant, there was an agreement between the plaintiff on the one hand and the defendant on the other though the mode of payment of rent would not be every month but would be at the convenience of the plaintiff, who was to collect the same some times for 1 ½ years and some times for 11 months. The defendant-appellant was liable to make payment of rent for the suit premises on demands by the plaintiff-respondent. The defendantappellant has denied that he has made himself liable to be evicted from the suit premises on the ground of default in the payment of rent. The defendant-appellant has denied the claim of the plaintiff that he requires the suit premises bonafidely for his own use and occupation. It has been submitted that the plaintiff-respondent has got several shop premises lying vacant and if he actually was in need of settling his sons
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in the business he could have used the vacant shop premises for the same. The plaintiff-respondent and his sons carry on business not only in Ranchi town but also outside and they have to employ several persons to look after those business. In para 13 of the written statement, it has been submitted by the defendant-appellant that the plaintiffrespondent initiated a proceeding u/s 133 of the Cr.P.C and prayed that the suit premises might be demolished but such design of the plaintiffrespondent was frustrated and the order was passed against him. The present suit has been filed by the plaintiff-respondent against the defendant-appellant in order to vacate him from the suit premises. It has been further submitted that the plaintiff-respondent has been asserting since 1971 that the suit premises is in a very dangerous and damaged condition and may collapse on any day on the one hand and on the other in the present suit the plaintiff-respondent has taken the plea that he wants the suit premises to set up his own business therein. According to the defendant-appellant, the present suit of the plaintiff-respondent is liable to be dismissed with cost.
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suit for the realization of rent for the period from January, 1982 to January, 1985 for the suit premises at the rate of Rs. 6.30 per month was also decreed by the said judgment.
“(i). Whether in view of the issue having been framed that whether the defendant/appellant had defaulted in payment of rent since 1971 and no issue having been raised regarding the invalidity of remittance through postal Money Orders for any particular period for want of a specific averment to that effect in the plaint, the learned lower appellate court has gravely erred in making an enquiry in the Money Order Coupons (Ext.H Series) and postal Money Order receipts (Ext.J) series, in order to adjudge the defendant/respondent/ appellant as a defaulter for more than two months.
(ii). Whether the learned lower appellate court having itself recorded the finding that the rent receipts Ext. A series disclosed realization of monthly rents for several months together without any protest whatsoever the learned lower appellate court has gravely erred in not holding that by continuous course of conduct and dealing in the matter of realization of rent gave rise to any inevitable implied contact as held in 1977 S.C. and 1989 S.C. 920.
(iii). Whether the learned lower appellate court has gravely erred in holding that the examination of postal peon was necessary to prove the endorsement of refusal in Ext. D series on the M.O. Coupons Ext. H. Series.
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(iv). Whether the finding of the learned lower appellate court that the defendant/respondent/appellant was a defaulter for more than two months is vitiated due to non-consideration of the continuous Money Order Coupons (Ext. H) series containing notes of refusal Ext. D Series along with the postal Money Order receipts Ext. –J series for the entire period commencing right from the month of January, 1982 to December, 1985 for which a complete chart had been submitted before the learned appellate court.”
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framed regarding the invalidity of rent through postal Money Order for any particular period for want of specific averment. He further submitted that in view of that matter the only scope of enquiry in the suit was to “ whether the defendant-appellant successfully proved by cogent evidence that he either paid or validly remitted of rent by postal Money Order since 1971 or not” and in absence of any averment in the plaint and any issue regarding the invalidity of remittance of rent through postal Money Order for any particular period there was no scope for the appellate court below to make any enquiry into valid remittance of rent for a particular period i.e between January, 1982 to January, 1985 in order to adjudge the defendant-appellant as a defaulter for more than two months and in that view of the matter the learned court below erred in making enquiry into Money Order (Ext.H) Series and the postal Money Order receipt (Ext. J Series) and holding that the defendant is defaulter in making payment of rent for the period covering from January, 1982 to January, 1985. He further submitted that although the appellate court has wide power u/s 107 C.P.C but it cannot go outside the pleading and decide the suit by making out a third case and in that view of the matter, as the appellate court below has decreed the suit in present case by making out a third case regarding default between a particular period which were not pleaded, the judgment and decree passed by the learned court below are bad in law and not sustainable.
