OM PRAKASH AGRAWAL Vs. L N AGRAWAL

JUDGEMENT

(1.) Heard learned counsel for the appellant. this batch of three analogous appeals are being heard together and disposed of by a common judgment. the plaintiff is the appellant, and the appeals are against a judgment of affirmance. The trial court had dismissed the suits for eviction under the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, (hereinafter referred to as 'the Act'), and the plaintiff's appeals were also dismissed. hence the present second appeals. The trial Court had disposed of the three suits by a common judgment and decree dated 20-3-1991, passed by Mr. S.N. Sharma, Additional Munsif, Dhanbad, and the Court of appeal below disposed of the three appeals by a common judgment dated 26-9-1998, passed by Shri N.K. Sharma, 6th Additional District Judge, Dhanbad. Second Appeal No. 7 of 1999 (R) arises out of Title (Eviction) Appeal No. 22 of 1991 (Om Prakash Agarwalla v. M/s L.N. Agrawalla and Brothers) which in its turn, had arisen out of Title (Eviction) Suit No. 6 of 1984 (Om Prakash Agarwalla v. M/s L.N. Agrawalla and Brothers). Second Appeal No. 8 of 1999 (R) arise out of Title (Eviction) Appeal No. 21 of 1991 (Om Prakash Agarwalla v. M/s L.N. Agarwalla and Brothers) which, in its turn, had arisen out of Title (Eviction) Suit No. 5 of 1984 (Om Prakash Agarwalla v. M/s L.N. Agarwalla and Brothers). Second Appeal No.9 of 1999 (R) arises out of Title (Eviction) Appeal No. 23 of 1991 (Om Praksh Agarwalla v. M/s L.N. Agarwalla and Brothers) which, in its turn, had arisen out of Title (Eviction) Suit No. 7 of 1984 (Om Prakash Agarwalls v. M/s L.N. Agarwalla and Brothers).

(2.) For the purpose of disposal of the present appeals, we shall go by the position of the parties in the trial Court. The three suits and the appeals on facts are almost entirely in common with each other, the only difference is that the three relate to three differeent premises let out by the plaintiff to the defendant for commercial purposes. The plaintiff instituted the three suits for eiction of the defendant from the suit premises on the grounds of default in payment of rent as well as personal necessity. The plaintiff's case is that there was default of two months and, therefore, the defendant is liable to eviction in terms of S. 11 (1) (d) of the Act. According to the plaintiff, the rent for the month of july,1981, was paid on 2-9-1981, rent for the month of August, 1981 was paid in time, and rent for September, 1981, was paid on 10-11-1981. the defendants are month to month tenant, and there is no written agreement between the parties. The defendant's case is that the tenancy had commenced with a clear stipulation orally agreed upon between the parties that the monthly rental would be paid by the defendant to the plaintiff in a lumpsum and as per the convenience of the parties which has been followed although. After having considered the entire evidence on record, the trial Court has answered the question in favour of the defendant, which has been affirmed in appeal.

(3.) While assailing the validity of the judgment on the question of default in payment of rent, learned counsel for the appellant submitted that the Court of appeal below has erred in law, and misinterpreted and misapplied the provisions of S. 11 (1) (d) of the Act. It is submitted that it ought to have been held that in order to attract the provisions of S. 11 (1) (d) of the Act, it is not essential for the plaintiff to establish that the default was of two consecutive months. He relies on theee judgment of a learned Single Judge of this Court reported in 1989 Pat. LJR (HC) 587 (Sayeed Abdul Wahab v. Md. Sakman), and the judgment of the Full Bench of this Court reported in 1964 BLJR 583 : (AIR 1964 Patna 401) (N. Pal v. C. Ghose). Learneed counsel for the defendant has, on the other hand, submitted that the issue is concluded by concurrent findings of fact, and it has been held as an issue of fact that it was one of the conditions of oral agreement between the parties ever since the commencement of the tenancy that the rent shall be paid in lumpsum and as per the convience of the parties. He relies on the judgment of the Supreeme Court reported in AIR 1989 SC 920 (Rashik Lal v. Shah Gokuldas).