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PETITIONER: GHANSHYAM DAS GUPTA

       Vs.

RESPONDENT: DEVI LAL AND OTHERS

DATE OF JUDGMENT08/02/1989

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) KANIA, M.H.

CITATION:  1989 SCR  (1) 552        1990 SCC  (1) 465  JT 1989 (1)   269        1989 SCALE  (1)335

ACT:     Bihar  Buildings (Lease, Rent and Eviction)  Act,  1947: Section 11(1)(d)--Default in payment of rent--For the period prior to the Act made applicable to the area--Whether tenant liable to be evicted on that ground.

HEADNOTE:     The  appellant was inducted as a tenant in the  building in  question under a document of lease. Since the  deed  was not executed in accordance with the requirements of law,  it remained  inoperative.  After  the lease  period  the  owner instituted  a suit for eviction of the appellant and  for  a decree for arrears of rent. During the pendency of the  suit the  provisions of the Bihar Rent Act were extended  to  the area,  and as such the prayer for withdrawal of  the  relief for  eviction was allowed with leave to file a  fresh  suit. However, decree for arrears of rent was passed. Thereafter a fresh  suit was filed. The Trial Court decreed the  suit  on both  the grounds of personal necessity and default in  pay- ment  of rent. On appeal the Subordinate Judge reversed  the finding on the question of bona fide personal necessity, but affirmed  the  decree  on the ground of  default.  The  High Court, on appeal maintained the decree.     The present appeal by special leave, is against the High Court’s judgment.     On  behalf of the appellant, it was contended that  non- payment of rent (when the Bihar Rent Act was not  applicable to the area) is not relevant and so it could not be  legiti- mately  made  the basis for the decree of eviction.  It  was submitted on behalf of the respondent that even  independent of  the  Bihar Rent Act the appellant was under  a  duty  to regularly pay the monthly rent and for the default, he  must be  presumed  to be made liable for eviction  under  Section 11(1)(d) of the Act. Allowing this appeal,     HELD:  1. There is no manner of doubt that the  Act  was applied to the area concerned on 14.2.1970 with  prospective effect. The ques- 553 tion  whether the Legislature intended to  include  previous default of the tenant in payment of rent within the  grounds for  eviction has to be answered by construing the  language

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of the relevant provisions in the Bihar Rent Act. [555C-D]     2.  Ordinarily where a tenant offers the rent  which  is refused  by the landlord without any justifiable reason  the tenant  is held to have fully performed his duty. Under  the Bihar Rent Act, however, the position is a little different. Even on the refusal by the landlord to accept rent  lawfully offered by the tenant, the tenant is under a further duty as mentioned  in  s. 13(1) to remit such rent by  postal  money order to the landlord. Where a bona fide doubt arises as  to the  person  who is entitled to receive rent the  tenant  is permitted by s. 13(2) to deposit the rent in the  prescribed manner. The latter part of s. 11(1)(d), quoted above,  deals with cases attracting s. 13. The result is that if a  tenant has made a proper offer to pay the rent and the landlord has unreasonably refused to accept it, the tenant cannot  escape the liability of eviction under clause (d) unless he  proves that he had further remitted the rent by postal money order. This position is fully settled. If the situation is analysed in this light it will be seen that clause (d) can be held to apply  only where s. 13 of the Bihar Rent Act is  attracted. If s. 13 cannot be applied to a particular situation, clause (d) also would not apply. Section 13 could not obviously  be applicable before the Act was extended to the area in  ques- tion. Consequently it must be held that the default for  the earlier period cannot be the basis for a decree of  eviction under s. 11(1)(d). [557G-H; 558A-C]     K.C.  Jain  v.B.S.  Grewal & Ors., [1965]  2  S.C.R.  36 distinguished.     3.  Since the question is dependent on an  appraisal  of the evidence led by the parties, the case should be remitted to  the first appellant court for the decision on the  ques- tion whether the landlord has proved the tenant’s default in payment  of rent for the period from December 1973 to  April 1974. If the Subordinate Judge comes to the conclusion  that the tenant did default within the meaning of s. 11(1)(d)  of the Act for two months or more during this period, he  would decree  the  suit; otherwise the suit  would  be  dismissed. [559B-C]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2984  of 1983.      From  the  Judgment and Order dated  19.5.1982  of  the Patna High Court in Appellate Decree No. 275 of 1981. 554 Govind Mukhoty and K.N. Rai for the Appellant. F.S. Nariman and Ranjit Kumar for the Respondents. The Judgment of the Court was delivered by     SHARMA,  J. The question which arises in this appeal  by special leave is whether the default by a tenant in  payment of  rent for the period before the Bihar  Buildings  (Lease, Rent and Eviction) Act, 1947 (hereinafter referred to as the Bihar Rent Act), was extended and became applicable, can  be the basis for holding him a defaulter within the meaning  of clause  (d)  of s. 11(1) of the Bihar Rent  Act,  1947  and, therefore, liable to be evicted.     2.  The  building in question is in  Danapur  Cantonment area near the town of Patna. The appellant was inducted as a tenant therein by the owner one Janki Devi under a  document of lease for a fixed period. Since the deed was not executed in  accordance  with  the requirements of  law  it  remained inoperative. After the period was over, Janki Devi institut- ed  a suit on 10.12.1968 for eviction of the  appellant  and

