Allowed

Shipra Banerjee And Ors. v. Om Prakash Lal Gupta

Jharkhand HC9 Jun 2026SA/293/2017

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Jharkhand allowed the appeal, holding that legal heirs automatically step into the shoes of the landlord. The Court found the lease deed contained a forfeiture clause for eviction on non-payment of rent, allowing eviction under the Rent Control Act despite the fixed term.

What did the court decide?

The suit is decreed holding the defendant liable to be evicted on account of nonpayment of rent.

Shipra Banerjee And Ors. Vs Om Prakash Lal… — Pension and Retirement Benefits | Jharkhand HC (2026)

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2026: JHHC: 16911

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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S. A. No. 293 of 2017

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Shipra Banerjee, widow of late Amiya Kumar Banerjee.

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Rana Banerjee

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Amit Banerjee

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Kunal Banerjee Serial No.2 to 4 are sons of late Amiya Kumar Banerjee, resident of Mohalla Baddom Bazar, P.O. and P.S. and District: Hazaribagh

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… … Plaintiffs/Appellants/Appellant Versus

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Om Prakash Lal Gupta, Son of Durga Prasad Gupta, resident of Mohalla Baddom Bazar, P.O. and P.S. and District: Hazaribagh.

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… … Defendant/Respondent/Respondent

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellants : Mr. Vibhor Mayank, Advocate For the Respondents : Mr. Vishal Kumar Tiwary, Advocate : Mr. Pratyush Shounikya, Advocate : Mr. Shubham Mayank, Advocate ---

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C.A.V. on 02.02.2026 Pronounced on 09.06.2026

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1. This second appeal has been filed against the judgment dated 12.04.2017 (decree signed on 24.04.2017) passed by learned District Judge-III, Hazaribagh in Eviction Title Appeal No. 05 of 2013 affirming the judgment dated 28.02.2013 (decree signed on 12.03.2013) passed by the learned Civil Judge (Junior Division), Hazaribagh in Eviction Suit No. 10 of 2012.

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2. The eviction suit was dismissed ex-parte and the judgment of eviction suit was affirmed by the learned 1^st appellate court. Consequently, the plaintiffs are the appellants before this Court.

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3. The eviction suit was filed under Jharkhand Building (Lease, Rent & Eviction) Control Act ,2001 (hereinafter referred to as the Act of 2001) seeking eviction of the defendant from the suit tenanted premises described in Schedule “A” of the plaint on account of default in payment of rent and also on account of personal necessity.

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4. This 2^nd appeal was admitted by this Court vide order dated 25.02.2020 and thereafter vide order dated 07.10.2025, an additional substantial question of law has also been framed by this Court. Vide order dated 21.01.2026, the substantial question of law, which was framed vide order dated 07.10.2025, has been modified by this Court. Both the substantial questions of law to be answered are as follows: -

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i. Whether the appellate court below failed to consider the pleading and came to a wrong finding in view of Section 11(i)(d) of the Jharkhand Building (Lease, Rent & Eviction) Control Act ,2001 and held that there is a no landlord-tenant relationship between the plaintiff and defendant or not?

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ii. Whether the learned courts have failed to appreciate that the Rent Control Act being a special legislation would prevail over the lease agreement or any other contractual obligations in view of Section 11 of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2001?

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5. Arguments of the appellants on the 1^st substantial question of law are as under: -

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a. The Learned Courts below have come to a finding that the original landlord was Late Amiya Kumar Banerjee and pursuant to his death, the defendants have not recognized the plaintiffs as the owners.

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b. The Lease Deed dated 05.07.2001 specifically states that the term ‘Lessor’ shall include its 'Legal Heirs' etc. It is thus evident that the Lease Deed itself contemplated that after death of the original landlord, his legal heirs will step into his shoes and the defendant is liable to pay rent to the new landlord.

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c. The learned counsel has relied upon the following judgements: -

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i. Mahendra Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogul and Ors., reported in (1997) 5 SCC 329

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ii. Gopi Vs. Ballabh Vyas reported in (2022) 19 SCC 204

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iii. Smt. Kalawati Tripathi & Ors. Vs. Smt. Damayanti Devi & Ors. , reported in 1992 SCC Online Pat 130

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d. It therefore transpires from the aforementioned facts and circumstances as well as the judicial precedents that the transferee/assigns or legal heirs ipso facto steps into the shoes of the landlord upon his death and attornment is not required.

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e. Both the courts below have held that the agreement contemplated a default of four months as a prerequisite for eviction of the tenant, as such, even though the default of two months was proved, the courts below did not pass a decree of eviction on the ground that the requirement of four months of default was not proved.

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6. Arguments of the appellants on the 2^nd substantial question of law are as under: -

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i. The court below have also held that since, it is a fixed term lease of 28 years, the lessee cannot be evicted before the expiry of 28 years.

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ii. The finding arrived at by the learned courts is erroneous because of the following reasons:

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A. Non-Obstante Clause

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a) Section 11 of the statute starts with the word ‘notwithstanding anything’ contained in any contract or law to the contrary,

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b) Therefore, the provisions of the Rent Control Act will have an overriding effect not only over any other law but also over any contract or agreement to the contrary.

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iii. The learned counsel has relied upon following judgements: -

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a. Union of India v. G.M. Kokil, reported in 1984 Supp. SCC 11

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b. Orient Paper and Industries Ltd. & Anr. Vs. State of Orissa & Anr., reported in 1991 Supp (1) SCC 81

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c. Kotak Mahindra Bank Ltd. Vs. Girnar Corrugators Pvt. Ltd., reported in (2023) 3 SCC 210

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B. Tenancy in the State will be governed by Rent Control Act and not the Transfer of Property Act.

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i. It is settled law of the land that a Special Act will always prevail over a General Act.

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ii. The learned counsel has relied upon the following judgements: -

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a. V. Dhanapal Chettiar Vs. Yesodai Ammal, reported in (1979) 4 SCC 214.

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b. Vannattankandy Ibrayi Vs. Kunhabdulla Hajee , reported in (2001) 1 SCC 564 .

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7. Arguments of the respondent on the substantial questions of law are as follows: -

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A. Even if the appellants prove that there was a landlord-tenant relationship between the appellant and the respondent, after the death of the original Lessor, who was the husband/father of the Appellants and they stepped into his shoes, so far as the subsisting lease is concerned, the appellants have not been able to show through their pleadings in the present appeal that the respondent has failed to comply with the terms of the Lease for which they are liable to be evicted from the premise in view of the specific and concurrent finding of court of the original jurisdiction and the appellate jurisdiction that the respondent had an immunity of not being disturbed from the possession and not be declared a defaulter till four months, which was ratified by both the Lessor and Lessee. Whereas, the descendants of the Original Lessor brought the suit for a cause

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of action of non-payment of rent for a period of two months and hence, the suit was dismissed.

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B. Therefore, what is important is the answer to the 2^nd Substantial Question of Law.

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C. The reason for such dispute arises from the discrepancy between the Lease Deed and the Rent Control Act. The ground of the appellants, that Section 11 of the Rent Act starts with a non-obstante clause and hence it will have a binding effect on all other laws and contractual obligations existing on date, may be true for most scenarios but not in this situation and the reason for that is the nature of the Act. The intention of this Act, as can also be seen from the preamble of the act is to “...regulate the letting of building and the rent of such building and to prevent the unreasonable eviction of tenants therefrom in the State of Jharkhand"

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D. This is a clear indication of the fact that the Rent Acts across the country came to the rescue and protection of the tenants who were unreasonably and on flimsy grounds being evicted from their premises and this act came in protection of all tenants to be evicted from their premises except on the grounds as mentioned in Section 11 of the Act. This stance has also been explained in a number of judgements of the Hon'ble Courts across the Country starting from the Full Bench of the Karnataka High Court in Sri Ramakrishna Theatres Ltd. General Investments & Commercial Corporation Lid. [W.P. No. 23759 of 1990 dated 27th March, 1992] reported in I.L.R. 1992 KAR 1296 (1992 SCC OnLine Kar 118), further reiterated and affirmed by the Hon'ble Supreme Court in Laxmidas Bupudas Darbar & Anr. v. Rudravva & Ors. [Civil Appeal No. 2031 of 2000 decided on August 27, 2001] reported in (2001) 7 SCC 409 and further followed by the Division Bench of the Gujarat High Court in Jabal C. Lashkari v. O.L. of Prasad Mills Limited & Ors. [O.J. Appeal

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No. 66 of 2006 decided on October 17, 2008] reported in 2008 SCC OnLine Guj 171 further affirmed by the Hon'ble Supreme Court in (2016) 12 SCC 44.

