Parwati Devi vs Sachchidanand Sah

When this civil revision application was placed for final hearing before a learned angle Judge of this Court, namely, L. M. Sharma, J., he directed by his order dated 27-7-1981 that the case be placed for hearing before a Division Bench. Thus, the case before us.

The application arises from the order dated 20th Sept., 1980 passed by the Munsif, 2nd Court, Monghyr, in Title Suit 2 of 1980. By that order, the petition u/s 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 (hereinafter called the ''1977 Act'') has been allowed at the instance of the landlord plaintiff. The defendant feeling aggrieved by that order has come up to this Court.

The only question involved in this case is as to whether on a true construction of Section 13 of 1977 Act in a case a tenant who has admittedly been inducted by the landlord, and has never paid any rent to him, the Court is powerless to pass any order for interim relief u/s 13 of the Act.

Shorn of all details, the opposite party, who was the sole plaintiff in the Court below, had filed the application u/s 13 against the tenant-petitioner who was the sole defendant in the Court below. As was stated at the Bar, admittedly, the mother of Parwati Devi, the petitioner, was the person who was inducted as the tenant by the opposite party landlord. She, however, never cared to pay any rent to the plaintiff opposite party. When an application u/s 13 of the Act was filed by the plaintiff opposite party, the Court below directed that as per the agreement between the parties the admitted rent was at the rate of Rs. 160/- per month and accordingly passed an order against the petitioner for depositing the arrears of rent as well as the current rent from month to month as contemplated by the provisions of Section 13. As is enjoined by Section 13, it was further directed, although no such direction was warranted under the law, since it was a statutory obligation, that in the event of failure on the part of the tenant-defendant to deposit the arrears as well as the current rent from month to month her defence against ejectment shall be struck out. Incidentally, it may be mentioned that before the institution of the suit the mother of the petitioner had presumably died and, therefore, the defendant in the suit, Parwati Devi, was sued as the tenant-defendant.

The contention put forth on behalf of the petitioner is that no order could be passed against her under the provisions of Section 13 of the Act as there was no rent "last paid" and that, therefore, the Court below had no jurisdiction to pass any such order. This at once brings us to the language of Section 13 which runs as follows :--

"If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment, the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant."

The moot question that arises for consideration is as to whether the Court below is powerless to grant any interim relief to the landlord during the pendency of the suit as against a defaulting tenant opposing the claim for ejectment in a situation, as in the instant case, where no rent had at all been paid at any time since the inception of the tenancy. The matter with regard to the true construction and import of the corresponding provisions in Section 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the ''1947 Act'') came up for consideration and it was before a Full Bench of this Court, of which one of us (S. K. Jha, J.) was a member. It is worthwhile to reproduce some extracts from that decision which will throw much light upon the question involved in this application. That decision of the Full Bench is reported in Ram Nandan Sharma and Another Vs. Mt. Maya Devi and Others, . While concurring fully with the judgment of Untwalia, C. J., S. K. Jha, J., observed thus in para 23 of the judgment-

"It is true that the Court which is to construe an Act of a legislature has to determine the intention as expressed by the words used and in order to understand those words it is material to enquire what the subject matter is with respect to which they are used, and the object in view. As was observed by Lord Davey in the case of Canada Sugar Refining Company v. R. 1898 AC 735 and quoted with approval by Subba Rao, J., (as he then was) in a decision of the Supreme Court in M. Pentiah and Others Vs. Muddala Veeramallappa and Others, at page 1111 :

''Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter.''

And for such a construction of the object of the particular statutory provision, the mischief sought to be remedied has to be ascertained. And, for this purpose it will have to be seen as to what was the law immediately before the insertion of Section 11-A in the Act by the Bihar Act 16 of 1955. As Maxwell says in his Interpretation of Statutes (12th Edition) at page 64 :

The course which legislation on a particular point has followed often provides as indication as to how the Act at present in force should be interpreted.''

