HIMABHAI AMIN Vs. H D DAVE

JUDGEMENT

(1.) This is a second appeal on behalf of the defendant-tenant. A suit for eviction was filed against him from a house situate in the town of Jamshedpur on the ground of default in payment of the monthly rent for a period of over two months. The defence which has been pressed in support of this appeal set up by the appellant was that the original rate of rent of Rs. 60/- per month was enhanced to Rs. 70/- and which was illegal in view of Section 4 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947 (briefly 'the Act'). It is not disputed that even this increased amount of Rs. 10/- if adjusted towards the arrears in question, it would not satisfy the entire amount and the defendant would still be a defaulter for the statutory period of two months within the meaning of Section 11 (1) (d) of the Act. I do not therefore, find any substance in this contention.

(2.) Mr. J. C. Sinha, learned counsel appearing in support of this appeal, however, urged two other points in this Court; firstly that the suit being a simple suit for eviction, i. e. in which no arrears of rent having been claimed, the claim of arrears became barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure and were thug not lawfully payable. Learned counsel contended that the 'default' contemplated under Section 11 (1) (d) of the Act was "where the amount of two months' rent lawfully payable by the tenant and due from him, is in arrears ............" In support of this contention, he placed reliance upon a Bench decision of this Court in Seshadhar Das v. Harihar Prasad, (AIR 1973 Pat 361). Shambhu Prasad Singh, J. who delivered the judgment for the Bench, no doubt, had taken such a view, but this Bench decision has been expressly overruled in Ram Nandan Sharma v. Mt. Maya Devi, (AIR 1975 Pat 283) (FB). Chief Justice Untwalia, (now in Supreme Court) has also considered this portion of the judgment of S. P. Singh, J. at page 289 of the report. I would quote the relevant portion from that judgment:

(3.) The second contention raised by Mr. J. C. Sinha is that as the default in payment of rent complained of by the plaintiff was at the rate of Rs. 70/- per month, the claim itself was unlawful and unenforceable in law. In other words, no rent lawfully payable by the appellant being in default, the appellant was not bound to accede to the demand of vacating the premises or to pay the arrears. According to him, therefore, there was no foundation for the suit, that is alleged default in payment of two months' law-fully payable rent, was itself misconceived. This contention has also got no merit. It is not the case of the defendant that he ever tendered any rent at the rate of Rs. 60/- per month to the plaintiff, the rent which was certainly lawfully payable by him, being not by Section 4 of the Act expressly enjoins an obligation upon a tenant when a landlord refuses to accept any rent lawfully payable to him, in respect of any building, to remit such a rent and continue to remit all subsequent rents, which become due in respect thereof, by postal money orders to the landlord (sic). Keeping in view the scheme of Section 13, Clause (d) of Section 11 (1) of the Act advisedly provided that a tenant will be in default if he has ''not lawfully remitted or deposited in accordance with [Section 13" the rent of a premises.