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E. Now, since the Act has been brought for the protection of unlawful and unreasonable eviction of the tenants, the same cannot be construed to the disadvantage of the tenants by interpreting the same as to devoid the benefits of the lease to the tenant and evict them.

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F. Further, the Rent Control Act has not abrogated the provision of lease as per Section 107 of the Transfer of Property Act, 1882 which empowers the individuals to create a Registered Lease for any specific term and decide for when the payment for the same can be made and there is no restriction for the same and none of the Rent Control Acts have abrogated the said provision. The learned counsel has referred to paragraph 14 and 15 of the judgement passed by the Hon’ble Supreme Court in Laxmidas Bapudas Case (Supra).

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G. The Hon'ble Supreme Court in the case of Modern Hotel, Gudur K. Radhakrishnaiah & Ors. [Civil Appeal No. 4108 of 1982 decided on April 26, 1989] reported in (1989) 2 SCC 686 specifically laid down that in absence of a forfeiture clause in the Lease leading to termination by forfeiture, the Contractual Tenancy will be subsisting under the provision of the Transfer of Property Act and there could not be any eviction from such tenancy. The learned counsel has referred to paragraph 11 of the said judgement.

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H. The Full Bench of the Karnataka High Court in the case of Sri Ramakrishna Theatres (Supra) clarified the said stance and observed the same in support of the present Respondent in hand and clarified in para 22 that nowhere, the Supreme Court stated that the lease of immovable property would be determined even before the efflux of the time limiting the lease period by recourse to the provisions of the Rent Control Act. It

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is only in a case where the mode of determination of a lease in accordance with the T. P. Act is unnecessary and a mere surplusage in the context of the provisions of the Rent Control Act, the ratio of Dhanapal Chettiar's case (AIR 1979 SC 1745) could be applied.

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I. There is also a simple rationale that if the landlord is allowed to evict a tenant during the period of fixed-long term lease, in absence of a forfeiture clause in the lease deed on any of the grounds as mentioned in the Act, then the tenant will suffer irreparably because a tenant, in a long term lease also injects huge amount of investments on assurance of the lease term being assured by way of the lease deed during the tenure of the lease as was also clarified and explained in the Sri Ramakrishna Theatres Case (Supra) wherein it has been held that the object of the rent control act is not to confer such a wide and large right on the landlord, as to enable him to recover possession of the leased premises, at a time when he possessed no such right under general law. Finally, the Full Bench concluded by holding that the landlord shall have the right to evict a tenant during the subsistence of the lease period only in a situation when there is a specific clause in the lease deed for the eviction of the tenant and not otherwise and even in a situation when there exists such a clause, the said clause will and can only be exercised keeping in view the provisions as entailed in the Rent Act for the eviction of a tenant, making it clear that a contractual tenancy cannot be terminated during its subsistence in absence of any expressed clause to that effect that the landlord should have a right to recover possession and that right cannot be held to vest in him during the period of the term lease unless there is something in the lease deed which provides for the determination of the lease; in such a situation, even after the determination of the lease in the manner stated

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in the term lease, the recovery of possession will have to be made only by recourse to Section 21(1) of the rent control act.

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J. That, the above stance of the Full Bench has been followed by the Hon'ble Supreme Court in the case of Laxmidas Bapudas Case (Supra) holding therein that, none of the State Rent Control enactments have either overridden or diluted the mandate of Section 107 of the Transfer of Property Act, which expressly governs leases of immovable property from year to year, for a term exceeding one year, or where an annual rent is reserved. There is nothing in any of the Rent Acts to suggest that a valid contractual tenancy ceases to have legal efficacy merely upon the Act coming into force. It has been consistently held that the tenure of a subsisting fixed-term lease cannot be shortened or diluted except in accordance with a forfeiture clause expressly incorporated in the lease deed. Consequently, eviction proceedings against a tenant holding under a fixed-term contractual lease may be initiated during the currency of such lease only on grounds specifically enumerated in clauses for eviction in the Act, and only where such grounds are also recognized in the lease deed as giving rise to forfeiture never otherwise. The learned counsel has referred to paragraph 17 and 18 of the said judgement.

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K. Further, the Hon'ble Division Bench of the Gujarat High Court in Jabal C Lashkari Case (Supra) (affirmed by the Hon'ble Supreme Court) took note of the observations made by the Full Bench of the Karnataka High Court & the Hon'ble Supreme Court and held the same as was held by the Hon'ble Supreme Court in Laxmidas Bapudas Case (Supra) and observed that a tenant in a fixed term lease can only be evicted on the grounds as enumerated in the clause for eviction in the Rent Control Act, provided the said ground is also available in the lease deed and the rights enumerated in the Lease Deed and the

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Transfer of Property Act cannot be curtailed with the advent of the State Rent Act and the long terms lease is protected. The learned counsel has referred to paragraph 66 and 67 of the said judgement.

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L. All these precedents have also been taken note of by the Hon'ble High Court of Bombay , in the case of M.B.K. Enterprises & Ors. v. Saidpur Jute Company Limited & Orx. [Civil Revision Application No. 120 of 2023 decided on November 12, 2024] reported in 2024 SCC OnLine Bom 3529 in para 55, 56, 58, 60 & 61 clearly laying down that there is no discrepancy or confusion with regard to the existing law. The law has been laid down and the same is very clear from the judgements of the Hon'ble Full Bench of the Karnataka High Court, the Hon'ble Supreme Court and the Hon'ble Gujarat High Court while interpreting different State Rent Acts and all of that clearly holds that the long term lease of the Respondent which exists till the year 2028 cannot be curtailed and affected by the coming of force of the State Rent Act and the clauses for eviction thereunder, as such clauses are not present in the Lease Deed. The Clauses of the State Rent Act for eviction of the Respondent Tenant shall only come into force when the lease of the Respondent Tenant expires and the Appellant/Landlord is able to establish any of the grounds for eviction as enunciated in Section 11 of the Jharkhand Building (Lease. Rent & Eviction) Control Act. 2001.

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M. In light of the settled position of law, the entire edifice of the Appellants' case collapses. The concurrent findings of the Trial Court and the 1^st Appellate Court are neither perverse nor contrary to law; rather, they are in complete consonance with the binding dicta of the Hon'ble Supreme Court and various High Courts holding that a subsisting fixed-term contractual lease cannot be prematurely terminated in the absence of an express forfeiture clause in the lease deed. The Jharkhand

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Building (Lease, Rent & Eviction) Control Act, 2001, being a welfare legislation enacted to prevent unreasonable eviction of tenants, cannot be invoked as a weapon to nullify the contractual assurances lawfully granted to the respondent under a registered lease.

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N. The non-obstante clause contained in Section 11 of the Act does not obliterate the lease itself, nor does it efface the rights created under Section 107 of the Transfer of Property Act. It merely restricts the grounds of eviction, and even those restrictions operate only when the landlord otherwise has a subsisting right to recover possession. During the currency of a fixed-term lease, such a right does not vest in the landlord unless the lease deed itself provides for forfeiture on the very grounds enumerated in the Act-which is admittedly absent in the present case. Any contrary interpretation would not only run afoul of binding precedent but would also defeat the very object of the Rent Control legislation.

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O. It is, therefore, submitted that the 2^nd Substantial Question of Law framed by this Hon'ble Court stands squarely answered against the appellants. The Rent Control Act neither override or curtail the guaranteed tenure of a fixed-term lease, nor does it render the contractual obligations between the parties redundant. The attempt of the appellants to rely upon the Rent Act to prematurely evict the respondent is legally untenable, misconceived, and opposed to the settled principles governing landlord-tenant jurisprudence.

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8. Case of the plaintiffs

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A. Plaintiffs are the legal heirs and successors of the land lord Amiya Kumar Banerjee who during his life time let out the ground floor of the residential house – four rooms described in Schedule-A to this plaint to the defendant on a monthly rental of Rs.1100/- per month according to English calendar

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month on 05.07.2001 under a registered deed of lease dated 05.07.2001.

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B. Besides others, one of the conditions in the said deed of lease was that the defendant/lessee shall pay rent of Rs.1100/- per month and the same shall be paid within first week of English calendar month as per Agreement between the lessor and lessee and the defendant, since the day of the tenancy, always paid rent every month as per Agreement dated 05.07.2001 against issuance of rent receipt duly maintained by Amiya Kumar Banerjee.

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C. The defendant paid rent upto the month of August, 2009 on 18.09.2009 and thereafter did not pay rent since September, 2009 up to filing of the suit and became defaulter in the eyes of law.

