Bali Ram Prasad Gupta v. Md. Isa Opposite Party.

1. Can an order, passed by the High Court, in a revision under section 151 of the Code of Civil Procedure (in short, ‘the Code’), against an order, which a trial court had passed during the course of the progress of a trial, operate as res judicata as regards the question, which the High Court decides in such a revision? Is it legally permissible for a court to extend the period of filing of written statement, in a civil suit, beyond the period of 90 days from the date of service of summons on the defendant and, if so, under what conditions, such an extension of time can be allowed? Can a mere collector of rent be regarded, within the meaning of the definition of ‘landlord’ as given in section 2(c) of the Assam Urban Areas Rent Control Act, 1972 (in short, ‘the Act’), a ‘landlord’ for the purpose of enabling such a collector of rent to institute a suit, in his own name, for recovery of arrear rent and/or for eviction of a tenant from the tenanted premises if the tenanted premises have been let out to the tenant, not by the collector of the rent, but by a person, on whose behalf, the rent is so collected and, if so, is there any exception to this general rule? These are some of the prominent questions, which have arisen for determination, in the present revision, wherein stands challenged the judgment and decree, dated 11.10.2004, passed by the learned Civil Judge (Senior Division) No. II, Tinsukia, in Title Appeal No. 12/2003, dismissing the appeal and upholding, in effect, the judgment and decree, dated 4.8.2003, passed by the learned Civil Judge (Junior Division) No. II, Tinsukia, in Title Suit No. 7/2002, whereby the plaintiff's suit for, inter alia, eviction of the defendant and arrear rents was decreed.

2. Before dealing with the merit of the revision, let me set out the material facts and stages, which have led to the present revision. The plaintiff-opposite party instituted the Title Suit No. 7/2002 aforementioned seeking, inter alia, a decree for eviction of the defendant from the suit premises by removing the defendant therefrom, recovery of rents, etc., the case of the plaintiff being, in brief, thus: One Md. Basir is the owner of the suit premises, which consists of four rooms. A deed of agreement was executed, on 1.1.1979, between Md. Basir, as landlord, and the defendant, as tenant. In terms of this agreement, the defendant came into occupation of the suit premises, as a monthly tenant of the said Md. Basir, undertaking to pay rent at the rate of Rs. 70 per month, the rent being payable, in advance, within 10th day of each current month, according to English calendar, and a sum of Rs. 100 was also to be paid per month as collection charge for the rent, the monthly rent being payable at the address of the landlord, the address being 75, Aliet Road, Calcutta, or to his authorized representative. The agreement between the parties stipulated enhancement of rent, after a period of three years, by a sum of Rs. 15 per month, the defendant being entitled to repair the tenanted premises at his own expenses. Though the defendant paid the enhanced rent on and from January 1988, the defendant failed and neglected to pay, despite repeated reminders, rents from the month of December 1999. This apart, the defendant also made alteration and addition to the suit premises, which were illegal.

3. Pursuant to the summons received by him, the defendant appeared in the suit through his appointed counsel. Though the defendant filed his written statement, the learned trial court rejected, on 21.3.2003, the defendant's prayer for accepting the written statement, the refusal to accept the written statement being on the ground that the period of 90 days, prescribed under order VIII, rule 1 of the Code, had expired. The defendant; then, came to this court by filing a revision under section 115 of the Code, this revision having given rise to C.R.P No. 126 of 2003. By judgment and order, dated 13.5.2003, the High Court dismissed the revision and upheld the order of the trial court. Aggrieved by the order, dated 13.5.2003, passed in the revision, the defendant carried the matter, by way of a Special Leave Petition, to the Supreme Court. Following, however, the refusal of the trial court to accept the written statement filed by the defendant, the suit proceeded and came to be decreed, on 4.8.2003, in favour of the plaintiff. During the hearing of the suit, the plaintiff reiterated the statements made in the plaint. The plaintiff also filed, in the suit, a copy of the general power of attorney executed by Md. Basir, on 4.1.1992, at Kolkata, in favour of the plaintiff. The plaintiff also exhibited a copy of the agreement of tenancy executed, on 1.1.1979, between Md. Basir and the defendant in respect of the suit premises. Before the Special Leave Petition could be taken up by the Supreme Court, the suit, thus, stood decreed in favour of the plaintiff. By an order, dated 1.9.2003, the Supreme Court dismissed the said Special Leave petition, but made an observation that it would be open to the defendant to urge in appeal, against the decree, the ground that his written statement ought to have been accepted by the learned trial court.