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for  a  decree  for arrears of rent for the  period  May  to August 1968, which was registered as Title Suit No. 3 17  of 1968. The Bihar Rent Act was not then applicable to  Danaput Cantonment. During the pendency of the case on 14.2.1970 the provisions of the Bihar Rent Act were extended to this area. Presumably in view of the fact that the lease deed could not be  treated  to  be valid in the eye of law,  a  prayer  for withdrawal of the relief for eviction was made by the plain- tiff  and  was allowed with leave to file a  fresh  suit.  A decree for arrears of rent, however, was passed.     3. The present suit was filed on 28.5.1974 for  eviction of  the  appellant  on the grounds of  bona  .fide  personal necessity and default in payment of rent for the periods May to July, October and November 1968, December 1969 to  Febru- ary  1970, and December 1973 to April 1974. The trial  court decreed  the  suit  on both the grounds. On  appeal  by  the appellant, the learned Subordinate Judge reversed the  find- ing  on  the question of bona fide  personal  necessity  but affirmed the decree on the ground of default. The High Court has by the impugned judgment maintained the decree.     4.  The  appellant  denied the allegation  that  he  has defaulted in payment of rent. The first appellate court on a consideration  of the evidence held that the  appellant  did default in payment of rent for 555 May,  June,  July, October and November 1968,  and  December 1969  to February 1970, and on that basis decreed the  suit. It  has been contended on behalf of the appellant that  non- payment  of rent for the period before 14.2.1970  (when  the Bihar Rent Act was not applicable to the Cantonment area) is not  relevant,  and since the rent of less than a  month  in February  1970 remained unpaid after the Bihar Rent Act  was extended,  it could not be legitimately made the  basis  for the  decree  of  eviction. The High Court  agreed  with  the appellant  that  the  Bihar Rent Act did not  apply  to  the Cantonment  area with retrospective effect,  but  proceeding further it said that in view of the decision in Kapur  Chand Jain v. B.S. Grewal and others, [1965] 2 SCR 36, it must  be held that the Act, although prospective in its  application, takes  into  account the default in payment of rent  of  the earlier period.     5. There is no manner of doubt that the Act was  applied to the area concerned on 14.2.1970 with prospective  effect. The  question  whether the Legislature intended  to  include previous default of the tenant in payment of rent within the grounds  for eviction has to be answered by  construing  the language  of the relevant provisions in the Bihar Rent  Act. Although in Kapur Chand’s case (supra) a similar dispute was raised,  it is not permissible to apply the  decision  irre- spective of the difference in language of the two  statutes. It is true that s. 9 of the Punjab Security of Land  Tenures Act, 1953 (hereinafter referred to as the Punjab Act)  which was  relevant  in  the reported case  also  dealt  with  the grounds for eviction of a tenant, but there was clear  indi- cation in the section that the grounds for eviction included the  earlier default also. The relevant portion of the  sec- tion, as quoted in the judgment, reads as follows:                         "9(1)    Notwithstanding    anything               contained in any other law for the time  being               in force, no land-owner shall be competent  to               eject a tenant except when such tenant:               (i)  is  a tenant on the area  reserved  under               this Act or is a tenant of a small  landowner;               or               (ii)  fails  to  pay  rent  regularly  without