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D. Amiya Kumar Banerjee died on 04.02.2010 leaving behind the plaintiffs as his legal heirs. The plaint was amended vide order dated 17.02.2017 at 1^st appellate stage by adding that during the pendency of the 1^st appeal, the respondent Om Prakash Gupta had paid Rs.2530/- on 06.05.2016 and Rs. 2530/- on 02.07.2015 to the appellant Rana Banerjee (plaintiff no. 2), the son of the original landlord.

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E. A supplementary affidavit has been filed by the respondent in this case pursuant to the order dated 02.02.2026 by stating that they have remitted the rent in the account of the appellant no. 2 till January 2026 without deducting the two payments, which were incorporated by the appellants in their pleadings at appellate stage showing the bonafide on the part of the respondent.

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F. The plaintiffs also claimed that they required the suit premises for their personal necessity for their own use and in good faith. It was stated that the requirement of the plaintiffs will not be fulfilled on partial eviction.

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G. That on the ground of default and personal necessity, the plaintiffs requested the defendant and made demand to vacate the tenanted shops described in schedule “A” of the plaint several times, last of which was made on 01.08.2012, upon which the Defendant had undertaken to vacate the shop by 31^st August, 2012, but did not vacate the premises, hence necessity of the suit.

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H. That the total amount of arrears of rent from the month of September, 2009 upto the month of August, 2012 @ Rs. 1,100/- per month comes to Rs.39,600/-

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I. The cause of action has been pleaded in paragraph 10 of the plaint which are quoted as under: -

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“ 10. That the cause of action for the suit arose on 31^st September, 2009 the last date by which the rent for two months i.e. September and October, 2009 became dues and on 1^st of each of the subsequent months, when the Defendant became defaulter; on 1.8.12 when the plaintiffs made last demand and refused by the defendant, thereafter day to day within the jurisdiction of this court.”

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J. Paragraph 10 of the plaint was amended at the 1^st appellate stage vide order dated 17.02.2017 in the following manner: -

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“ 10. That the cause of action for the suit arose on 31^st December, 2009, the last date by which the rent for four months i.e. September to December , 2009 became dues and on 1^st of each of the subsequent months, when the Defendant became defaulter; on 1.8.12 when the plaintiffs made last demand and refused by the defendant, thereafter day to day within the jurisdiction of this court.”

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K. That the value of the suit for the purpose of jurisdiction and court-fee was fixed at Rs.13,200/- twelve months’ rent upon which ad-valorem court fee is being paid on the plaint.

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9. The defendant was duly served with summons, but did not appear before the court, and the matter proceeded ex-parte .

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

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i. Whether suit is maintainable in its present form?

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ii. Whether the plaintiff has any valid cause of action for this suit?

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iii. Whether there is any tenant-landlord relationship exists between the plaintiffs and defendant?

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iv. Whether the plaintiffs are bonafidly required the suit premises for their own use and occupation?

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v. Whether the defendant is defaulter in payment of rent as agreed upon through the indenture of lease dated 07.05.2001?

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vi. Whether the plaintiffs are entitled for any relief or reliefs as claimed?

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11. The learned trial court has considered issue Nos. ii, iii, iv and v together and recorded its findings as follows: -

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“ 6. Issue no. II, III, IV, & V

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These issues are most important issues and are co-related to each other …………………………………………………….

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Now the most important document to appreciate the tenancy & terms of tenancy of defendant is Ext. 4 i.e. registered indenture of lease dated 5.7.01. From perusal of contents of lease deed it appears that the said lease deed was came in effect from 1^st January, 2001 for a period of 28 years on a fixed rent of 1100/- per month with mutually agreed certain terms and conditions as:-

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1. Term of lease shall be for period of 28 years effective from 1^st January 2001 and expired on 31^st , December, 2028.

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2. Lessee shall pay rent of Rs. 1100/- per month. Same be paid within first week of English Calendar month.

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3. It is specifically agreed by the parties that rent given be paid after four months and within such period the lessee shall not be declared "defaulter". The said agreement was agreed by the lesser in view of special position and contribution of the lessee. It is specifically agreed by the lessor and lessee in para 7 of the Ext. 4 that "lessee shall not be evicted from the premises under lease on ground of non-payment of rent during the period of four months".

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om Ext. 4 first of all it became clear that there was a fixed term tenancy of 28 years effective from 1^st , January, 2001

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and has to expire on 31^st , December, 2028. This fact is no where disclosed by the plaintiff that the tenancy for 28 years of fixed term. It further appears from Ext. 4 that the lesser was agreed upon the terms that rent given be paid after four months and within such period the lessee shall not be declared defaulter. In the present suit the cause of action for the suit as stated in para 10 of the plaint is that non payment of rent by the defendant for two months i.e. for September and October, 2009 has arose the cause of action for this suit which is not in consonance with the indenture of lease i.e. Ext. 4 in which it was agreed that default in payment of rent up to four months shall not declared the defendant as defaulter. Again, it is admitted fact that the suit premises has been leased out to the defendant by one Amiya Kumar Banerjee for 28 years since 1^st , January, 2001. As per plaintiffs’ case defendant had stopped paying rent since September, 2009 whereas the said Amiya Banerjee was died on 4.2.10 leaving behind these plaintiffs as their legal heirs. It shows that during the life time of Amiya Banerjee defendant has not paid rent but the said Amiya Banerjee i.e. father of plaintiff no. 2 to 4 and husband of plaintiff no. 1 had not taken any step for eviction of this defendant. Again, whether the plaintiffs are still land lord, this has not been recognized by this defendant as no rent ever paid to the defendant to these plaintiffs nor the plaintiffs have given any notice to the defendant in writing to demand the rent as such the defendant was liable to pay. Ext. 5 series are the rent receipts during the life time of Amiya Kumar Banerjee, the original lessor.

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Thus, in light of my aforesaid findings I come on conclusion that these plaintiffs have failed to establish land lord tenant relationship between the plaintiffs and defendant and also they have failed to establish any cause of action for the present suit as mere defaulter of two months’ rent, as pleaded in para 10 of the plaint, is not sufficient to hold this defendant "defaulter" as per section 11(1) (D) of B.B.C Act because the written agreement between the said Amiya Banerjee along with the defendant clearly keeps away the legal provisions of two months. Hence, I find there is no cause of action as such available before the plaintiffs to file this suit.

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is worth to appreciate here the conduct of the plaintiffs as the plaintiffs have no where either in their pleadings or in

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their evidences have disclosed about the lease for fixed term tenancy of 28 years and have also no where disclosed that there was a provisions in such lease agreement (Ext. 4) "that the lessee i.e. the defendant could pay rent even after four months and within such period the lessee shall not be declared defaulter". This shows that plaintiff tried to suppress the material facts with this court regarding the nature of tenancy with the defendant. Accordingly, I further find that plaintiffs have not brought this suit with clean hands. It is an established principle of law that one should stand on his own leg. Here plaintiff has failed to establish their case thus, merely not contesting the suit by defendant is not contesting the suit by defendant is not sufficient to establish the plaintiffs’ case.

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Accordingly, as per my aforesaid discussion, I find that plaintiff failed to prove any cause of action for this suit and as such suit is not maintainable in its present form and plaintiff is not entitled to get any relief or reliefs in this suit.”

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12. The defendant-respondent, though had failed to appear before the learned trial court, but filed a show-cause against the aforesaid appeal contending, inter-alia, that the tenancy of the defendantrespondent was created by a written contract on various terms embodied in the Registered Instrument of lease for a fixed period of 28 years with a right of renewal in perpetuity. It was stated in the show cause that the learned court rightly held that the fixed term lease is not liable to terminate on the ground of non-payment of rent before the period of four months and the plaintiffs-appellants failed to make out any case of such default. The learned trial court further rightly held that it was malafide on the part of plaintiffs-appellants to conceal the fact of fixed term tenancy of 28 years and the plaintiffs-appellants after the death of lessor failed to take any steps to represent themselves as the land owner or the landlord entitled in order to receive rent. It was further stated in the show cause that the learned trial court rightly held that there was no cause of action for the plaintiffs to file the suit and it has been rightly held that the plaintiffs had not brought the suit in good faith with clean hands while the suit

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itself was premature inasmuch as that the same was presented without termination/revocation of the subsisting lease. Moreover, there was no proper service of summons upon the respondent/defendant.

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13. The learned 1^st appellate court has framed the following point for determination: -

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“Whether the plaintiffs are entitled for decree of eviction from suit property by setting aside the impugned judgment and order dated 28.02.2013 of the learned court of Civil Judge (Junior Division) Hazaribag.”