4. Aggrieved by the decree of eviction granted in the suit, the defendant preferred an appeal, which gave rise to Title Appeal No. 1 of 2003 aforementioned. By judgment and order, dated 1.10.2004, the learned appellate court dismissed the appeal as regards the eviction of the defendant from the suit premises, but modified the decree so far as the cost of the suit was concerned. Feeling still aggrieved, the defendant is, now, before this court with the help of the present revision.

5. I have heard Mr. C.K Sarma Baruah, learned senior counsel, appearing on behalf of the defendant-petitioner, and Mr. G.N Sahewala, learned senior counsel, for the plaintiff-opposite party.

6. Appearing on behalf of the defendant-petitioner, Mr. C.K Sarma Baruah has submitted that the learned trial court had no good reason to disallow the defendant's prayer for accepting his written statement inasmuch as there were justified reasons for filing the written statement beyond the period of 90 days from the date of receipt of the summons by the defendant. The learned trial court, points out Mr. Sarma Baruah, rejected the prayer made for accepting the written statement without proper application of mind and on a wholly textual interpretation of the law contained in that behalf. When the order refusing to accept the written statement was challenged in revision, this court too, contends Mr. Sarma Baruah, went by a textual interpretation of the provisions of order VIII, rule 1 and order 8, rule 10 of the Code and upheld the order passed by the learned trial court, whereby the learned trial court had refused to accept the written statement. When the matter was carried to the Supreme Court, further points out Mr. Sarma Baruah, the Supreme Court made it clear that it would remain open for the appellate court to look into the question as to whether the order, refusing to accept written statement, was legally sustainable. In such circumstances, contends Mr. Sarma Baruah, the appellate court ought to have examined the question as to whether rejection of the defendant's prayer for accepting his written statement was sustainable in law. No such exercise, complains Mr. Sarma Baruah, was undertaken by the learned trial court, though the Supreme Court, points out Mr. Sarma Baruah, has clearly explained, in Salem Advocates' Bar Association, Tamilnddu v. Union of India, (2005) 6 SCC 344, and Kailas v. Nankhu, (2005) 4 SCC 480, that the period of 90 days fixed by order VIII, rule 1 read with rule 10 thereof is merely apart of the procedural law and, in deserving cases, a court is entitled to accept written statement beyond the prescribed period of 90 days. The failure, on the part of the learned appellate court, to address this aspect of appeal is, according to Mr. Sarma Baruah, a serious infirmity in its judgment and, hence, the appellate judgment and decree, submits Mr. Sarma Baruah, deserve to be interfered with by this court in revision.

7. Assailing further the impugned judgment and decree, Mr. Sarma Baruah has submitted that in the case at hand, though the agreement of tenancy was between the defendant, as the ‘tenant’, and Md. Basir, as the ‘landlord’ the suit was filed not by the ‘landlord’, Md. Basir, but by one Md. Isa, who is a constituted attorney of the ‘landlord’, namely, Md. Basir. An attorney, such as, Md. Isa, cannot, contends Mr. Sarma Baruah, be regarded, in the context of the facts and circumstances of the present case, as the landlord of the defendant, though, agrees Mr. Sarma Baruah, the definition of landlord under the Act, is an expansive definition and covers anyone, who may be receiving rent from a tenant.

8. Contending that the impugned decree is not sustainable in law, Mr. Sarma Baruah has also submitted that in the case at hand, the due date of payment of rent and mode of payment of rent were not proved and, in such circumstances, the defendant could not have been held to be a defaulter and his eviction could not have been ordered. In fact, in the present case, submits Mr. Sarma Baruah, learned trial court has declared title of the plaintiff as owner of the suit premises, which is far beyond the ambit of the Act and on mere declaration of this kind of title, defendant's eviction from the suit property was impermissible in law.