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He further submitted that as per the provision contained in Section (11) (1) (d) of Bihar Building (Lease, Rent and Eviction) Control, Act, 1982, a tenant shall be evicted on ground of default if he failed either to pay or to validly remit or deposit the rent of the stipulated period in time. To buttress his argument, learned counsel for the defendant-appellant relied on judgment in the case of “ Daluram Agarwala Vs. Shivdayal Bharatiya” reported in 1989 PLJR 227 , in which the Hon’ble Court has held as under:
“13. In this case, the final court of fact in paragraph 11 of the judgement accepted the evidence of D.W.10 (defendant no. 1) who had stated that he remitted the rent by postal money order as the appellant refused to accept the rent when tendered. Applying the law as laid down in Raj Kumar’s case to this case, the sending of rent by money order was not under the general law but under section 13(1).
In view of the fact that the rent for the period 10.08.1974 to 9.9.1974 was refused when tendered, the remittance by money order on 17.9.1974 must be held to be under and in terms of section 13(1). It was, therefore, immaterial whether the postal peon tendered the rent within 9.10.1974 or thereafter. The finding recorded by the court below that respondent no. 1 has defaulted in paying the rent of one month only cannot be interfered with.”
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ought to have considered only the Money Order Coupon (Ext. H Series) and Money Order receipt (Ext. J Series) to determine as to whether the remittance of rent was validly made within time or not and not the endorsement of refusal made by the postman (Ext. D Series) to determine as to whether it was validly tendered or not ? He further submitted that the learned court below erred in holding that the Money Order Coupon (Ext. H Series) and Postal receipt (Ext. J Series) proved by the defendant in order to establish valid remittance for the entire period from January, 1982 to December, 1985 cannot be accepted to be genuine as some of Money Order Coupon do not bear the seal of the post office and the Postal receipts do not clearly indicate the date of issue of the said receipts. The learned court below ought to have taken into consideration and held that as the defendant was neither crossexamined nor any suggestion was made to him in this regard, he cannot be allowed to suffer for the wrong committed by the post office in putting the seal on Money Order Coupon and in putting the date in clear and readable handwriting on postal receipt and as such the said documents deserve to be accepted in order to prove valid remittance of rent for the period from January, 1982 to December, 1985. He further submitted that the learned appellate court below has held the defendant-appellant as a defaulter only for the period between January, 1982 to January, 1985 and in order to establish valid remittance of rent in every month between the said period, the defendant has proved all the Money Order Coupon (Ext. H series) and postal receipt (Ext. J series) covering the said period, the defendant-appellant’s case regarding lump-sum payment of the rent for several months by the defendant-appellant and acceptance of the same by the plaintiff-
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respondent are not related to the aforesaid period and, therefore, the defendant-appellant does not press this appeal regarding involvement of substantial question of law point no. 2 in this appeal. He further submitted that endorsement of refusal on Money Order Coupon Ext. D/128 to D/219 have been proved by postman, Deonish Tigga, who has been examined as D.W.-4 and the said witness, D.W.4 has also proved that the endorsement on Money Order Coupon covering the period from January, 1982 to January, 1985 are in handwriting of postman, Sibu Mundu and Amrit Dugdung. The learned appellate court has held the defendant-appellant is a defaulter in making payment of rent for the period covering from January, 1982 to January, 1985 on one of the ground that the said postman, Sibu Munda and Amrit Dungdung who went to plaintiff-respondent and tendered Money Order to him Ext. D have not been examined by the defendant-appellant. He further submitted that the learned court below failed to appreciate that Money Order Coupon, Postal receipt and the endorsement of refusal relating to one particular month is part of same transaction and if the Money Order Coupon and Postal receipt of the said month is proved, the endorsement of refusal of same month cannot be rejected on the ground that the postman, who tendered the Money Order and made the endorsement of refusal, has not been examined. He further submitted that as one of the postman-D.W.4 has proved the writing of the other two postman, who are working in the same post office, his evidence is relevant under section 47 of the Evidence Act, the learned appellate court below ought to have held that the defendant-appellant successfully proved the endorsement of refusal on Money Order for the period from January, 1982 to December, 1985. He submitted that law point no. 3 is required
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to be answered in favour of defendant-appellant. Learned counsel for the defendant-appellant further submitted that the learned court below has not considered the continuous Money Order Coupon (Ext. H series), Postal receipt (Ex. J series) and endorsement of refusal (Ext. D series) for entire period commencing right from January 1982 to December, 1985 in their right perspective for which a complete chart has been submitted before the learned appellate court below.