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14. Findings of the learned 1^st appellate court have been recorded from paragraph 10 onwards and the portions relevant for the purposes of the present case are as follows: -

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“ 10 . ………………………………………………………………..

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12 . Exhibit-4 is the indenture of lease executed on 05.07.2001 between Amiya Kumar Banerajee and Om Prakash Lal Gupta. From the perusal of this indenture, it appears that four shops measuring 512 sq. fit were leased for 28 years on a rent of Rs 1100/- P.M from 01.01.2001 expiring on 31.12.2028. As per the agreement the rent would be paid after four months and within such period the lessee shall not be declared defaulter in view of special position and contribution made by lessee. The defendants/lessee was to carry his cloth business and was not liable to be evicted from the premises on ground of nonpayment of rent during the period of four months. As per agreement at para 16 this indenture had superseded the previous lease dated 26.04.1993/11.05.1993 between the parties due to the death of one of the original lessor Smt Jyotsnamayee Devi in 1998.

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13 . Exhibit-5 series are the rent receipts towards payments of rent for the shops 1, 2, 3 & 4 comprising of the suit premises. The last rent receipt produced by the plaintiff is for August 2009 Dated 18.09.2009 marked as Exhibit-5/TT. However, from perusal of entire exhibit 5 series, it appears that the signature of the defendant over the counter foil of rent-receipts issued earlier is markedly different from the signature over the later rent-receipts, Which casts a cloud of suspicion over them.

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14 . Be that as it may, it is the pleading of the appellant that the cause of action for the suit arose on 31.12.2009 after

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rent for four months from September to December 2009 became due and payable and when the last demand for rent made on 01.08.12 was refused by the defendant. The plaintiff-appellant however during the pendency of appeal filed an amendment partition stating to have received a sum of Rs 2530/- dated 06.05.2016 and again Rs 2530/- dated 02.07.2015 as arrears of rent has been deposited by the defendants. No detail of payment and months for which rent was paid has been mentioned.

¶147

15 . It is further manifest from perusal of Indenture of lease, Exhibits-4, that rent could be paid after four months and within such period the defendants would not be declared defaulter in view of his special position and contribution. It is further manifest that the rent of the suit premises was subject to enhancement by 15% after every 10 years and as such monthly rent for the suit premises would come to Rs 1265/- only.

¶148

16 . Thus from sifting of evidence and material brought on record it is found that the lesser of the suit premises Sri Amiya Kumar Banerjee had leased out the suit premises for a period of 28 years and was not liable for eviction on ground of non-payment of rent during the period of four months. The defendants was liable to be evicted from the suit premises only upon violation of the terms of conditions for use and occupation of the suit premises. The cause of action has been stated to have arisen on 31.12.2009 while as per terms of the agreement the defendants was not liable to be evicted for non-payment of rent during the period of four month. Thus the cause of action could not have arisen on 31.12.2009. Moreover the last rent receipt produced by the plaintiff do not appear to bear the genuine signature of the defendants while there is no endorsement as regards the advance and adjustment of Rs 2000/-. The plaintiff has failed to make any assertion in its pleading as regards the adjustment of the advance payment or towards the enhancement of rent by 15% after every 10 years as stipulated by Exhibit-4. The enhancement would the monthly rent to Rs 1265/- and deposit of Rs 2530/substantiated that as well.

¶149

17 . From the perusal of Exhibit-4 it is further manifest that the suit premises comprising of four shops was leased out by Amiya Kumar Banerjee from 01.01.2001 for 28 years who himself died on 04.02.2010. The pleading of the

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plaintiff that no rent for the suit premises was paid after August 2009 does not appear to be endorsed by the lessor during his life time. The deed of lease itself stipulates the grounds for eviction and has no clause for eviction of the suit premises on the ground of personal necessity of the plaintiffs. Thus the plaintiffs do not have any cause of action for eviction of suit premise on the ground of personal necessity overriding the terms of Indenture of Lease. Be that as it may, the intention of the lessor appears, from the recital of the lease deed, that the lessee/defendant was given a security of tenure of tenancy due to long standing relationship between to the parties to the lease. The learned trial court as such was correct in arriving to the conclusion that the plaintiff had failed to prove any cause of action and the same was not maintainable need present form. The plaintiffs were rightly held to be not entitled to any relief as claimed.

¶153

18 . The learned Counsel for the plaintiff-appellant during the course of his arguments relied upon a number of judgments as reported in 2016 (4) JBCJ (SC); 2016 (1) JBCJ 429 (SC); 2017(1) JBCJ18 (SC); 2009 (2) JCR506 (Jhr); 2002 (1) JCR 121 (Jhr); 2000 (1) PLJR 975.

¶154

19 . In 2016 (4) JBCJ 63 (SC) , it has been held by the Hon'ble Supreme Court that the Court must deal with all the issues and evidences led by the parties before recording its finding. In 2016 (1) JBCJ 429 (SC) , it has been held in rent control legislation landlord can be said to be owner if he is entitled in his own right to evict tenant and then to retain control, hold and use premises for himself. In 2017 (1) JBCJ 18 (SC) the Hon'ble Court has held that the respondent having admitted the ownership of his original landlord and his tenancy with original landlord, he became appellant's tenant by operation of law on appellants proving his title over suit house. In 2009 (2) JCR 506 (Jhr) it has been held that the ground of bonafide personal requirement was not denied and disputed and only this much was said that no relationship of landlord and tenant existed and, therefore, the opposite party cannot claim eviction on any ground. In 2002 (1) JCR 121 (Jhr) the Hon'ble Jharkhand High Court has held that if default in payment of rent for more than two months is clearly proved, the defendants are liable to be evicted. In 2000 (1) PLJR 975 it has been held that section 11(1)(d) mandates payment of rent within the time fixed by the contract or

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where there is no such contract, by the last day of the month next following.

¶158

20 . Accordingly, the conclusion and finding of the learned trial court that the plaintiffs-appellants had failed to prove any ground so as to entitle them for eviction of the suit premises by cogent and reliable evidence and hence were not entitled for any relief or decree of eviction from the suit premises is here by affirmed. The learned trial court as such rightly dismissed the suit of the plaintiffs-appellants ex-parte against the defendant.”

¶159

15.

¶160

Thus, the trial court held that-

¶161

(i) Registered lease deed dated 05.07.2001 (exhibit-4) is a fixed term tenancy from 1^st January, 2001 for a period of 28 years on a fixed rent of 1100/- per month to be paid within first week of English Calendar month.

¶162

(ii) The rent could be paid after four months and within such period the lessee shall not be declared "defaulter" and this was in view of special position and contribution of the lessee.

¶163

(iii) It is specifically agreed in para 7 of the Ext. 4 that "lessee shall not be evicted from the premises under lease on ground of non-payment of rent during the period of four months". The lessor agreed upon the terms that rent could be paid after four months and within such period the lessee shall not be declared defaulter.

¶164

(iv) The plaintiff suppressed the fact that the tenancy was a fixed term tenant.

¶165

(v) The cause of action for the suit as stated in para 10 of the plaint is non- payment of rent by the defendant for two months i.e. for September and October, 2009, which is not in consonance with the indenture of lease i.e. Ext. 4.

¶166

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(vi) As per plaintiffs’ case, defendant had stopped paying rent since September, 2009 whereas the said Amiya Banerjee died on 04.02.2010 leaving behind these plaintiffs as their legal heirs. It shows that during the lifetime of Amiya Banerjee defendant has not paid rent but Amiya Banerjee had not taken any step for eviction of the defendant.

¶169

(vii) The plaintiffs have not been recognized by this defendant as landlord as no rent ever paid to the defendant to these plaintiffs nor the plaintiffs have given any notice to the defendant in writing to demand the rent as such which the defendant was liable to pay. Ext. 5 series are the rent receipts during the life time of Amiya Kumar Banerjee, the original lessor.

¶170

(viii) Thus, it was held that the plaintiffs have-

¶171

a. failed to establish landlord-tenant relationship between the plaintiffs and defendant.

¶172

b. failed to establish any cause of action for the present suit as mere defaulter of two months’ rent, as pleaded in para 10 of the plaint, is not sufficient to hold this defendant "defaulter" as per Section 11(1) (d) of B.B.C Act because the written agreement between the said Amiya Banerjee along with the defendant clearly keeps away the legal provisions of two months. Hence, there is no cause of action as such available before the plaintiffs to file this suit.

¶173

c. The plaintiffs suppressed material facts by not disclosing that the tenancy was for a fixed term and that there was a provision in such lease agreement (Ext. 4) “that the lessee i.e. the defendant could pay rent even after four months

¶174

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and within such period the lessee shall not be declared defaulter”.