The provisions of law engrafted in Section 11 before the Amending Act of 1955 will also have to be taken into consideration in this context. Section 11 as it stood before the amendment of 1955 conferred a power on the Controller in very sweeping terms. It had entrusted the Controller with the jurisdiction including the jurisdiction to determine whether there was non-payment of rent or not as well as the jurisdiction to order eviction of a tenant on a finding that there was nonpayment of rent. Even if the Controller had wrongly decided the question regarding the non-payment of rent, his order for eviction on the ground that there had been nonpayment of rent could not be questioned in a Civil Court. ( Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, ). The application for eviction of tenants u/s 11 of the Act as it stood before the amendment had to be made before the Controller on any of the grounds mentioned therein and the Controller''s decision was not subject to review by the Civil Courts. The whole proceeding before the Controller was more or less of a summary nature, the disposal of which ordinarily and generally was not likely to consume even a small fraction of the time taken by competent Civil Courts for disposal of suits in the ordinary way. The Legislature had not, therefore, thought it fit at that time to provide for any interim relief to the landlord. As has been observed by the learned Chief Justice, the Bihar Act 16 of 1955 brought about a radical change in the scheme of Section 11. After the amendment actions for eviction of tenants have to be brought in the ordinary Civil Courts and the tenant is not liable to eviction except in execution of a decree passed by the Court on one or more of the grounds mentioned in Section 11. Since such a litigation was in the very nature of things contemplated to be a rather protracted one, it would have been too harsh upon the landlord-plaintiff who sought to evict his tenant to remain deprived of his rent for all the period during which the action at law continued. Section 11-A was accordingly inserted in the statute book laying down that the tenant contesting the suit regarding claim for ejectment shall, if the Court on an application made by the landlord orders for deposit of rent at such rate as may be determined by the Court month by month and the arrears of rent. The failure to deposit such arrears or rent month by month put the tenant-defendant to the jeopardy of his defence being struck out, but not relieving him of his liability to be finally evicted either for default in payment of rent within the meaning of Section 11 (1) (d) or any of the other grounds mentioned in that section."

and in paragraph 24-

"It is in my view plain that the subject-matter of Section 11-A was the right or privilege theretofore not enjoyed by the landlord except by way of a protracted litigation for recovery of damages for use and occupation. It is equally clear that the object of Section 11-A was to confer on the landlord a right to enjoy the income of his building by a summary adjudication u/s 11-A while the course of litigation took its own time. And, as observed by Craies on Statute Law (7th Edition) at page 117 :

In cases of doubt, Courts will lean to a construction that an enactment is not intended to impose a serious new obligation, but only to provide new or better means of enforcing the existing obligation.

Section 11-A imposes a new obligation on the tenant if he chooses to contest the claim for ejectment ....."

It automatically flows from the Full Bench decision aforementioned that Section 11-A of the 1947 Act which has been substituted in the 1977 Act is a beneficial piece of legislation for granting an interim equitable relief to the landlord instituting a suit for eviction in case of default and imposes an obligation on the part of a defaulting tenant if he contests the suit for eviction to make payment of rent to the landlord all the time during which the suit is pending. It will, therefore, be too harsh upon the landlord and will cause absurd inconvenience and palpable injustice if a defaulting tenant, who has never paid any rent, seeks the protection under the garb of law within the provisions of Section 13 of the 1977 Act to say that since he/she has not made any payment at any time whatsoever, he/she is immune for the operation of Section 13. It is worthwhile to quote below the language of Craies on Statute Law (7th Edition) at page 87-

"If too literal adherence to the words of the enactment appears to produce an absurdity or an injustice, it will be the duty of a Court of construction to consider the State of the law at the time the Act was passed, with a view to ascertaining whether the language of the enactment is capable of any other fair interpretation, or where it may not be desirable to put upon the language used a secondary, or restricted meaning, or perhaps to adopt a construction not quite strictly grammatical."

Decisions are legion on the point that where a strict legal adherence to the grammatical meaning of a term or phrase used in a statute results in manifest injustice and absurd inconvenience, the language has to be construed by a Court of law to avoid the mischief which the statutory provision was inserted for stopping or undoing. There can, thus, be no doubt that where the statute speaks of the rent last paid in Section 13 of the 1977 Act, it means the rent last paid or agreed to be paid between the contracting parties, namely, the landlord and the tenant. Taking any other view of the matter is bound to result in an absurd inconvenience, let apart palpable injustice. The reason can very well be explained by giving an illustration. Supposing A, a landlord, leases out the leasehold property on a monthly rent to B, the tenant. B goes on paying the rent for 10 years and thereafter he defaults in making the payment for 2 months. A brings a suit for eviction u/s 11 (1) (d) of the 1947 Act or Section 12 of the 1977 Act. The Court, in such circumstances, shall have to make an order in terms of the statutory provisions directing B to deposit the arrears of rent having accrued due during the pendency of the suit and current rent from month to month till termination of the suit one way or the other. On the contrary, B, the tenant, having remained in occupation of the house, say, for 5 years without making any payment of rent to the landlord on account of the complaisance or whatever other reasons there may be on the part of A, can it be imagined that the Court is powerless to pass an order in favour of the landlord who has not received a single paisa by way of rent since the inception of the tenancy ? The answer, in our view, is clearly in the negative. The law cannot be interpreted as being harsher towards a tenant who had been paying rent in the past but has defaulted in the payment of 2 months'' rent than a tenant who has never been paying rent for years together and yet claiming Immunity for the obligation imposed upon him by Section 13 of the Act.