9. Controverting the submissions made on behalf of the defendant petitioner, Mr. G.N Sahewala contends that notwithstanding the fact that a court may, in the light of the decisions of the Apex Court, in Salem Advocates' Bar Association (supra) and Kailash (supra), accept, in exceptional circumstances, a written statement, which is filed beyond the period of 90 days from the date of service of summons on the defendant, the fact remains, contends Mr. Sahewala, that the order, dated 13.5.2003, which was passed by the High Court, in Civil Revision Petition No. 126 of 2003, was not set aside by the Apex Court and, hence, this order, whereby the learned trial court's decision not to accept the written statement was upheld, operates as res judicata. In such circumstances, it was not open to the learned court below, contends Mr. Sahewala, to reopen and reconsider the question as to whether the defendant's written statement should or should not have been accepted beyond the period of 90 days. In support of his submission that an order passed even in revision, if allowed to attain finality, operates as res judicata, Mr. Sahewala places reliance on (1969) 2 SCC 74 : AIR 1970 SC 1 (Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat), AIR 1960 SC 941 (Satyadhyan Ghosal v. Deorjin Debi) and AIR 1974 (Pat.) 153 (Ramsarup Dass v. Pyare Das).

10. Apart from the fact, submits Mr. Sahewala, that the order, dated 13.3.2005, which was passed in revision, operated as res judicata, the various orders, passed by the learned trial court, in the suit, amply prove that the defendant had completely neglected to file his written statement within the prescribed period and, hence, no such circumstances existed, which could have been considered as a circumstance justifying delay in filing of the written statement. In such a situation, the learned trial court, according to Mr. Sahewala, was wholly justified in not accepting the written statement beyond the prescribed period of 90 days.

11. Turning to the submission, made on behalf of the defendant-petitioner, that the plaintiff, in the present case, is not the ‘landlord’ and could not have, therefore, instituted the suit for eviction of the defendant, as his ‘tenant’ Mr. Sahewala, drawing attention of this court to the definition of the word “landlord” which occurs in section 2(c) of the Act, submits that this definition makes it more than abundantly clear that a person, who collects rent, is the ‘landlord’ even if the rent is collected by such a person on behalf of some other person. In the present case, since it was the plaintiff, who used to collect the rents from the defendant, the plaintiff was, according to Mr. Sahewala, the ‘landlord’ for the defendant and there was no legal impediment in his instituting a suit for eviction of the defendant as a tenant, when the defendant was a defaulter for having not paid due rents. Support for his submission that the person, who receives rent, shall be regarded as a ‘landlord’ Mr. Sahewala seeks to derive support from the decisions, in Kasturchand v. Raman Ranjan, AIR 1994, SC 217, Arun Chandra Sarma v. Janardhan Prasad Verma, 1989 (2) GLJ 502, and Pukhraj Jain v. MIS Padma Kashyap, (1990) 2 SCC 431 : AIR 1990 SC 1133.

12. Mr. Sahewala also submits that in the case at hand, in terms of the agreement, which had been entered into by the defendant with Md. Basir (i.e, the owner of the property), the rent was payable, in advance, by 10th day of each English calendar month. In such circumstances, contends Mr. Sahewala, it cannot, now, be contended, on behalf of the defendant, that the due date of payment of rent was not stipulated in the agreement. It is also submitted by Mr. Sahewala that as an attorney, the plaintiff had been receiving rents within the stipulated period and, hence, in such a situation, the submissions, now, made on behalf of the defendant, that the mode of payment of rents and due date of payment of rents were not proved by evidence on record is wholly incorrect, particularly, when there is no evidence on record to show that the plaintiff made payment of rent beyond the month of December 1999.

13. Reacting to the submissions made on behalf of the plaintiff-opposite party, Mr. C.K Sarma Baruah has pointed out that a careful reading of section 2, which defines, inter alia, a landlord, shows that the definition of the various words contained therein, such as, the definition of landlord, will be applicable ‘unless there is anything repugnant in the subject or context. The expression, “unless there is anything repugnant in the subject or context” is, according to Mr. Sarma Baruah, of great significance, for, the expression” unless there is anything in the subject or context’ shows, contends Mr. Sarma Baruah, that in a given case, a court may, in the light of the facts of the case, hold that though a person receives rent, he can still not be regarded as a ‘landlord’. In the case at hand, points out Mr. Sarma Baruah, the agreement of tenancy was between Md. Basir and the defendant, the present plaintiff was not privy to the said agreement of tenancy and his authority to collect rent is not derived independent of this agreement and when there was no agreement between the present plaintiff and the defendant, the plaintiff, in the facts and circumstances of the present case, could not have been legally regarded as the ‘landlord’ and no suit for eviction of the defendant could have been legally instituted by the present plaintiff as the ‘landlord’ for, insists Mr. Sarma Baruah, the right to seek eviction of a person from tenanted premises on the ground that such a person has become a defaulter is available to a ‘landlord’ and not to everyone. In the case at hand, therefore, the plaintiff, reiterates Mr. Sarma Baruah, not being a ‘landlord’, was incompetent to institute and maintain a suit for eviction of the defendant and the learned courts below committed serious error of law in decreeing such a suit or in upholding such a decree.