¶177

16. The learned 1^st appellate court while dismissing the appeal held that-

¶178

i. Exhibit-4 is the indenture of lease executed on 05.07.2001 between Amiya Kumar Banerajee and defendant by which four shops were leased out for 28 years on a rent of Rs. 1100/- P.M. from 01.01.2001 expiring on 31.12.2028 subject to enhancement by 15% after every 10 years.

¶179

ii. As per the agreement, the rent could be paid after four months and within such period the defendant shall not be declared defaulter in view of special position and contribution made by the lessee. The defendant was not liable to be evicted from the premises on the ground of non-payment of rent during the period of four months.

¶180

iii. It is the pleading of the appellants that the cause of action for the suit arose on 31.12.2009 after rent for four months from September to December 2009 became due and payable and when the last demand for rent made on 01.08.12 was refused by the defendant.

¶181

iv. The plaintiffs-appellants however during the pendency of appeal filed an amendment petition stating to have received a sum of Rs 2530/- dated 06.05.2016 and again Rs 2530/- dated 02.07.2015 as arrears of rent deposited by the defendant and by this time the enhanced rent as per the agreement was Rs 1265/only.

¶182

v. Sri Amiya Kumar Banerjee had leased out the suit premises for a period of 28 years and was not liable for eviction on ground of non-payment of rent during the

¶183

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period of four months. The defendant was liable to be evicted from the suit premises only upon violation of the terms of conditions for use and occupation of the suit premises. The cause of action has been stated to have arisen on 31.12.2009, while as per terms of the agreement, the defendant was not liable to be evicted for non-payment of rent during the period of four month. Thus, the cause of action could not have arisen on 31.12.2009.

¶186

vi. From the perusal of Exhibit-4, it is further manifest that the suit premises comprising of four shops was leased out by Amiya Kumar Banerjee from 01.01.2001 for 28 years who himself died on 04.02.2010. The pleading of the plaintiffs that no rent for the suit premises was paid after August 2009 does not appear to be endorsed by the lessor during his life time.

¶187

vii. Personal necessity - The deed of lease itself stipulates the grounds for eviction and has no clause for eviction of the suit premises on the ground of personal necessity of the plaintiffs. Thus, the plaintiffs do not have any cause of action for eviction of suit premise on the ground of personal necessity overriding the terms of Indenture of Lease. The intention of the lessor appears, from the recital of the lease deed, that the lessee/defendant was given a security of tenure of tenancy due to long standing relationship between to the parties to the lease.

¶188

viii. The learned trial court as such was correct in arriving to the conclusion that the plaintiffs had failed to prove any cause of action and the same was not maintainable need present form. The plaintiffs were rightly held to be not entitled to any relief as claimed.

¶189

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17. Before proceeding to consider the substantial questions of law involved in this case, the provisions of the aforesaid Act of 2001 and also relevant clauses of the lease deed (exhibit-4) are quoted as under:

¶192

Landlord has been defined under the aforesaid Act of 2001 as under: -

¶193

Landlord. – “Landlord” includes the person who for the time being is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another, or on account or on behalf of or for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would be receive the rent, or be entitled to receive the rent, if the building were let to a tenant.

¶194

Section 11 (1) (c) and Section 11 (1) (d) of the aforesaid Act of 2001 are quoted as under: -

¶195

“ 11. Eviction of tenants . - (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of Section 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds:-

¶196

(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord:

¶197

Provided that, where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the building within the meaning of clause (b) of Section 2 and the rent so fixed shall be deemed to be the fair rent fixed under section 5; Explanation I. - In this clause the word "landlord" shall not include an agent referred to in clause (f) of Section 2.

¶198

Explanation II. - Where there are two or more premises let out by the landlord, it will be for the landlord to choose

¶199

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which one would be preferable to him and the tenant or tenants shall not be allowed to question such preference.

¶202

(d) where the amount of [two months] rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 16;”

¶203

Clause 2, 3 and 4 of the lease deed (exhibit-4) dated 05.07.2001 are quoted as under: -

¶204

“ 2. The term of lease shall be 28 (Twenty-Eight) years effective from 1^st January 2001 and expire on 31^st December 2028 A.D.

¶205

3. The Lessee shall pay rent of Rs. 1100/- (Rupees one thousand one hundred) per month for the four stalls aforesaid and the same shall be paid within first week of English Calendar month or as per agreement between the Lessor and Lessee. The rent can be paid after four months and within such period the Lessee shall not be declared DEFAULTER. This Agreement was accepted by Lessor in view of special position and contribution of the Lessee.

¶206

4. That the monthly rent shall be payable from the month of January 2001, the date of commence of present lease.”

¶207

Clause 7 of the lease deed also stipulated that the lessee shall not be evicted from the premises on the ground of non-payment of rent during the period of four months. Clause 7 of the lease deed is also quoted as under: -

¶208

“ 7. The Lessee shall enjoy peaceful use and occupation of the premises and shall carry on his cloth business or any other lawful business without any objection or disturbance from the Lessor and shall not be evicted from the premises and under lease on ground of non-payment of rent during the period of four months, and further the rent of the stall shall be enhanced by Lessors after every ten years at the rate of 15% of the present rent.”

¶209

1^st substantial question of law

¶210

Whether the appellate court below failed to consider the pleading and came to a wrong finding in view of Section 11(1)(d) of the Jharkhand Building (Lease, Rent &

¶211

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Eviction) Control Act ,2001 and held that there is a no landlord-tenant relationship between the plaintiff and defendant or not?

¶214

18. The specific case of the plaintiffs was that the defendant was to pay monthly rental of Rs. 1100/- per month according to English calendar month under the registered deed of lease dated 05.07.2001 which was payable within first week of English calendar month as per Agreement between the lessor and lessee and the lessor died on 04.02.2010 and the plaintiffs are his legal heirs and successors. The plaintiffs also required the suit premises for personal necessity; they requested the defendant to pay rent and vacate the premises on account of default and personal necessity to which the defendant agreed to vacate by 31.08.2012 but did not vacate and accordingly the suit seeking eviction was filed on 12^th September 2012. Their specific case was the defendant paid rent upto the month of August, 2009 on 18.09.2009 and thereafter did not pay rent since September, 2009 up to filing of the suit and became defaulter in the eyes of law and the total amount of arrears of rent from the month of September, 2009 upto the month of August, 2012 @ Rs. 1,100/- per month comes to Rs.39,600/-. Apart from the aforesaid, the cause of action has been pleaded in paragraph 10 of the plaint which are quoted as under: -

¶215

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Paragraph 10 of the plaint was amended at the 1^st appellate stage vide order dated 17.02.2017 in the following manner: -

¶217

“ 10. That the cause of action for the suit arose on 31^st December, 2009, the last date by which the rent for four months i.e. September to December , 2009 became dues and on 1^st of each of the subsequent months, when the Defendant became defaulter; on 1.8.12 when the plaintiffs made last demand and refused by the defendant, thereafter day to day within the jurisdiction of this court.”

¶218

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19. So far as the 1^st substantial question of law is concerned, this Court finds that the learned court has recorded a finding that the plaintiffs, who are no doubt legal heirs and successors of Amiya Kumar Banerjee (lessor), have failed to establish landlord-tenant relationship between the parties. The learned trial court observed that whether the plaintiffs were still landlord has not been recognized by the defendant as no rent was ever paid by the defendant to these plaintiffs nor the plaintiffs had given notice to the defendant in writing demanding the rent and that the Exhibit-5 series were the rent receipts issued during the lifetime of Amiya Kumar Banerjee, the original lessor. The learned trial court observed that as per the case of the plaintiffs, the defendant stopped paying rent since September 2009 whereas Amiya Kumar Banerjee died on 04.02.2010 and during the lifetime of Amiya Kumar Banerjee, the defendant had not paid the rent, but said Amiya Kumar Banerjee did not take any step for eviction of the defendant. The learned 1^st appellate court while dismissing the appeal, interalia, recorded that the pleadings of the plaintiffs that no rent for the suit premises was paid after August 2009 did not appear to have been endorsed by the lessor, namely, Amiya Kumar Banerjee during his lifetime.

¶221

20. This Court finds that as per the registered lease deed (Exhibit4), dated 05.07.2001, Amiya Kumar Banerjee is the lessor and it has been specially mentioned therein that the term ‘lessor’, unless excluded by or repugnant to the context, shall mean and include the legal heirs, representatives, executors, administrators and assigns and similar terminology has been used with respect to the lessee as well. Further, the provision of Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2001 clearly defines the term ‘landlord’ which includes the person who for the time being is receiving rent or is entitled to receive rent. The entitlement of the legal heirs of the original lessor, even as per the aforesaid clause in the lease deed (exhibit-4), cannot be denied. There is no dispute in the present case

¶222

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that the plaintiffs inherited the property as legal heirs upon death of the original lessor, Amiya Kumar Banerjee.