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Eviction) Control, Act, 1982 is a self contend Code. The rent Act sets up a complete machinery for the landlord and tenant. Section 11 of the Bihar Building (Lease, Rent and Eviction) Control, Act, 1982 provides that:
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claim of the plaintiff-respondent was that the tenant-appellant has defaulted in payment of rent since 1971. The suit was filed on 29.01.1985. He further submitted that provision of section 11 (1)(d) is mandatory in nature. The statute mandates that rent should be paid within the time fixed by the contract and in absence thereof by the last date of the month next following. He further submitted that the obligation of the part of the tenant to pay rent in the manner laid down under the Act being the statutory one, he must comply therewith strictly. The statute, therefore, in other words, prescribes the period within which the rent must be rendered to the land lord by a tenant. He further submitted that when the Statute lays down the period during which the rent is required to be paid or deposited, the same is required to be complied with. Further, if a thing is required to be done by a private person within a specified time, the same would ordinarily be mandatory but when the public functionary is required to perform a public function within a time framed, the same will be held to be directory unless the consequence thereof are specified.
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to the person entitled to receive it. The sub-section 1 of Section 19 provides:-
“ When a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent, and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord.”
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“4. The provisions of the said Act would clearly show that unlike Rent Control Statutes of other States, the expression ‘wilful default’ or ‘habitual default’ has not been used therein. The words are ‘is in arrears.’ In the event, rent for two months is not paid a cause of action arises. The statute mandates that the rent should be paid within the time fixed by the contract and in absence thereof by the last date of month next following. The obligation on the part of the tenant to pay rent in the manner laid down under the Act, being a statutory one, he must comply therewith strictly. The statute, therefore, in other words, prescribes the period within which the rent must be rendered to the landlord by a tenant. When the statute lays down the period during which the rent is required to be paid or deposited, the same is required to be complied with.
7. Yet there is another aspect of the matter which cannot be lost sight of. It is a well settled principle that if a thing is required to be by a private person within a specified time, the same would ordinarily be mandatory but when a public function is required to perform a public function within a time frame, the same will be held to be directory unless the consequences therefor are specified. In Sutherland Statutory Construction, 3rd Edition. Vol. 3 at P. 107, it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be
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given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow non-compliance with the provision. At page 111 it is stated as follows:
“ As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factory tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive.”
10. This decision in our opinion does not lay down the correct law and must be overruled.”
With Regard to Law Point framed.