14. Let me, now, deal with the merit of the rival submissions made before me on behalf of the parties.

15. While considering the question as to whether an order passed by a High Court, in exercise of its revisional jurisdiction under section 115 of the Code, would operate as res judicita, what needs to be noted is that the doctrine of res judicata is a doctrine arising out of necessity to give finality to a judicial decision. When a matter, in issue, become res judicata, the effect is that the issue cannot be agitated again, for, the matter, in issue, in such a case, is treated to have been finally decided between the parties. Delineating the meaning, object and effect of the doctrine of res judicata, the Apex Court, in Satyadhyan Ghosal v. Sm. Deorajin Debi, AIR 1960 SC 941, observed,

“7. The principle of res judicata is based on the need of giving a finality of judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or an a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in section 11 of the Code of Civil Procedure; but even where section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct”

(emphasis is supplied)

15A. Coupled with the above, what is also necessary to note is that a decision, in order to operate as res judicata, need not be correct (see Abhay Kanta v. Gopinath Deb, AIR (30) 1943 Cal 460, Mohanlal v. Benoy Krishna, AIR 1953 SC 65. Even a decision, which is demonstratively wrong, can operate as res judicata if the decision is allowed to attain finality, (see Hope Plantation Ltd. v. Taluk Land Board, (1999) 5 SCC 590.

16. Now, turning to the question as to whether an order, passed by the High Court, under section 115 of the Code, operates as res judicata, it is important to bear in mind that section 115 of the Code empowers the High Court to call for the record of any case, which has been decided by any court subordinate to it and in which no appeal lies to it. In exercise of its powers under section 115, the High Court can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or if the subordinate court appears to have failed to exercise the jurisdiction vested in it or if the subordinate court appears to have acted, in the exercise of its jurisdiction, illegally or with material illegality. If the revisional jurisdiction is invoked, both parties are heard and an order is made. Whether, in such a case, the order of the subordinate court can be treated to have merged in the order of the High Court is the question. If the order of the subordinate court is treated to have merged in the order of the High Court, then, the order of the subordinate court cannot be challenged or attacked, in appeal, against a decree passed in the suit or by instituting another set of proceedings, in the High Court, by means of a petition under article 226 or 227 of the Constitution. It is only if, by dismissal of the revision petition, the order of the subordinate court has not got merged into the order of the High Court that it may remain open to a party to agitate the issue, again, in appeal or revision or by way of invoking the extraordinary writ jurisdiction of the High Court. For instance, when the revision is not decided on merit but dismissed in limini or as not maintainable.

17. What is, now, of immense importance to note is that though section 115 of the Code circumscribes the limits of the revisional jurisdiction, the fact remains that the revisional jurisdiction, which the High Court exercises, is really a part of general appellate jurisdiction of the High Court as a superior court. The revisional jurisdiction is, thus, one of the modes of the exercise of the powers conferred by the statute, though basically and fundamentally, it remains the appellate jurisdiction of the High Court. Viewed thus, it is clear that when an order is passed by the High Court in exercise of its revisional jurisdiction, the parties would remain bound by such an order and they cannot be allowed to agitate the same issue in appeal, when an appeal arise against the decree passed in the suit. In short, during the progress of a suit, when an order made by a trial court is challenged by invoking the revisional jurisdiction of the High Court and the High Court decides such a matter on merit, the decision, though given in revision by the High Court, would nevertheless be binding on both the parties and the parties shall not be allowed to agitate, once again, the very question, which had already been raised before, and decided by, the revisional Court.