¶225

21. This Court is of the considered view that the lease deed (exhibit-4) itself included the legal heirs of the lessor within the meaning of the term ‘lessor’, but the learned trial court failed to consider the lease deed (exhibit-4) while coming to a finding that there was no relationship of landlord and tenant between the parties after the death of the lessor, as upon death of the lessor, the defendant had not recognized his legal heirs, the plaintiffs, as the owners of the suit property. The Lease Deed dated 05.07.2001 specifically states that the term ‘Lessor’ shall include its ‘Legal Heirs’ etc. It is thus evident that the Lease Deed itself contemplated that after death of the original landlord, his legal heirs will step into his shoes and the defendant would be liable to pay rent to the new landlord. This is over and above the fact that the provision of Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2001 clearly defines the term ‘landlord’ which includes the person, who for the time being is receiving rent, or is entitled to receive rent and there can be no doubt that the suit property devolved upon the plaintiffs, the legal heirs of the original lessor Amiya Kumar Banerjee and hence they were entitled to receive rent. The P.W-1 in his evidence has fully supported the averments made in the plaint including that how the defendant became defaulter in terms of the lease deed (exhibit-4) right from the month of September 2009 till August 2012 and also that the plaintiffs have made repeated requests to the defendant to pay rent and also asked the defendant to vacate the suit premises on account of personal necessity and on 01.08.2012 the defendant had agreed to vacate the premises by 31.08.2012 , but neither paid the rent nor vacated the suit premises and then the suit was filed. The proceeding was ex-parte and the entire pleadings and evidences of the plaintiffs remained uncontroverted. 22. As held by the Hon'ble Supreme Court in the case of Mahendra Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogul and Ors., reported in (1997) 5 SCC 329 , paragraph 6, that it is well-settled that a

¶226

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transferee of the landlord’s rights steps into the shoes of landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy and the Transfer of Property Act does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment of the tenant is not necessary to confer validity of the transfer of landlord's rights. It has also been held by the Hon’ble Supreme Court in the case of Gopi Vs. Ballabh Vyas reported in (2022) 19 SCC 204 that a bare perusal of Section 109 of Transfer of Property Act would reveal that if a landlord transfers the property leased out or any part thereof, the transferee, in the absence of any contract to the contrary, shall possess all the rights of the landlord. Dealing specifically with the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 [which has been adapted by the state of Jharkhand upon bifurcation of the State of Bihar in the year 2000] a Division Bench of the Hon'ble Patna High Court in the case of Smt. Kalawati Tripathi & Ors. Vs. Smt. Damayanti Devi & Ors., reported in 1992 SCC Online Pat 130 has held that “an attornment to the lessee to the assignee of the lessor is not necessary for creating a subsisting tenancy. The transferee of the lessee steps into the shoes and possess all the rights which the transferor has. The attornment by the tenant is not essential to give validity to the transfer made in favour of the transferee.”

¶229

23. It, therefore, transpires from the aforementioned facts and circumstances as well as the judicial precedents that the transferee/assigns or legal heirs ipso facto stepped into the shoes of the lessor -landlord upon his death and attornment by the defendant-tenant was not required.

¶230

24. In the present case, the lease deed (exhibit-4) itself includes the legal heirs of the lessor within the meaning of the term ‘lessor’ and therefore, there can be no doubt that the plaintiffs, who are admittedly the legal heirs of the original lessor, automatically stepped into the shoes of the original lessor and the defendant was under legal obligation to tender rent to the legal heirs of the original lessor even as

¶231

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per the lease deed (exhibit-4) and there was neither any occasion nor any scope for the defendant to deny the relationship of landlord and tenant between the legal heirs of the original lessor and the defendant. 25. The fact remains that the defendant had not filed any written statement and the suit proceeding was ex-parte . In such circumstances, the finding of the learned trial court, that the defendant had not recognized the legal heirs of the original lessor, the plaintiffs, as the owners of the suit property and hence there was no relationship of landlord and tenant between the parties and hence the defendant was not a defaulter in payment of rent, is perverse and cannot be sustained in law. This aspect of the matter has not been considered by the learned 1^st appellate court also while dismissing the appeal.

¶234

26. As a sequel to the aforesaid findings, it is also to be examined as to whether the defendant is a defaulter in payment of rent within the meaning of Section 11(1) (d) of the Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2001. As held above, the provision of Jharkhand Buildings (Lease, Rent and Eviction) Control Act, 2001 clearly defines the term ‘landlord’ which includes the person, who for the time being is receiving rent, or is entitled to receive rent and there can be no doubt that the suit property devolved upon the plaintiffs, the legal heirs of the original lessor Amiya Kumar Banerjee and hence they were entitled to receive rent. This would necessarily mean that they were also entitled to receive the rent which fell in arrears during the lifetime of Amiya Kumar Banerjee from August 2009 till his death on 04.02.2010.

¶235

27. The learned trial court has recorded a finding that though as per the case of the plaintiffs, the rent was not paid since September 2009, but during the lifetime, the original lessor, Amiya Banerjee had not taken any step for eviction of the defendant and the 1^st appellate court has recorded a finding that the pleading of the plaintiff that no rent for the suit premises was paid after August 2009 does not appear to be endorsed by the lessor during his lifetime. However, the learned courts have failed to consider that the plaintiffs being the legal heirs and

¶236

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successors of the original lessor were certainly entitled to claim the rent and that the defendant was a defaulter in terms of the lease deed (exhibit-4) even for the period when the original lessor was alive, that is from September 2009 till his death on 04.02.2010. As per the lease deed (exhibit-4), the rent was payable for every month in the 1^st week and thus the rent for the month of September 2009 was due and payable as per the lease deed (exhibit-4) in the 1^st week of September 2009 and similarly, the rent for the month of October 2009, November 2009, December 2009 and January 2009 was payable in the 1^st week of each month and during the life time of the original lessor, Amiya Banerjee the defendant did not pay rent for continuous five months up to January 2009 and died on 04.02.2010.

¶239

28. As per the lease deed (exhibit-4), the lessee could not have been declared as defaulter for 4 months on account of non-payment of rent but the aforesaid facts revealed that the lessee was a defaulter in payment of rent for 4 months in terms of the lease deed (exhibit-4) even during the lifetime of Amiya Kumar Banerjee, the original lessor. It is important to note that the clause of the lease deed (exhibit4) does not provide for payment of rent of a particular month in the following month as provided under section 11(1) (d) of the aforesaid Act of 2001 which is applicable in the absence of any contract. The lease deed provides payment of rent on monthly basis in the 1^st week of every month but the lessee could not have been declared as defaulter for 4 months on account of non-payment of rent.

¶240

29. In the judgment passed by the Hon’ble Patna High Court reported in 2000 SCC OnLine Pat 26 (Balwant Singh & Others vs. Anand Kumar Sharma &Others) dealing with Bihar Building (Lease, Rent and Eviction) Control Act, which has been adopted by the State of Jharkhand, the provisions of Section 11(1)(d) were examined and it was observed that the particulars regarding payment of rent showed that there was implied contract between the parties for payment of rent in a particular manner. In that background, it was observed that Section 11(1)(d) mandates payment of rent within the time fixed by

¶241

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the contract or where there is no such contract, by the last day of the month next following. In the aforesaid judgment, the Hon’ble Patna High Court has also considered the judgment of the Hon’ble Division Bench of Patna High Court reported in AIR 1964 Patna 401 (Niranjan Pal vs. Chaitanyalal Ghosh) wherein it was clearly held that the contract referred to under Section 11(1)(d) of the Contract Act is an express and not an implied contract. In the said Full Bench judgment, it was also held that for seeking decree of eviction, it was mandatory for the landlord to give notice under Section 106 of the Transfer of Property Act and in the aforesaid Division Bench judgment reported in 2000 SCC OnLine Pat 26 (supra) , it was observed that the said view of giving notice under Section 106 of the Transfer of Property Act was overruled by the Hon’ble Supreme Court in the case of V. Dhanapal Chattiar vs. Yesodai Ammal reported in AIR 1979 SC 1745 , but the question as to whether the BBC Act envisages any implied contract in contradiction to written contract, there was no difference of opinion amongst the judges and the judgment continues to hold the field on that point. The Hon’ble Division Bench in the case reported in 2000 SCC OnLine Pat 26 (supra) also considered that in another judgment in the case of Ramji Prasad vs. Abhay Kumar Jain reported in 1991 BBCJ 226 , a similar view was expressed and it was held that theory of implied contract for payment of rent at the convenience of tenant is inapplicable in the context of Section 11(1)(d) of the BBC Act.

