Dr Ranjeet Prasad Vs Mahadev Kar

2025:JHHC:17983

IN THE HIGH COURT OF JHARKHAND AT RANCHI

S.A. No. 432 of 2018

Dr. Ranjeet Prasad, aged about 59 years, son of late Lakheshwar Prasad, resident of Mohalla Mahulsai, Town & P.O. Chaibasa, P.S. Mufassil, Chaibasa, District- Singhbhum West.

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Versus

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Mahadev Kar, son of late Anil Baran Kar, resident of MohallaChhota Nimdih, Town Chaibasa, P.O. & P.S. Chaibasa, DistrictSinghbhum West.

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… … Plaintiff/Respondent/Respondent

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Mr. Rahul Kumar Gupta, Advocate : Mr. Radha Krishan Gupta, Advocate For the Respondent : Mr. Shankar Lal Agarwal, Advocate : Ms. Ayushi, Advocate ---

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19 /02.07.2025

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Heard the learned counsels appearing on behalf of the parties. 2. This second appeal has been filed against the judgment and decree dated 13.07.2018 (decree signed on 26.07.2018) passed by the learned Principal District Judge, West Singhbhum at Chaibasa in Civil Appeal No. 20 of 2017 whereby the learned 1^st appellate court dismissed the appeal and confirmed the judgment and decree dated 31.08.2017 (decree signed on 12.09.2017) passed by learned Additional Civil Judge (Junior Division), Porahat, Singhbhum West at Chaibasa in Eviction Suit No. 04 of 2014. The learned trial court had decreed the suit in favour of the plaintiff.

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3. This second appeal has been admitted for final hearing vide order dated 06^th November 2019 on the following substantial questions of law:

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(i) “Whether the learned courts below while holding that the rent has been paid and subsequently came to the finding that the appellant as defaulter in payment of rent and coming to that finding for misconstrued effect of Ext.2 series or not? (ii) Whether the learned appellate court below was justified in holding that the lease deed is not registered document and

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in spite of that considering terms and conditions of that lease deed was justified or not?”

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Arguments of the Appellant

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4. With respect to the 1^st substantial question of law, the learned counsel for the appellant has submitted that the son had entered into agreement of tenancy and the municipality receipt in connection with the property was issued in the name of his brother, but he was not the owner of the property. He has further submitted that the owner of the property is the mother, but the suit was filed only by the plaintiff. He submits that an objection was taken by the defendant with regard to non-joinder of necessary parties, and while deciding this issue, the learned trial court has rejected the plea by holding that the plaintiff was the son of Mangla Bala Kar and Shankar Kar was the brother of the plaintiff. The learned trial court further recorded that the defendant was inducted as tenant and the suit was brought by one of the cosharers as ostensible owner and the defendant used to pay rent to the plaintiff since beginning of the tenancy.

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5. The learned counsel submits that the plea of non-joinder of necessary party was rejected by the learned trial court by holding that the plaintiff was competent to bring the suit being a co-sharer of the property. He submits that this finding has attained finality and the plaintiff being a co-sharer of the property, extending rent to other cosharers i.e., the mother and the brother of the plaintiff, was sufficient compliance of payment of rent. The learned counsel submits that in such circumstances, the finding of the learned 1^st appellate court holding the appellant as a defaulter on the ground that money order was sent to the mother and not to the plaintiff is perverse. He submits that consequently, the 1^st substantial question of law is fit to be answered in favour of the appellant and against the respondent.

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6. Learned counsel for the appellant has further submitted that the learned 1^st appellate court has also recorded a finding in paragraph 17 itself that certain advances were paid on different dates to mother and brother of the plaintiff, even that has not been taken into account, but the finding of the learned 1^st appellate court is primarily resting in

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connection with default in payment of rent for the month of January, 2014 to April, 2014 i.e., 4 months for which an amount was sent to Mangla Bala Kar – the mother of the plaintiff through Exhibit-C to C/3.

