ARUN KUMAR AGARWAL Vs. GAURAV KRISHNA SAHAYA

JUDGEMENT

(1.) BOTH these Revision petitions have been heard together as they arise between the same parties and the same law points involved in both the Revision petitions.

(2.) THE petitioners in the Revision petitions are the defendants in Title Eviction Suit No. 17 of 1997 and Title Eviction Suit No. 18 of 1997 both pending before the Sub -Judge 4th at Patna. The opposite parties filed the abovementioned suits of eviction against the petitioners for their eviction from the suit premises described in the schedules of the plaints of both the suits on the grounds of defaulter, personal necessity and also for arrears of rent.

(3.) THE admitted position remains that in the suit premises in Title Eviction suit No. 17/1997 the petitioners were tenants paying rent at the rate of Rs.270/ - per month since the year 1991 -92. Previously rate of rent was low but the same was increased from time to time. For fixation of rent B.B.C. Case No. 49/1996 was filed by the opposite parties before the House Controller, Patna for fixation of fair rent and Rs. 1615/ - per month was fixed by the House Controller by order dated 7.10.1996 to be payable from 3.6.1996. Similarly the suit premises in Title Eviction Suit No.18 of 1997 the plaintiffs were the tenants paying rent at the rate of Rs. 910/ - per month and the proceeding for fixation of fair rent was filed by the Opposite parties in BBC Case No. 50 of 1996 and then rent was fixed at the rate of Rs. 2510/ - vide order dated 7.10.1996 to be payable from 3.6.1996. The suits were filed in year 1997 after the fixation of fair rent in both the premises. In both the suits a petition was filed under Section 15 of the B.B.C. Act for directing the defendants to pay arrears of rent as per fixation made by the House Controller and also for current and future rent at that rate till the disposal of the suit and in default for striking of the defence of the petitioners. Objections were raised to the effect that the fixation of fair rent was made behind the back of the petitioners and without their knowledge and as such, they cannot be bound by such fixation of fair rent and that they were paying the rent at the same rate which was last paid by them, and when refused to take then they were sending the same by money orders which were also received by the Opposite parties and, as such there remained no question of payment of arrears of rent or at the rate which has been fixed by the House Controller. Ultimately it could be found from the records and also on admission being made from the side of the petitioners that the proceedings before the House Controller were contested by the petitioners and practically in their presence the fixation order was passed and no appeal or revision had been preferred against such order rendering the same to be a finality in respect of rate of rent. Now the two questions have been involved in the present revision petitions as to (1) whether the last rent paid as contemplated under Section 15 of the B.B.C. Act shall be construed as the actual rent which has lastly been paid by the tenant or the rent which has been fixed as fair rent by the House Controller. (2) Whether the landlord has waived his right to claim rent at the rate of higher rate as fixed by the House Rent Controller when they have already accepted the last rent paid as per agreement between the parties. On the first point it was held by this Court earlier that when the fixation of fair rent has not been finalised then the actual rent which was last paid as per agreement between the parties would be the rate of rent to be paid for the purpose of Section 15. of the B.B.C. Act but then by the later judgment it has been held that when fixation of fair rent has reached the finality before the filing of the eviction suit and when the tenancy is admitted between the parties then the last rent paid should be the rent which has been fixed by the House Controller. The earlier full Bench decision was when the fixation of fair rent was made during the pendency of the eviction suit then it was held that for the purpose of Section 15 of the BBC Act the agreemental rent which was last paid by the tenant shall be the rate to be fixed by the Court for the purpose of Section 15 of the BBC Act but when the rate of rent had already been fixed and finalised by the House Controller before the filing of the eviction suit then the legal rate between the parties remains to be paid as per the fair rent fixed either it has been actually paid or not. There is provision in the B.B.C. Act for realisation of the fair rent fixed by the House Controller as contemplated under sections 23/11 (A) of the Act and it is the contention of the petitioners that when the agreemental rate of rent had been accepted by landlord then the only course remained open to the landlord was to proceed for realisation of the arrears as per proper provisions of the Act but cannot be imposed on the tenant by way of Section 15 of the B.B.C. Act. This point was considered by this Court in various judgments and those have been quoted by the learned Court below also in the impugned order. Last rent paid as appearing in Section 15 of the B.B.C. Act is the last legally payable rent by the tenant to the landlord. Legally payable rent is the rent which has been fixed by the House Controller before the filing of the eviction suit so before filing of the eviction suit the tenant was to pay and legally bound to pay the fair rent fixed by the House Controller. He cannot now go back to say that as he paid the agreemental rent and the same was accepted by the landlord the same should be construed as the last rent paid as Section 15 of the BBC Act. If that analogy construed to be correct then anomalous position would arise. On the one hand the landlord has a cause of action for going for eviction suit for non -payment of proper rent and also pray for arrear rent. On the other hand he shall have to proceed with another proceeding under Section 23 of the Act for realisation of the fair rent fixed by the House Controller. That would definitely make multiplicity of the suit which cannot be legally considered to be a plausible explanation/interpretation of the legal provisions. Section 15 of the BBC Act cannot be said to be an exclusive one besides other provisions regarding fixation of fair rent. If fair rent proceeding would have been proceeding during the pendency of the eviction suit then definitely before finalisation of such fair rent for the purpose of Section 15 of the BBC Act agreemental rent would have been construed the last rent paid. Thus I find that the learned Court below has not committed any error of law in holding that the petitioners are legally bound to pay the rent at the rate fixed by the House Controller from the date when it was to be paid and not the actual rent paid last as per agreement between the parties. Regarding second question of waiver the admitted position remains that when the rate at the last rent was tendered the same was refused by the landlord then it was sent by the Money -orders and the same has been accepted. According to the landlord the same was accepted on protest keeping alive his demand for arrears and the same has been stated on oath in the counter affidavit in these Revision petitions. Whether the principle of waiver would be available in the case or not is a vital question to be looked into. Estoppel and waiver stands on different footing. Waiver is a rule of evidence by which a person practically abandons his right. Waiver practically means that right abundanced has been made known to the adverse clearly not to insist upon the right. On the other hand estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and equity. When a person by his conduct has led any person to believe in a particular state of affairs he will be debarred from going back on it, as the same would be unjust and inequitable. Waiver or principle of estoppel cannot be against the statutory right. If a person has claimed higher amount but he accepts a lower amount giving an impression to the other side regarding abandonment of further then and then only waiver can play. In the present case it is the contention of the Opposite parties that they have received the lower amount on protest but the same has been objected to from the side of the petitioners that no protest was ever intimated to the petitioners. Such protest can be found even if not specifically mentioned while accepting the money -orders, from the very fact of the filing of the suit for eviction on the ground of defaulter and also for the purpose of arrear of rent. If the right had been waived then the question of filing of the suit did not arise for arrears of rent. Thus the principle of waiver has got no application in the facts and circumstances of the case. Regarding the principle of estoppel which is of much lesser degree than that of the principle of waiver can also not be applicable in the present case in the circumstances as stated above. On the agreemental rent the landlord was dissatisfied and, as such, he moved the House Controller and after contest the rate of rent was fixed and no appeal or revision has been preferred by the petitioners i.e. the tenant. When a person fights for his right then does not come any reason unless being specifically shown that he has abandoned his right and thus stopped from claiming his waived right.