¶244

30. It has been held in [Balwant Singh & Others versus Anand Kumar Sharma & Others] (supra) in paragraph 8 that Section 11(1) (d) of the Act mandates payment of rent within the time fixed by the contract or where there is no such contract, by the last day of the month so following. Since the lease deed itself provided for payment of rent every month in the 1^st week of the month, the provision under Section 11(1) (d) of the Act of 2001 that rent was to be paid by the last day of the month so following, has no applicability as the rent was to be paid as per the contract, that is, lease deed (exhibit-4).

¶245

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31. Further, admittedly, the rent was not paid by the defendant to the legal heirs of the original lessor till the date of filing of the suit in September 2012 and part of the rent was suo-moto tendered by the defendant to the plaintiffs in the year 2015 and 2016 which was also brought on record by the plaintiffs by way of amendment at the 1^st appellate stage.

¶248

32. This Court further finds that Section 11(1)(d) of the aforesaid Act of 2001 clearly provides that notwithstanding anything contained in any contract or law to the contrary a tenant in possession of a building shall not be liable to eviction except in execution of decree passed by the court, inter-alia, on the ground where the amount of two months’ rent, lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract by the last day of month next following that for which the rent it payable or by not having been validly remitted or deposited in accordance with Section 16. Section 16 is not attracted in the present case in view of the fact that the same deals with deposition of rent determined by controller during the pendency of appeal or revision.

¶249

33. As per the aforesaid provision of Section 11(1)(d) of the Act of 2001, the amount of rent is required to be paid within the time fixed by the contract or in absence of such contract by the last date of the month next following that for which the rent is payable. As per the clause in the contract, the defendant could not be declared as a defaulter in payment of rent for the period of four months. Meaning thereby, the rent could be paid uptill the expiry of four months.

¶250

34. This Court finds that admittedly, the defendant did not remit rent to Amiya Kumar Banerjee in terms of lease deed/contract right for the month from September 2009 onwards which was to be paid on monthly basis. As per the lease deed (exhibit-4), the defendant could not have been declared a defaulter till expiry of four months and Amiya Kumar Banerjee died on 04.02.2010. As per the contract, the rent was payable within first week of English Calendar month.

¶251

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Meaning thereby, the rent for the month of September 2009 was payable in the first week of September 2009.

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35. This Court finds that the defendant became a defaulter with respect to payment of rent right from the month of September 2009 during the lifetime of Amiya Kumar Banerjee and continued to remain defaulter. Hence, the learned courts failed to consider the pleading, materials on record and also the provisions of law and came to a wrong finding that the defendant was not a defaulter in terms of Section 11(1)(d) of the aforesaid Act of 2001.

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36. In view of the aforesaid findings regarding landlord-tenant relationship and default in payment of rent in the light of the lease deed (exhibit-4) and the pleadings in the plaint and materials placed on record, while answering the 1^st substantial question of law in favor of the appellants-plaintiffs and against the respondentdefendant, it is held that the learned court failed to consider the pleading and came to a wrong finding in view of Section 11(1)(d) of the Jharkhand Building (Lease, Rent & Eviction) Control Act ,2001 and wrongly held that there is no landlord-tenant relationship between the plaintiffs and defendant .

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37. Consequently, it is held that there was landlord-tenant relationship between the parties and the defendant was defaulter in payment of rent since September 2009 till the filing of the suit in September 2012 and was a defaulter within the meaning of Section 11 (1) (d) of the aforesaid Act of 2001. Further, the answer to the 2^nd substantial question of law is also to be considered.

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38. 2^nd substantial question of law

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Whether the learned courts have failed to appreciate that the Rent Control Act being a special legislation would prevail over the lease agreement or any other contractual obligations in view of Section 11 of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2001?

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39. So far as 2^nd substantial question of law is concerned, this Court finds that the learned court held that the tenancy was a fixed term tenancy of 28 years and therefore the lessee could not be evicted before expiry of 28 years.

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40. It is the specific case of the appellants that the learned courts have also held that since, it is a fixed term lease of 28 years, the lessee cannot be evicted before the expiry of 28 years. It is their case that even as per the lease deed (exhibit-4) the defendant was defaulter in payment of rent since September 2009 till August 2012.

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41. On the other hand, it is the specific case of the respondent that-

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a. by referring to numerous judgements that the long-term lease of the Respondent which exists till the year 2028 cannot be curtailed and affected by the Act of 2001 by referring to the clauses for eviction under the Act, in absence of such clauses in the lease deed.

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b. It is their case that the Clauses of the State Rent Act for eviction of the Tenant shall only come into force when the lease expires and the Landlord is able to establish any of the grounds for eviction as enunciated in Section 11 of the Act of 2001.

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c. The concurrent findings of the Trial Court and the 1^st Appellate Court are neither perverse nor contrary to law. A subsisting fixed-term contractual lease cannot be prematurely terminated in the absence of an express forfeiture clause in the lease deed.

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d. The Act of 2001, being a welfare legislation enacted to prevent unreasonable eviction of tenants, cannot be invoked as a weapon to nullify the contractual assurances lawfully granted to the respondent under a registered lease.

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e. The non-obstante clause contained in Section 11 of the Act does not obliterate the lease itself, nor does it efface the rights created under Section 107 of the

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Transfer of Property Act. It merely restricts the grounds of eviction, and even those restrictions operate only when the landlord otherwise has a subsisting right to recover possession. During the currency of a fixedterm lease, such a right does not vest in the landlord unless the lease deed itself provides for forfeiture on the very grounds enumerated in the Act-which as per the respondent is absent in the present case.

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42. The Hon'ble Supreme Court in the case of Modern Hotel, Gudur K. Radhakrishnaiah & Ors. [Civil Appeal No. 4108 of 1982 decided on April 26, 1989] reported in (1989) 2 SCC 686 specifically laid down that in absence of a forfeiture clause in the Lease leading to termination by forfeiture, the Contractual Tenancy will be subsisting under the provision of the Transfer of Property Act and there could not be any eviction from such tenancy in para no. 11 as hereunder:

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"11. The second contention advanced before us is equally weighty. The lease being for a term of 30 years is to expire in September 1999. As we have already said, the lease did not stipulate a forfeiture clause and in the absence of a forfeiture clause in the lease leading to termination by forfeiture, the contractual tenancy was subsisting under the provisions of the Transfer of Property Act and there could not be any eviction from such a tenancy."

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43. The Full Bench of Hon’ble Karnataka High Court in the case of Ram Krishna Theatres (supra) has held that the landlord shall have the right to evict a tenant during the subsistence of the lease period only in a situation when there is a specific clause in the lease deed for the eviction of the tenant and not otherwise and even in a situation when there exists such a clause, the said clause will and can only be exercised keeping in view the provisions as entailed in the Rent Act for the eviction of a tenant, making it clear that a contractual tenancy cannot be terminated during its subsistence in absence of any expressed clause to that effect. The paragraph 27 of the aforesaid judgment is quoted as under: -

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“27. From the above it is clear that while the contractual tenancy subsists, the Rent Control Act cannot be applied to evict the tenant. The observation of the Supreme Court is not based on any particular provision of the relevant Andhra Pradesh Rent Control Act but is based on the principles flowing out of the provisions of the T.P. Act and the interest created in the tenant under a term lease Mr. AG. Holla, learned Counsel for the petitioner, however, very fairly brought to our notice that term leases were excluded from the ambit of the Andhra Pradesh Act. But the learned Counsel also rightly contended that the Decision of the Supreme Court is not based on any such provision because such provision was not noticed in the Decision of the Supreme Court as a ground for the above observation 28. It is unnecessary to multiply the citations as we do not find any other Decision which is quite relevant to the question raised before us. The meaning attributed to the non-obstante clause in sub-section (1) of Section 21 of the Act in Bharath Petroleum Corporation's case [AIR 1986 Karnataka 191 ILR 1984 Kar 401.] is not correct; the overriding effect of the said clause is limited to the subject referred to immediately by the words following. In other words, even if any other law or contract provides for recovery of possession the same shall be of no effect and the eviction can be made only on the grounds stated in clauses (a) to (p) of the proviso. This indicates that the landlord should have a right to recover possession and that right cannot be held to vest in him during the period of the term lease unless there is something in the lease deed which provides for the determination of the lease; in such a situation, even after the determination of the lease in the manner stated in the term lease, the recovery of possession will have to be made only by recourse to Section 21(1)."