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             sufficient cause; or               (iii)  is in arrears of rent at the  commence-               ment of this Act;               or               556                         Explanation--For  the  purposes   of               clause  (iii), a tenant shall be deemed to  be               in arrears of rent at the commencement of this               Act,  only  if the payment of arrears  is  not               made  by  the tenant within a  period  of  two               months  from the date of notice of the  execu-               tion of decree or order, directing him to  pay               such arrears of rent." It  will  be  seen that clause (iii)  in  unambiguous  terms refers  to  the arrears of rent for the  period  before  the commencement  of the Punjab Act. Dr. Y.S.  Chitale,  learned counsel  for  the landlord-Respondent,  contended  that  the judgment  of  this  Court rested on  the  interpretation  of clause  (ii)  of  s. 9(1) of the Punjab Act  which  did  not contain any words similar to those in clause (iii). Strongly relying on the following observation:               "In  our  opinion, the conduct of  the  tenant               prior  to  the coming into force  of  the  new               section can be taken into account. No doubt  a               statute  must be applied prospectively. But  a               statute is not applied retrospectively because               a  part  of the requisite for  its  action  is               drawn  from  a  moment of time  prior  to  its               passing.  The clause in question makes a  par-               ticular conduct the ground for an  application               for eviction." It was urged that the Bihar Act contained similar provisions and the ratio in Kapur Chand’s case is fully applicable.  In view of vital difference in the language of the two Acts, we do not find ourselves in a position to accept the argument.     6. Having regard to the scheme of the Punjab Act and the language  used  therein  specially the  words  mentioned  in clause  (iii)  of s. 9(1) it is apparent that the  Act  took into  consideration the earlier default in payment  of  rent within  the  grounds for eviction. There was no  dispute  in Kapur  Chand’s case about the construction of  the  section. The point which was raised before this Court was whether the past conduct of the tenant could be legitimately taken  into account by the statute which was prospective in application. And  this point was answered in favour of the  landlord.  In the case before us the appellant is not contending that  the past conduct of a tenant cannot be taken into account by the Legislature  if it so intends. The question is whether  such an  intention  can be spelled out from s.  11(1)(d)  of  the Bihar Rent Act which reads as follows: 557               "11. Eviction of tenants. (1)  Notwithstanding               anything  contained in any contract or law  to               the contrary but subject to the provisions  of               the Industrial Disputes Act, 1947 and to those               of section 12, where a tenant is in possession               of  any  building, he shall not be  liable  to               eviction  therefrom except in execution  of  a               decree  passed by the Court on one or more  of               the following grounds:               (d)  where  the  amount of  two  months’  rent               lawfully  payable by the tenant and  due  from               him  is  in arrears by not  having  been  paid               within  the time fixed by contract or, in  the               absence  of such contract, by the last day  of