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7. With respect to the 2^nd substantial question of law , the learned counsel for the appellant has submitted that admittedly the lease-deed was not a registered document. Under such circumstances, the terms and conditions of the lease-deed cannot be looked into and the finding having been recorded that the plaintiff was just the co-owner of the suit property, the nature of relationship between the plaintiff, his brother and mother on the one hand and that of the defendant on the other hand, was that of landlord and tenant and therefore, extension of rent to the co-owners of the property was sufficient compliance. He has submitted that the exclusive right of the plaintiff to collect rent cannot be acknowledged in view of the fact that the agreement was unregistered. He has also submitted that the property was admittedly in the name of the mother and the municipal tax receipts were issued in the name of brother of the plaintiff.

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8. Learned counsel for the appellant has also submitted that as per the agreement, the rent was to be paid by 07^th day of every month and there is a finding that rent was not paid in terms of the agreement i.e., on the 7^th day of the following month and that such payment was in breach of the contract. However, it has come that the plaintiff used to issue rent receipt which were also exhibited as Exhibit- 2 to 2/25. Learned counsel has submitted that since the terms and conditions of the agreement could not be looked into, therefore, such finding is also not in accordance with law and he submits that the 2^nd substantial question of law is also fit to be answered in favour of the appellant and against the respondent.

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9. Learned counsel for the appellant has further submitted that the terms of the contract that the rent was to be paid within 7 days of the following month could not be considered for want of registration.

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10. Learned counsel for the appellant has relied upon the judgment passed by the Hon’ble Supreme Court reported in (2008) 8 SCC 564

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(K.B. Saha and Sons Private Limited Vs. Development Consultant

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Limited) and has submitted that if the document (exhibit-1) was inadmissible in evidence for want of registration, therefore, its terms could not have been taken into evidence.

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11. Learned counsel for the appellant has also relied upon the judgment passed by the Hon’ble Supreme Court reported in (1989) 1 SCC 542 (Rashik Lal and others v. Shah Gokuldas) (paragraph 8) and has submitted that if the landlord receives belated payment without any protest, then under such circumstances the acceptance of rent is sufficient compliance of tenancy agreement. He has submitted that receipts against payment of the rent have been duly issued and exhibited before the learned trial court and no protest has been registered. Meaning thereby, the rent was duly accepted and therefore, it could not have been a ground for holding the appellant defaulter by observing that the payment was not made within the stipulated time as per the agreement.

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12. Learned counsel for the appellant has further relied upon the judgment passed by the Hon’ble Supreme Court reported in (2001) 8 SCC 758 (Chitranjan Burman v. Om Prakash Bajoria) (paragraphs 21 and 23).

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Arguments of the Respondent

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13. Learned counsel for the respondent, on the other hand, has opposed the prayer and has submitted that there was a landlord -tenant relationship between the parties and the appellant was a defaulter. He submits that the rent having not been tendered to the plaintiff, the finding of the learned court that the appellant was a defaulter is in accordance with law. The learned counsel further submitted that merely because the payment was made to the mother, the same cannot be said to be on account of payment of rent. He has relied upon the judgment passed by the Hon’ble Supreme Court reported in (1987) 2 SCC 153 (Budhwanti and Another Vs. Gulab Chand Prasad) and has referred to paragraph 10 of the said judgment which is quoted as under:

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10. In the view we propose taking of the matter we do not think it necessary to go into the question whether the appellants had committed default in payment of rent and secondly even if they had committed default, they are entitled to adjust the excess rent paid by them over a span of 30 years without reference to the rule of “in pari delicto”. The reason for our refraining to go into these questions is because we find the decree for eviction passed against the appellants can be sustained on the second ground viz. bona fide requirement of the shop for the business requirements of the members of the joint family. Even so we think it necessary to point out an error contained in the argument of Mr Javali. The learned Counsel submitted that the decision of the High Court on the question of “in pari delicto” may not be good law in view of a recent decision of this Court in Mohd. Salimuddin v. Misri Lal. It is true that the case related to a dispute regarding default in payment of rent between a landlord and a tenant and this Court held that it will be a judicial sin to treat the landlord and tenant on a par and apply the doctrine of pari delicto because the parties were placed in the position of “oppressor” and “oppressed”. The learned Counsel has failed to notice that the facts in that case were entirely different. It was a case where a tenant was obliged to advance a loan of Rs 2000 to the landlord in order to secure the lease of a premises. The agreement between the parties specifically provided that the loan amount was to be adjusted against the rent which accrued. In spite of it the landlord sought the tenant’s eviction on the ground of arrears of rent and set up a plea of “in pari delicto” against the tenant. It was in such circumstances this Court held that the doctrine of pari delicto cannot be applied since the tenant was perforce compelled to advance a loan to secure the lease even though such advancement of loan was against the terms of the Rent Act. The learned judges have taken care to set out that the doctrine will not be attracted when there is no element of compulsion or exploitation and both parties have by consensus contravened the provisions of law for their mutual advantage. They, however, found that the tenant concerned in that case was a victim of exploitation and hence he was not “in pari delicto”. The relevant portion of the judgment reads as follows: (SCC p. 381, para 4)

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“The doctrine is attracted only when none of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain. Such being the position the said doctrine embodying the rule that a party to a transaction prohibited by law cannot enforce his claim in a court of law is not attracted in a situation like the present.”

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Findings of this Court

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14. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that a suit for eviction being Eviction Suit No. 4 of 2014 was filed by the sole plaintiff Mahadev Kar seeking eviction of the sole defendant on the ground of personal necessity and also default in payment of rent.

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15. So far as the plea of personal necessity is concerned, considering the nature of substantial questions of law involved, the same need not be gone into. It is sufficient to observe that the plea of personal necessity was declined by the learned courts.

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16. The specific case of the plaintiff was that tenancy commenced on 01.04.1999 by virtue of tenancy agreement which was month to month beginning on 01^st day of the month and continuing till the last day of the month @ Rs. 1200/- per month payable by 7^th day of next following month as monthly rent subject to enhancement of rent @ 10% every 3 years. As per the plaintiff, the tenant had paid a sum of Rs. 60,000/- to the landlord for construction and it was agreed to be adjusted @ Rs. 400/- per month for monthly rent which stood fully adjusted by the month of September, 2011 and the rent payable was Rs. 1757/- per month with effect from April, 2011.

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17. It was the case of the plaintiff that the defendant had committed act of default in payment of monthly rent as per the contract for the month of May, July, November and December, 2011, January, July, September, November and December, 2012 as well as for January to July and December of 2013 within 7^th day of the next following month as per the agreement. It was also the case that the defendant had not paid rent for the month of January to March, 2014 till the date of filing of the suit and the rent for the said period of January to March, 2014 had fallen in arrears.

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18. The specific case of the plaintiff was that since rent for more than 2 months was not paid as per the contract, the defendant was a

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defaulter and was liable to be evicted under section 11(1)(d) of the Jharkhand Building (lease, rent and eviction) Control Act .

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19. The defendant filed their written statement raising objection with respect to limitation etc. and also objection stating that the plaintiff was not the owner of the property and the suit was barred by mis-joinder and non-joinder of necessary party, inasmuch as, Mangla Bala Kar and Shankar Kar who are the mother and brother of the plaintiff, are owners of the property and the suit was not maintainable at the instance of the plaintiff.

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20. It was also urged that the unregistered deed was inadmissible in evidence and the defendant denied everything except whatever was admitted in the written statement. It was the specific statement in the written statement of the defendant that the plaintiff was not the owner of the suit property except he was the authorized agent of the owner of the property in question for collection of monthly rent on behalf of Mangla Bala Kar. Prior to commencement of tenancy, Mangla Bala Kar, who is the mother of the plaintiff and Shankar Kar, who is brother of the plaintiff, settled the terms and conditions of monthly tenancy. It was also asserted that the rent was paid to Mangla Bala Kar and the plaintiff used to grant rent receipt acknowledging the payment of rent. The allegation of default in payment of rent was denied. Further, it was also asserted that the defendant had paid certain amount to the brother of the plaintiff and plaintiff had also taken certain amount from the defendant.

