PRABHU HALWAI Vs. FULCHAND KHANDELWAL

JUDGEMENT

(1.) The appellants, who are full brothers, are tenants of a building owned by the respondents. They were sued for eviction from a house and for arrears of rent by the respondents in September, 1959. The grounds of eviction, as given in the plaint, were two-fold, viz., (1) that the building was required for personal occupation of the landlords, and (2) that the defendants had defaulted in the payment of rent for more than two months. The rent of the building, according to the admitted case of the parties, was Rs. 15 per month originally. It was thereafter enhanced by the landlords to Rs. 51 per month. An application was made by the tenants before the House Controller. The House Controller, acting under the relevant provisions of Bihar Act III of 1947, determined the fair rent at Rs. 25 per month from the 11th September, 1954. This order was passed on the 25th May, 1957. There was an appeal against this order to the Deputy Commissioner who, by his order dated the 15th January, 1959, reduced the rent to Rs. 20 per month with effect from the same date, i. e., 11-9-1954. The courts below found that the tenants had defaulted, inasmuch as the deposit of Rs. 238 made by them on 1-8-1957 was invalid and, therefore, they granted a decree for eviction as also for arrears of rent The claim for eviction on the ground of personal occupation was, however, rejected. Then, the tenants i. e., the present appellants came up in Second Appeal No. 492 of 1962 to this court, and Ahmad J., who heard that appeal, confirmed the decree for arrears of rent but held that there was no default, inasmuch as Rs. 213, which was a part of Rs. 238 deposited subsequently with the House Controller, had been remitted in time towards the rent by a money-order to the respondents, because the tenancy was, according to the English calendar and not according to the Sambat Calendar, as contended by the landlords. His Lordship further held that on account of the tender or remittance of Rs. 213, there was no default up to the 19th June. 1957. But, as it was contended on behalf of the landlords that there had been several defaults on the part of the tenants in payment of the rent between June, 1957 and the date of the suit, viz., 11-9-1959, his Lordship sent back the case to the Court below for further consideration in regard to the claim of eviction on the ground of the alleged defaults after the 19th June. 1957. The judgment and decree of the court of appeal below were, therefore, set aside. His Lordship, however, made it clear that the other findings given by that court were affirmed.

(2.) After this remand, the court of appeal below found that there had been defaults for more than two months even after 19-6-1957, and a decree for eviction was granted under Section 11(1)(d) of the said Act. The tenants have, therefore, preferred the present second appeal. Mr. Ramnandan Sahai Sinha, who appeared for the appellants, challenged the judgment and decree of the court below on two grounds, viz.. (1) the claim for eviction is not maintainable in absence of a notice under Section 106 of the Transfer of Property Act, and (2) there was really no default on the part of the tenant even after 19-6-1957, in view of the fact that the rent had been reduced to Rs. 20 per month by the Deputy Commissioner with effect from 11-9-1954.

(3.) In support of the first ground. Mr. Sinha relied on a Full Bench decision of this court in Niranjan Pa! v. Chaitanyalal Ghosh, AIR 1964 Pat 401 (FB). It was held in this case, firstly, that where the plaintiff-landlord, did not determine the tenancy by giving a notice under Section 106 of the Transfer of Property Act his action for eviction under Section 11 of Bihar Act III of 1947 is premature; secondly, that it was for the plaintiff-landlord to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action, which he is required to give under Rule 1 of Order 7 of the Civil Procedure Code, and also to prove the fact; and, thirdly. in a case where the plaintiff had not taken this plea in the plaint, the tenant can urge the ground that the claim for eviction was premature, even at the second appellate stage.