B.D COSTA Vs. ASSOCIATED CONSTRUCTION CO.LTD

JUDGEMENT

(1.) THIS appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the judgment and decree dated 19.3.1991, passed by a learned Single Judge of this court in First Appeal No. 128 of 1985(R), by which he has allowed the appeal in part and set aside the judgment and decree dated 31.8.1985, passed by the 2nd Additional Subordinate Judge, Jamshedpur, in Title Suit No. 79/1 of 1980 -84, by which the trial court has decreed the suit for eviction of the defendant - respondent from the suit premises and for realisation of the amount being arrears of occupational charges. The learned Single Judge upheld the decree for realisation of the arrears of the occupational charges but set aside the decree for eviction passed by the trial court.

(2.) THE case of the plaintiff -appellant, in brief, is that it is a registered partnership firm carrying on Hotel business at 'D ' Costa Mansion, Bistupur, in the town of Jamshedpur in the name and style of "Boulevard Hotel". It has taken the first floor of the said Mansion on rent. There are 14 rooms in the first floor of the said Hotel for providing accommodation to persons desiring the same, for which the occupational charges per day are payable. The rooms are provided with attached lavatory with W.C. Each room is provided with light, fans and in some of the rooms, air -conditioners are also fitted. Each room is furnished according to the daily occupational charges leviable for the room. The plaintiff had its hired servants and maid servants for sweeping and cleaning of the rooms, passages, stair -case etc., which are included within the hotel premises and maintenance of rooms, passages and stair -case are done by the plaintiff. The entrance to the hostel is by a stair - case facing the main road with a sign -board in front of the entrance giving the name of the hotel and similar type of the board is also displayed just at the starting of the steps of the stair -case with the words "Boulevard Hotel Entrance". A notice -board is also fitted at the main entrance With the words "Right of Admission is reserved" inscribed on it. There is a collapsable gate and roiling shutter at the entrance of the hotel, where a watchman is stationed by the plaintiff to keep control over the entry and exit of the persons permitted to have accommodation. The main -gate of the hotel is opened at 5.30 A.M. and 6 A.M. in the summer and winter, respectively and it remains opened till 10 P.M. Thereafter, the gate is closed, except in cases of emergency, the same is opened on the request of the persons having accommodation therein. The supply of electricity and water to the rooms in occupation of the persons is exclusively under the control of the plaintiff and the permitted occupiers can only use dim light after 11 0 ' clock in the night. There is a Manager to lookafter the affairs of the hotel. There is a counter at the first floor just at the point where the stair -case terminates and there a Receptionist remains on duty from 6 A.M. to 10 P.M. The occupiers are required to follow the instructions of the hotel and the instruction - sheets have been kept in all the rooms. The defendant -respondent with the leave and licence of the plaintiff occupied rooms no.2 and 3 on a daily occupational charge of Rs. 6/ - for each room. Defendant - respondent defaulted in payment of occupational charges from 1.9.1979. The plaintiff also required the aforesaid rooms for modification thereof and lavatories. The plaintiff also requested the defendant orally as well as in writing to give vacant possession of the rooms, but the defendant - respondent refused to do the same. It is further stated that some modifications were made in the aforesaid two rooms and the daily occupational charges were increased from Rs. 6/ - per day per room to Rs. 35/ - for each room with effect from 9.5.1980. The defendant was also in arrears of the occupational charges with effect from 1.9.1979 at the rate of Rs. 6/ - per room up to 8.5.1980 and at the rate of Rs. 35/ - for each room from 9.5.1980 to 16.8.1980 and a sum of Rs. 10,012/ - was due from the defendant on account of occupational charges of the aforesaid two rooms. The plaintiff sent a notice on 31.8.1979 to give vacant possession of the aforesaid rooms. Inspite of service of notice, the defendant did not vacate the rooms, on the other hand sent a reply to the notice with false and frivolous allegations and hence the plaintiff preferred the suit with a prayer that the vacant possession of the said two rooms be given to him and a decree for arrears of occupational charges be also passed against the defendant - respondent.

(3.) THE defendant 'sstand is that it is not a licensee rather it is a tenant having been inducted 25. years back on a daily rate of rent of Rs. 6/ - only per room. The mode of payment of rent was through the crossed cheque on the basis of monthly bills to be submitted by the plaintiff on the expiry of each English Calendar Month. The time, when the defendant was inducted as tenant in rooms no.2 and 3, the hotel was not in its present thriving state. After the termination of the second world war, as stated above, the hotel was struggling and there was a slump in the hotel business and as such the plaintiff wanted a tenant on a long term basis and as such the defendant was inducted as tenant in the two rooms and the defendant was not occupier thereof. It is further slated by the defendant that it is using the rooms for office purpose from the very beginning i.e. 1956 on a rate of rent inclusive of electricity and water charge which has remained static during the entire period. The hotel has not provided any furniture. The defendant has got their own furniture and telephone and there is no limit to the defendant 'sright to use electricity or water nor is there any instruction -sheet hung -up in the suit rooms. It is further stated that the rent up to month of August, 1979, was duly paid on the submission of the bill by the plaintiff -appellant. Thereafter, the plaintiff decided - to evict the defendant and served a notice on 31.8.1979 asking it to quit the suit premises by 30.9.1979, describing it as a licensee. After September, 1979, the plaintiff started submitting the bills fortnightly, though it was earlier sending the bills monthly, with a view to create evidence that the defendant is not monthly tenant. Again the plaintiff started sending the bills weekly. However, the defendant started making the payment of the bills monthly by cheque, which were refused by the plaintiff putting objection to the term 'rent ' used in the forwarding letters of the defendant - respondent. From 9.5.1980, the plaintiff started making demand of Rs. 35/ - per day for each room though there was no contract for enhancement of the rent between the parties. The existing law did not permit the plaintiff to increase the rent, which is in contravention of the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act (for short 'the Control Act '). When the plaintiff refused to accept the rent through cheque, the defendant started sending the rent by money order and as such there is no default in payment of rent.