Learned counsel for the petitioner invited our attention to an observation of a 5 Judges Full Bench decision of this Court in the case of N.M. Verma Vs. Upendra Narain Singh, wherein two of the learned Judges had dissented, namely, S. S. Ali, J. (as he then was) and Shambhu Prasad Singh, J., whereas the remaining 3 Judges concurred. Before referring to the observation which has been relied upon, it would be desirable to narrate shortly the facts and the point of law referred to the Full Bench. The facts of that case were that the landlord had filed a suit for eviction on the ground of default in payment of rent. During the pendency of the suit, he filed an application u/s 11-A of the Act of 1947. The tenant defendant who was the petitioner in that case was inducted as a tenant by the landlord originally on a monthly rental of Rs. 160/-. The rent was enhanced several times and since April, 1970 it had been paid at the rate of Rs. 200/- per month. When the application u/s 11-A of the 1947 Act came up for consideration before the Court, the submission made on behalf of the tenant defendant was that he was not obliged to pay the rent at the rate of Rupees 200/- per month since the landlord had no power to enhance the rent without taking recourse to the provisions of Section 8 of the 1947 Act. The enhancement, which, according to the tenant defendant, was illegal, was not lawfully payable by him. The question that came up for consideration before the Full Bench was as to whether the rent at the rate last paid would mean the factual payment of rent or rent legally payable and the majority decision was that since the section spoke of the rent at the rate last paid, it had to be deposited. That could not be departed from on the ground of any illegality on the part of the landlord to enhance the rent. In this context, it was observed by L. M. Sharma, J., in that case that there seemed to be a lacuna in Section 11-A of the 1947 corresponding to Section 13 of the 1977 Act in so far as there was no provision with regard to the payment of rent during the pendency of the suit by a tenant defendant, where there had never been made any payment. We do not think this point was at all relevant to be considered in that case. At best, it is merely a stray observation while dealing with the main question of law involved in that Full Bench case. The observation relied upon by learned counsel is to be found in para 10 of that judgment, the relevant portion of which reads thus-

"It was contended on behalf of the petitioner that a literal interpretation of the language of Section 11-A of the Act should be rejected, as it will lead to undesirable results in two cases, namely, (i) where after the commencement of tenancy no payment of rent has been ever made and (ii) in a case where fair rent has been fixed under the provisions of the Act at a rate different than that at which rent had been last paid. There does appear to be a lacuna in the section inasmuch as it does not make provisions for these cases, but it must be the concern of the legislature to make appropriate amendments and not for a Court of law to discharge the legislative functions, in the garb of interpreting the section. At the same time, it must also be pointed out that the consequence of the literal interpretation does not affect any party very seriously. In a case where the tenant has never paid the rent at all, the landlord can realise the same by getting a decree in a properly constituted suit for the purpose ....."

This point did not fall for consideration before the Full Bench and, as we have pointed out earlier, too literal an adherence to the language of Section 13 of the 1977 Act, on the facts and in the circumstances of the case, would lead to an absurd inconvenience and palpable injustice. It could never have been the intention of the Legislature. We are, therefore, not legislating but merely construing the provisions of Section 13 as was envisaged by the Legislature in inserting that section for the benefit of the landlord.

Learned counsel for the opposite party placed reliance on the decision of a learned single Judge, namely, H. L. Agrawal, J., in the case of Fakir Ram Vs. Sukhdeo Sao and Another, wherein it has been held that where no payment of rent has been made from inception of tenancy, it cannot be said (hat no order for payment of such rent would be passed u/s 11-A. Such a construction of the section will go against the very intention of the provision itself and will give undue advantage to an erring tenant. In such case, the Court holding the enquiry u/s 11-A would proceed to enquire as to what was the agreed rate of rent payable for the premises in question. That would furnish the basis for an order under the section. We respectfully endorse and approve all that has been said by H. L. Agrawal, J., in the decision aforementioned.

In the result, this application is dismissed but in the circumstances of the case there shall be no order as to cost.

Before parting with the case, it is noteworthy to mention one thing. On November 5, 1980 when a rule nisi was issued in this case, N. P. Singh, J., passed an order in the following terms:--

"The petitioner should deposit the rent as directed by the learned Munsif otherwise if this application is dismissed at the stage of the final hearing, the consequences provided by Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1977 shall follow."

Since the application has now been dismissed, the defence of the petitioner as against ejectment automatically stands struck out.