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21. The learned trial court framed the following issues for consideration:

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I. Whether the suit is maintainable in its present form and for the reliefs claimed?

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II. Has plaintiff got cause of action for the suit?

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III. Is the suit barred under law of limitation, estoppels, acquisence and waiver?

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IV. Is the suit bad for non-joinder of necessary parties?

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V. Whether there is relationship of landlord and tenant between both parties?

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VI. Is the defendant a defaulter within the meaning of section 11(1)(d) of Jharkhand Building (Rent, Lease & Eviction) control Act?

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VII. Is the plaintiff require the property for the bona fide personal necessity of his son?

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VIII. Will the partial eviction of suit property, satisfy the need of plaintiff's personal necessity?

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IX. Did the plaintiff had taken advance of Rs. 66,000/- and has the entire amount been adjusted towards the rent?

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X. Did the brother of the plaintiff had taken amount time to time from the defendant as the rent in advance?

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XI. Is the plaintiff entitled to Schedule B amount from defendant?

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XII. Are the plaintiffs entitled for any other reliefs and reliefs?

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22. One of the issues as framed by the learned trial court was, as to whether the suit was bad for non-joinder of necessary parties? Said issue was decided by the learned trial court against the defendant by holding that there was no impediment in law that the plaintiff being the co-sharer of the property, could not bring a suit for violation of the terms of tenancy and non-impleadment of the entire family member could not in any way suffer the merit of the suit. The learned court ultimately gave a finding that there was relationship of landlord and tenant between the parties. The learned trial court further held that the appellant was a defaulter as he had failed to make payment in terms of the agreement within the stipulated period. The learned trial court heavily relied upon the unregistered deed of agreement.

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23. The finding with regard to non-joinder of necessary party and also the finding that the plaintiff was the co-owner of the property and consequently the suit was maintainable, attained finality.

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24. So far as the learned 1^st appellate court is concerned, the only point for determination was with regard to default in payment of rent. It was considered vide paragraph 14 onwards of the 1^st appellate court’s judgment. The learned 1^st appellate court recorded a finding in paragraph 15 of its judgment that the appellant was a defaulter as the

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appellant had not paid rent for certain period mentioned therein till December, 2013 within 7 day of next following month and the same was in breach of the contract.

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25. The learned 1^st appellate court further recorded the argument of the plaintiff in paragraph 16, who tried to justify the finding of the learned trial court by referring to the stipulated date regarding payment of rent as mentioned in the agreement. The learned 1^st appellate court took note of the fact that the rent agreement was not registered and therefore, the tenancy has to be taken as month-tomonth tenancy. The learned court further recorded that it was clear that certain advance money was given by the tenant to Shankar Kar and Mangla Bala Kar who were not authorized to receive any money or rent of the tenanted premises and therefore, the defendant was a defaulter.

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26. Further, in paragraph 17 of its judgment, the learned 1^st appellate court recorded that the plaintiff cannot be held responsible for money taken in advance by his brother and so far as default in terms of non-payment of rent is concerned, the finding is only in connection with the period from January, 2014 to April, 2014 i.e., 4 months by holding that instead of giving the same to the plaintiff, the same was sent through money orders to Mangla Bala Kar (the mother of the plaintiff) and the money orders were marked as exhibit-C to C/3. The findings of the learned 1^st appellate court in paragraph 15 to

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17 are quoted as under:

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“ 15 . Form the aforesaid finding, it is crystal clear that the defendant/appellant used to pay rent @ 1756.92 P. i.e. Rs.1757/per month, which rate of rent became effective from the month of April 2011 upon enhancement in rent to the plaintiff/respondent and defendant/appellant has committed act of default and having defaulted in paying monthly rent for the suit property by not paying the same as per the contract for the months of May, July, November and December 2011. January, July, September, November and December 2012 and January to July and December, 2013 within seventh day of the next following month for which the monthly rent was payable or in other words the monthly rent for the suit property in respect of the aforesaid month having been paid by the defendant after seventh day of the next following month in breach of the contract between the

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parties and after receiving the rent the plaintiff used to issue rent receipt marked as Ext-2 to 2/25 respectively.