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             the  month next following that for  which  the               rent is payable or by not having been  validly               remitted  or  deposited  in  accordance   with               section 13 ;"     7.  Dr.  Chitale  has streneously  contended  that  even independent of the Bihar Rent Act the tenant-appellant-  was under a duty to regularly pay the monthly rent by the corre- sponding  succeeding  month,  under the  provisions  of  the Transfer  of Property Act, and if he defaulted in  due  per- formance  of his duty he must be presumed to be made  liable for eviction by the Legislature while enacting s.  11(1)(d). He  emphasised that clause (d) was not saddling  the  tenant with a new duty which was not there earlier. The Act intends to  deprive the erring tenant negligent in payment  of  rent from its benefits and there is, therefore, no reason to hold that  his earlier conduct is not to be taken  into  account. The  argument  does not appear to be sound  inasmuch  as  it ignores  the following words towards the end of clause  (d), quoted above, which appear to us to be very illuminating: "... or by not having been validly remitted or deposited  in accordance with section 13;"     8.  Ordinarily where a tenant offers the rent  which  is refused  by the landlord without any justifiable reason  the tenant  is held to have fully performed his duty. Under  the Bihar Rent Act, however, the position is a little different. Even on the refusal by the landlord to accept rent  lawfully offered by the tenant, the tenant is under a further duty as mentioned  in  s. 13(1) to remit such rent by  postal  money order 558 to  the landlord. Where a bona fide doubt arises as  to  the person who is entitled to receive rent the tenant is permit- ted  by s. 13(2) to deposit the rent in the prescribed  man- ner.  The  latter part of s. 11(1)(d), quoted  above,  deals with cases attracting s. 13. The result is that if a  tenant has made a proper offer to pay the rent and the landlord has unreasonably refused to accept it, the tenant cannot  escape the liability of eviction under clause (d) unless he  proves that he had further remitted the rent by postal money order. This position is fully settled. If the situation is analysed in this light it will be seen that clause (d) can be held to apply  only where s. 13 of the Bihar Rent Act is  attracted. If s. 13 cannot be applied to a particular situation, clause (d)  also  would  not apply. S. 13 could  not  obviously  be applicable before the Act was extended to the area in  ques- tion. Consequently it must be held that the default for  the earlier period cannot be the basis for a decree of  eviction under s. 11(1)(d).     9.  Mr. F.S. Nariman, who also argued on behalf  of  the respondent, feebly suggested that the extension of the Bihar Rent Act to the Cantonment area may be held to be applicable with  retrospective effect in view of sub-sections  (2)  and (4)  of s. 3 of the Cantonments (Extension of  Rent  Control Laws)  Act, 1957. Dr. Chitale also referred to the  observa- tion  in paragraph 8 of the judgment in Smt. Sant  Kaur  and another  v.  Ganesh  Chaudhary, AIR 1949 Patna  137  on  the question of retrospectivity. We do not find any merit in the argument.  The language of the Bihar Rent Act is  clear  and does  not admit any doubt about its prospective  nature.  So far as s. 3 of the Cantonments Act is concerned, sub-section (2) merely permits the Central Government to extend any rent enactment  from an earlier date subject to  certain  limita- tions,  and  sub-section (4) is irrelevant  in  the  present context  as its scope is limited to dealing with orders  and decrees  passed  before  the extension of a rent  law  to  a

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Cantonment  area. When this was pointed out to Mr.  Nariman, he did not further pursue with his argument, and Dr. Chitale in express terms conceded that the Bihar Rent Act could  not be interpreted to have been extended to the Cantonment  area with retrospective effect. In that view, we need not  detain ourselves further on this point.     10.  Mr.  Nariman lastly urged that the  appellant  also defaulted  in  payment of rent for December  1973  to  April 1974, a period of five months, after the Act was applied  to the  cantonment  area, and the impugned  decree,  therefore, should  not be disturbed. On behalf of the appellant it  was suggested that in view of the finding in paragraph 12 of the judgment of the first appellate court it should be  presumed that the 559 respondents’  case of default for the subsequent period  was rejected.  We have been taken through the judgments  of  the first  appellate court and the High Court and we  find  that the controversy with respect to the alleged default for  the later period has been left undetermined. Since the  question is  dependent  on an appraisal of the evidence  led  by  the parties, we are of the view that the case should be remitted to  the first appellate court for the decision on the  ques- tion  whether the plaintiff-landlord has proved the  defend- ent-tenant’s  default  in  payment of rent  for  the  period December  1973  to April 1974. If  the  learned  Subordinate Judge  comes to the conclusion that the tenant  did  default within  the  meaning of s. 11(1)(d) of the  Bihar  Buildings (Lease, Rent and Eviction) Act, 1947 for two months or  more during this period, he would decree the suit; otherwise  the suit would be dismissed.     11. In the result, the appeal is allowed, the  judgments of  the  High Court and the first appellate  court  are  set aside and the case is remitted to the first appellate  court for  fresh  decision in the light of the  observations  made above. The costs shall follow the final result in the suit. G.N.                                            Appeal   al- lowed. 560