22. It transpired that at the appellate stage, the plaintiff-respondent has abandoned the ground of bonafide personal necessity and the title appeal was decided on the ground of default of payment of rent. The learned appellate court below has considered Exhibit A series which show that the rent for the suit premises was paid for the period covering from February, 1967 to August, 1967 for seven months. Exhibit A/2 shows that rent for suit premises was paid by the defendant-appellant to plaintiff-respondent for the period September 1964 to October, 1965 i.e more than a year. The appellate court came
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into finding that this activity clearly shows that there is no express contract between the parties regarding the mode of payment of rent. The contract referred to section 11 (i) (d) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, is an express contract between the parties and cannot be referred to employee contract which can be inferred from any code of contract between parties. In absence of any such formal part, later part of Section 11 (i) (d) of the Act is attracted and amount of rent must be paid by the last day of month next following for which the rent is payable. It has been admitted by the defendant-appellant that there was no express contract between the plaintiff-respondent and defendant-appellant to make payment of rent in lump sum for several months. Thus, only important aspect in this second appeal as to whether defendantappellant is defaulter in making payment of the rent to the plaintiffrespondent for the period covering from January, 1982 to January, 1985 or not? The plaintiff-respondent has left the claim of a decree of realization of arrears of rent from 1971 to December 1981 as the same was time barred. The plaintiff-respondent has claimed arrears of January, 1982 to January, 1985. The plea of defendant-appellant was that he has sent rent for the said premises for the aforesaid period through money order which was refused by the plaintiffrespondent. Exhibit H. Series money order Coupons, Exhibit-J series are postal receipts and Ext. D series endorsement of refusal of money order coupons. While considering this money order coupons the appellate court has come to the conclusion that in absence of seal of post office on the money orders the same cannot be accepted. With regard to postal receipt-Exhibit-J series, the appellate court
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came to the finding that these postal receipts do not clearly indicate the date of issue of receipts. On perusal of the said series it is not clear as to for what period rent was sent to the plaintiff-respondent by the defendant-appellant by the aforesaid postal receipts. Ext. D series is the endorsement of refusal made by the Post Man. Doonish Tigga has proved some of endorsement on the money order coupons in the handwriting of Siboo Munda while others in the handwriting of Amrit Dungdung. D.W.6 has admitted in course of evidence as contained in page 12 that he has not filed money order receipts for some one. He has admitted that he has no money order receipt for month of February, March, April, May and June, 1984 and corresponding money order coupons Exhibit H/132, 161, 162, 162, 131 do not bear seal of the post office. He has further admitted in his evidence that he has got some postal receipts of remitting money order for the month of March, April, July, August, September, October, November and December 1993 and some money order receipts for aforesaid period have not produced by him. He has admitted that he sent rent by money order for the month of May and June, 1984 in the month of July, 1984. This admission of defendantappellant coupled with state of affairs of the money order coupons and postal receipts show that defendant-appellant has defaulted in making payment of rent for the period covering January, 1982 to January, 1985. The default in making payment of rent was found to wilful act on the part of the defendant-appellant and it has been held that the defendant-appellant defaulted in making payment for more than two months. Accordingly the appellate court below rightly came into finding that the default in making payment of rent by the
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defendant-appellant for more than two months must liable to vacate the suit premises .
23. In view of well-settled provisions of law that if a thing is required to be done by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time frame. The statute mandates that the rent should be paid within the time fixed by the contract and in absence thereof the last date of month next following. This obligation on part of the tenant to pay rent in the manner as prescribed under the Act which is statutory in nature. The tenant needs to comply strictly in that terms. It is clear that the statute prescribed the period within which time rent must be rendered to the landlord. When there is period prescribed by the statute, same is required to be read in strict terms .
Dated, the 19th of February, 2020 High Court of Jharkhand, Ranchi Satyarthi/ N.A.F.R
(Sanjay Kumar Dwivedi, J.)
2 issues framed by the court
Did the tenant establish timely remittance of rent by postal money orders, or was there default for more than two months?
Was the appellate finding of rent default perverse for its treatment of the money order coupons, postal receipts and refusal endorsements?
Colour shows how this judgement treated each authority
1977 S.C.Referred¶45
1989 S.C. 920Referred¶45
Daluram Agarwala Vs. Shivdayal BharatiyaReferred¶55
1989 PLJR 227
Ishwar Dutt Vs. Land Acquisition Collector & AnotherReferred¶58
(2005) 7 SCC 190 · Who else cites this
Balwant Singh & Others Vs. Anand Kumar Sharma and OthersRelied on¶81
AIR 2003 SC 1637 · Who else cites this
1 provisions across 1 enactments
Srimati Giribala Debi
Om Prakash
Radhe Shyam Sahu
Sobha Devi
Romi Kumari
Vinod Kumar Gupta
Sanjay Kumar Dwivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court