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Though, the plaintiff has come-up with a case at para-9 of the plaint that the monthly rent was payable by seventh day of the next following month, but he failed to pay the rent on seventh as stipulated. Hence, the appellant/ defendant is defaulter for the month to month tenancy.

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16 . Learned lawyer for the respondent argued that the findings of the learned lower Court is quite justified because the rent was not paid on or before seventh day of next following month within the stipulated date as per the agreement, but slightly differ with the view expressed by the learned lawyer for the respondent.

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Since, the tenancy is admitted and the rent agreement is not a registered one, then it is settled principle of law that such agreement can only be treated as month to month tenancy and in the month to month tenancy rent is payable by the parties under the month.

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Thus, if the tenant pay the rent any-time within the month, same has to be exhibited as compliance of the terms of the agreement. For strict compliance of the terms of agreement, the agreement has to be a registered one. However, it appears that defendant has come-up with a case that he has used to pay the rent every month to the plaintiff. Plaintiff used to take advance of Rs.60,000/- from the appellant/ defendant and same has adjusted in the rent @ Rs.400/- per month in the month of September 2011. Appellant has also given advance to the brother of plaintiff Shankar Kar, but the same has neither been adjusted nor returned to the appellant and receipt of the same marked exhibits in this case.

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On perusal of these exhibits, it is clear that the advance money given by the appellant/defendant to the Shankar Kar and Mangla Bala Kar (brother and mother of the plaintiff) who are not to authorize to receive any money or rent of the tenanted premises. The appellant / defendant has played tactic not to pay rent of the tenanted premises, which is his responsibility.

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17 . It further appears from the oral evidence of the plaintiff, as well as defendant, who are examined as PW-1 and DW-3, it is clear that the defendant has paid certain amount of advance on different dates and periods, some-time to the brother of plaintiff or to mother of the plaintiff without consent of the present plaintiff. Thus, the present plaintiff can't be held responsible for the money taken in advance by his brother or mother.

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Though, such advance is not paid through proved documentary evidence. Thus, it is clear that the defendant/tenant deliberately didn’t pay the rent in the month of January 2014 to April 2014 i.e. four months and instead of the same is sent through money order to Mangla Bala Kar, who is mother of the plaintiff, marked as Ext-C to C/3 respectively, which is not compliance of Section 11(1)(d) of Jharkhand Building(Rent, Lease and Eviction) Control Act and has became a defaulter.

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Hence, this question is also decided in favour of plaintiff/respondent and against the defendant/appellant.”

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27. While considering the 1^st substantial question of law , this Court is of the considered view that the defendant could not have been held to be a defaulter in view of the fact that the plaintiff used to issue rent receipts which were marked exhibit-2 to 2/25 and though the payment was made after 7^th day of the following month on some occasions, it was never the case of the plaintiff that such amount was received under protest. In view of the judgment passed by the Hon’ble Supreme Court reported in (1989) 1 SCC 542 (Supra), paragraph 8, the payment having been accepted by issuance of rent receipt without any protest, the defendant could not have been held to be a defaulter. Paragraph 8 of the aforesaid judgment is quoted as under:

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“ 8. We do not see any reason for holding that unless the rent was paid and accepted at a fixed period or interval, no such implied agreement can be inferred. In the S.P. Deshmukh case the rent had been paid at the varying interval of 3 or 4 months. The crucial test appears to be the conduct of the landlord in receiving the rent offered belatedly. If he receives the same under a protest and warns the tenant to be regular in payment in the future, he cannot be assumed to have agreed to a modified agreement in this regard. But if he, without any objection and without letting the tenant know his thought process, continues to receive rent at intervals of several months, he cannot be allowed to spring a surprise on the tenant by suddenly starting a proceeding for eviction. Having lulled the tenant in the belief that things were all right, the landlord was under a duty to serve him with a notice demanding regular payment, if he wished to insist upon it. In the case before us there was no objection whatsoever, raised on behalf of the landlord against the delayed payments. We, therefore, hold that the High Court was not right in reversing the concurrent

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finding of the two courts below. Accordingly, the impugned judgment is set aside that of Resident Deputy Collector is restored and the appeal is allowed with costs throughout. Before closing, however, we would like to observe that in view of the attitude of the parties disclosed in the present case the appellant should hereafter pay the rent regularly in the succeeding month failing which he may be liable to be adjudged a habitual defaulter.”

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28. This Court also finds that the payment of rent to Mangla Bala Kar through money orders for the default period of January, 2014 to April, 2014 i.e., for 4 months was certainly sufficient compliance of payment of rent, inasmuch as, the learned trial court while holding that the suit was maintainable at the instance of the plaintiff, has held that the plaintiff was only one of the co-owners of the property and the other co-owners were Mangla Bala Kar and the brother of the plaintiff and accordingly, such finding of default is also not in accordance with law. Consequently, the finding of the learned courts while holding that the appellant was a defaulter, is not in accordance with law which is hereby set-aside. The 1^st substantial question of law is accordingly answered in favour of the appellant and against the respondent.

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29. So far as the 2^nd substantial question of law is concerned, this Court finds that one of the terms and conditions of tenancy agreement was that the rent was to be paid by 7^th day of the next following month which has been relied upon by the learned 1^st appellate court to hold that the appellant was a defaulter, the same also could not have been considered as the tenancy agreement was an unregistered document. The agreement which stipulated the term of condition of payment by 7^th of every month was unregistered and the defendant was month to month tenant. As per section 11 (1) (d) of the aforesaid act, the rent is to be paid as per agreement and in absence of an agreement, the rent has to be paid by the last day of the month following the month for which rent is payable.

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30. Consequently, the 2^nd substantial question of law is also answered in favour of the appellant and against the respondent. 31. So far as the judgment relied upon by the respondent reported in (1987) 2 SCC 153 (supra) , in particular paragraph 10 of the said

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judgment is concerned, this Court finds that in the said case the Hon’ble Supreme Court has observed that the Court did not think it necessary to go into the question whether the appellants had committed default in payment of rent and the Hon’ble Supreme Court refrained from going into discussions as the decree for eviction passed against the appellants could be sustained on the ground of bonafide requirement by the landlord.

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32. The substantial questions of law herein do not relate to adjustment of the payments already made, but are essentially related to the fact that as to whether the appellant could be termed as a defaulter on account of non-payment of rent by 7^th day of each month and what would be the consequence of the Exhibit-1 being an unregistered document. Exhibit- 1 being an unregistered document and on the face of the finding that the plaintiff was a co-owner, the necessary consequence would be that payment of rent to the mother for the period from January, 2014 to April, 2014 was sufficient discharge for payment of rent.

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33. This Court is of the considered view that while answering the substantial questions of law, the consequences of the answer to the substantial question of law are also required to be considered. 34. Accordingly, this second appeal is hereby allowed and the judgment and decree dated 13.07.2018 (decree signed on 26.07.2018) passed by the learned Principal District Judge, West Singhbhum at Chaibasa in Civil Appeal No. 20 of 2017 as well as the judgment and decree passed by learned Additional Civil Judge (Junior Division), Porahat, Singhbhum West at Chaibasa in Eviction Suit No. 04 of 2014 are hereby set-aside.

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35. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Pankaj

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Dr Ranjeet Prasad v. Mahadev Kar

Case brief

What is this about?

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Dr Ranjeet Prasad v. Mahadev Kar

Case brief

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