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44. The Hon'ble Supreme Court in the Laxmidas Bapudas Case (Supra) reported in (2001) 7 SCC 409 held that none of the State Rent Control enactments have either overridden or diluted the mandate of Section 107 of the Transfer of Property Act, which expressly governs leases of immovable property from year to year, for a term exceeding one year, or where an annual rent is reserved There is nothing in any of the Rent Acts to suggest that a valid contractual tenancy ceases to have legal efficacy merely upon the Act coming into force. It has been

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consistently held that the tenure of a subsisting fixed-term lease cannot be shortened or diluted except in accordance with a forfeiture clause expressly incorporated in the lease deed. Consequently, eviction proceedings against a tenant holding under a fixed-term contractual lease may be initiated during the currency of such lease only on grounds specifically enumerated in clauses for eviction in the Act, and only where such grounds are also recognized in the lease deed as giving rise to forfeiture never otherwise. The paragraphs 17 and 18 of the aforesaid judgement are quoted as under:

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“17. It may have to be scrutinized as to what extent the provisions of Section 21 of the Karnataka Rent Act shall have an overriding effect over any other law or a contract. The Rent Acts have primarily been made, if not wholly, to protect the interest of tenants, to restrict charging of excessive rent and their rampant eviction at will. In that view of the matter, Section 21 of the Karnataka Rent Act provides that notwithstanding anything to the contrary contained in any contract, no order for eviction of a tenant shall be made by the court or any other authority Undoubtedly, it is a provision providing statutory protection to the tenants as it is also evident from the heading of Section 21 of the Act. This prohibition is however relaxed under the proviso saying that an order for recovery of possession of the premises can be made on an application made on that behalf only on the grounds as enumerated in clauses (a) to (p) to the proviso. The non obstante clause contained under Section 21 of the Act, will override any condition in any contract which may provide a ground for eviction other than those enumerated in clauses (a) to (p) of sub-section (1) of Section 21. Such an additional ground in a contract shall be rendered ineffective. The use of the word "only" in the proviso is significant to emphasise that it relates to grounds alone which cannot be added over and above as provided. The whole contract or other conditions not related to eviction or grounds of eviction shall not be affected. So far as a fixedterm lease is concerned, it shall be affected only to the extent that even after expiry of period of the lease the possession cannot be obtained by the lessor unless one or more of the grounds contained in Section 21 of the Act are available for eviction of the tenant. There is nothing to indicate nor has it been held in any case that in view of

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Section 21 of the Karnataka Rent Act a contract of fixedterm tenancy stands obliterated in totality. As indicated in the earlier part of this judgment in the case of Dhanapal Chettiar ((1979) 4 SCC 214 AIR 1979 SC 1745] it has been observed in para 5 that none of the State Rent Acts have abrogated or affected the provisions of Section 107 of the Transfer of Property Act which provides for lease of immovable property from year to year or for a term more than a year or reserving a yearly rent. As indicated earlier, the proviso to sub-section (1) of Section 21 of the Karnataka Rent Act limits the grounds on which a landlord can seek eviction of a tenant. Nothing has been indicated by reasons of which it can be concluded that a contract of tenancy loses significance on coming into force of the Karnataka Rent Act. The effect of the non obstante clause, in our view has been rightly explained in the Full Bench decision in the cases of Sri Ramakrishna Theatres Lid v. General Investments and Commercial Corpn. Lid. (Sri Ramakrishna Theatres Ltd. v. General Investments and Commercial Corpn. Lid, AIR 1993 Kant 90 ILR 1992 Kant 1296 (FB)) In one of the decisions of this Court reported in Modern Hotel v. K. Radhakrishnaiah [(1989) 2 SCC 686] it has been held that period of a subsisting lease for fixed term could not be curtailed in the absence of a forfeiture clause in the lease.

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18. The effect of the non obstante clause contained under Section 21 of the Karnataka Rent Act on the fixed-term contractual lease may be explained as follows:

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(1) On expiry of period of the fixed-term lease, the tenant would be liable for eviction only on the grounds as enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act.

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(ii) Any ground contained in the agreement of lease other than or in addition to the grounds enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act shall remain inoperative

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(in) Proceedings for eviction of a tenant under a fixed-term contractual lease can be initiated during subsistence or currency of the lease only on a ground as may be enumerated in clauses (a) to (p) of sub-section (1) of Section 21 of the Act and it is also provided as one of the

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grounds for forfeiture of the lease rights in the lease deed, not otherwise,

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(iv) The period of fixed-term lease is ensured and remains protected except in the cases indicated in the preceding paragraph.

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45. Further, the Hon’ble Division Bench of the Gujarat High Court in the case of Jabal C Lashkari Case (Supra) (affirmed by the Hon'ble Supreme Court) took note of the observations made by the Full Bench of the Karnataka High Court & the Hon'ble Supreme Court and held the same as was held by the Hon'ble Supreme Court in Laxmidas Bapudas Case (Supra) and observed that a tenant in a fixed term lease can only be evicted on the grounds as enumerated in the clause for eviction in the Rent Control Act, provided the said ground is also available in the lease deed and the rights enumerated in the Lease Deed and the Transfer of Property Act cannot be curtailed with the advent of the State Rent Act and the long terms lease is protected.

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46. Section 11 of the JBC Act begins with non-obstante clause i.e. notwithstanding anything contained in any contract or law to the contrary and at the same time, Section 11(1) (d) while dealing with the point of default in payment of rent of two months’, rent itself refers to the fact that the rent can be paid within time fixed by the contract or in the absence of such contract by the last day of month next following that for which the rent is payable.

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47. The Act of 2001 itself contemplates and reads the contract between the parties with respect to default in payment of rent. The lease deed (exhibit-4) clearly provides vide clause 7 that the lessee shall enjoy peaceful use and occupation of the premises without any disturbance from the lessor and shall not be evicted from premises under lease on the ground of non-payment of rent during the period of four months. Meaning thereby, if the lessee defaults in payment of rent for a period exceeding four months, the lessee will be liable for eviction.

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48. It has been specifically submitted by the learned counsel for the respondent that during the currency of a fixed term lease, such a right seeking eviction does not vest in the landlord unless the lease deed provides for forfeiture on the very ground enumerated in the Act.

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49. This Court finds that Section 11 of the Act of 2001 clearly takes into consideration the contract with respect to payment of rent between the landlord and tenant and the fixed term lease in the present case clearly provides a right upon the landlord to evict the tenant on account of default in payment of rent. In such circumstances, the ground for eviction, as contemplated under Section 11(1)(d) when read with the lease deed/contract having the forfeiture of lease holding rights on account of default in payment of rent, is clearly attracted in the present case, even when the judgments relied upon by the learned counsel for the respondent are taken into consideration in the light of section 11(1) (d) of the Act of 2001 read with the lease deed/contract. This would be the position even in the light of the judgements relied upon by the learned counsel for the respondent wherein it has been held that during the currency of a fixed term lease, a right seeking eviction under rent control Act does not vest in the landlord unless the lease deed provides for forfeiture on the very ground enumerated in the Act.

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50. The aforesaid aspects of the matter have not been properly considered by the learned courts.

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51. Consequently, the 2^nd substantial question of law is answered in favour of the appellants-plaintiffs and against the respondentdefendant by holding that the learned courts have failed to appreciate that the Rent Control Act was required to be read with the contractual obligation under lease deed (exhibit-4) which has a forfeiture clause no. 7 on account of default in payment of rent in terms of the said clause as the contractual obligations are duly protected under Section 11(1) (d) of the Act of 2001.

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52. While answering the 1^st substantial question of law, this Court has already discussed as to how the defendant was a defaulter in terms

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of the clauses in the lease deed (exhibit-4) particularly clause 7 thereof read with section 11(1)(d) of the aforesaid Act of 2001. It is important to note that the lease deed (exhibit-4) is expiring in the month of December 2028.

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53. As a result of the answers to both the substantial questions of law in favour of the appellants (plaintiffs), the suit is decreed by holding that the defendant is liable to be evicted on account of nonpayment of rent in terms of Section 11(1)(d) of the Act of 2001 read with the terms and conditions of the lease deed (exhibit-4). The defendant is directed to evict the suit premises within 2 months from today failing which it shall be open to the plaintiffs to evict the defendant through the process of law.

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54. Accordingly, this 2^nd appeal is allowed .

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

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56. Let a copy of this order be communicated to the court concerned through ‘e-mail/FAX’.

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(Anubha Rawat Choudhary, J.)

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Dated: 09.06.2026 Uploaded On: 11.06.2026 Mukul/-

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