BIBHA RAY AND OTHERS Vs. HIRENDRA CHANDRA DUTTA

JUDGEMENT

(1.) The petitioners are the heirs and legal representatives having been substituted on the death of the original defendant and have moved this Court in its revisional jurisdiction against an order passed against them under Section 11A of the Bihar Buildings (Lease, Rent and Eviction Control Act (hereinafter referred to as the 'Act').

(2.) The plaintiff-opposite party filed a title suit on 2.1.1973 for the eviction of the original defendant from the suit premises on the ground of default in payment of rent and also for recovery of a sum of Rs. 750.00 as arrears of house rent, after having earlier determined the tenancy by serving a notice under Section 106 of the Transfer of Property Act. On 26.6.1973, the original defendant died and the present petitioners were substituted in his place and they filed a separate written statement. Immediately thereafter the plaintiff made an application under Section 11A of the Act for a direction to the petitioners to deposit the arrears of rent from September 1972 and the current and future rents at the rate of Rs. 250.00 per month. The petitioners in their re-joinder objected to the prayer of the plaintiff on the ground inter alia that there was no relationship of landlord and tenant between the parties. The rate of rent was also challenged. The learned Munsif by the impugned order allowed the prayer of the plaintiff and directed the petitioners to deposit arrears of rent by th 15th day of each following month at the rate of Rs, 250.00. While passing the impugned order the learned Munsif relied upon a petition filed under Section 20 of the Act by the petitioners themselves on 13.6.1973 in the Court of the House Controller for the prosecution of the plaintiff under the said provision in which they had admitted themselves to be the tenants under the plaintiff. The learned Munsif therefore, took the view that the defendants having admitted the relationship of landlord and tenant, were bound by the said admission and they were liable to suffer an order under Section 11A of the Act. The finding regarding the rate of rent is based upon certain cheques which were issued by the original defendant in favour of the plaintiff.

(3.) In this Court, relying upon the decision of Supreme Court in the case of J.C. Chatterjee and ors. vs. Shri Sri Kishan Tandon and another, 1972 AIR(SC) 2526, counsel for the petitioners contended that the tenancy of the original defendant having been terminated under the provision of section 106 of the Transfer of Property Act before the institution of the suit, the status of the original defendant became only that of a statutory tenant and the petitioners who were brought on the record as his heirs and legal representatives, could not become tenants, and as such there could be no direction against them under Section 11A of the Act, inasmuch as such a direction could be given to tenant. This contention cannot be disputed and is well supported by the decision of the Supreme Court. Mr. J.C.Sinha appearing for the plaintiff-opposite party however, contended that the petitioners themselves had been remitting rent at the rate of Rs. 125.00 per month to the plaintiff and, therefore, a fresh tenancy had come into existence between the plaintiff on the one hand and the petitioners on the other. Learned counsel, however, had to admit that none of the remittances made by the petitioners was accepted by the plaintiff. It is, therefore, obvious that in the absence of acceptance of any rent by the plaintiffs landlord sent by the defendants-petitioners, there was no attornment by them. It cannot be disputed that in the absence of an attornment by a landlord, there cannot be creation of any tenancy by him.