18. I am guided to adopt the above views from the decision in Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, (1969) 2 SCC 74 : (AIR 1970 SC 1), wherein the Apex Court observed and held as under:

“3. Now as is well known section 115 of the Civil Procedure Code empowers the High Court to call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies to it. It can interfere if the subordinate court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material illegality. The limits of the jurisdiction of the High Court under this section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the order of the subordinate court has become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of the subordinate court cannot be challenged or attacked by another set of proceedings in the High Court, namely, by means of a petition under article 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the subordinate court has not become merged in that of the High Court that it may be open to a party to invoke the extraordinary writ jurisdiction of that court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a subordinate court in a writ petition when a petition for revision under section 115 CPC, against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under article 226 or 227.”

5. It would appear that their Lordships of the Privy Council regarded the revisional jurisdiction to be a part and parcel of the appellate jurisdiction of the High Court. This is what was said in Nagendra Nath Dey v. Suresh Chandra Dey, 59 IA 283, 287.

“There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term……….”

Similarly in Raja of Remnad v. Kamid Rowthen, 53 IA 74, a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full Bench of the Madras High Court in P.P.P Chidambara Nadar v. C.P.A Rama Nadar, AIR 1937 Mad. 385, had to decide whether with reference to article 182(2) of the Limitation Act 1908, the term “appeal” was used in a restrictive sense so as to exclude revision petitions and the expression “appellate court” was to be confined to a court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the full Bench expressed the view that article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that terms as used in the Civil Procedure Code. In Secretary of State for India in Council v. British India Steam Navigation Company (13 CLJ 90), an order passed by the High Court in exercise of its revisional jurisdiction under section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning of section 39 of the Latters Patent Mookerji, J, who delivered the judgment of the division Bench referred to the observations of Lord Westbury in Attorney General v. Sillem ((1864) 10 RLC 704), and of Subramania Awar, J, in Chappan v. Moidin ((1958) ILR Mad. 68, 80), on the true nature of the right of appeal. Such a right was one of entering a superior court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to article 1762 the most usual modes of exercising appellate jurisdiction at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury.

6. Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior court and it can interfere for the purpose of rectifying the error of the court below. section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior court. It is only one of the modes of exercising power conferred by the statue; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not, therefore, consider that the principle of merger of orders of inferior courts in those of superior courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal.”

19. What emerges from the above discussion is that during the course of a suit, when an order made by a trial court is challenged by invoking the revisional jurisdiction of the High Court and the High Court decides such a matter on merit, the decision, though given in revision by the High Court, would nevertheless be binding on both the parties and the parties shall not be allowed to agitate, once again, the very question, which had already been raised before, and decided by, the revisional court.

20. Bearing in mind what has been indicated above, when I turn to the case at hand, what I notice is that against the revisional order, dated 13.5.2003, passed by this court, in CRP 126 of 2003, the petitioner herein carried the matter to the Supreme Court by way of special leave to appeal, which gave rise to SLP (Civil) No. 13508/2003. By order, dated 1.9.2003, the petition for special leave to appeal was dismissed; but while dismissing the petition for special leave, the Apex Court observed and held as follows:

“Learned counsel for the petitioner states that the suit is already decreed. He further submitted in case appeal is filed against the decree, the impugned judgment will come in the way of urging the ground sought to be urged in this petition.

We find no merit in this special leave petition. It is accordingly dismissed.

However, it is open to the petitioner to urge the ground in the appeal against decree, if filed, which ground is sought to be urged before this court in this special leave petition.”

(emphasis is supplied).

21. From what has been observed and directed above, it is clear that the Apex Court had left it open to the petitioner to urge, in appeal, against the decree, the ground that his written statement ought to have been accepted by the trial court. Because of the liberty, so granted, the revisional order, dated 13.5.2003, aforementioned remained open for challenge, in appeal, by the present petitioner as the judgment-debtor. I have, in the presence of the learned counsel for the parties, carefully gone through the memorandum of appeal and also the appellate judgment; but I find that the petitioner did not urge before the learned appellate court that his written statement ought to have been accepted by the learned trial court. Having chosen not to agitate the matter before the learned appellate court, the petitioner cannot, now, urge the same ground before this court, in revision, against the decree.

22. Notwithstanding the fact that the petitioner cannot, now, as held above, agitate that his written statement ought to have been accepted by the learned trial court, I have chosen to consider this grievance of the petitioner on merit. While considering this aspect of the case, I must point out that order VIII, rule 1 as well as order VIII, rule 10 of the Code, which warrant filing of written statement within a period of 90 days from the date of service of summons on the defendant, are part of the procedural law. The procedural law is handmaid of justice and cannot override the necessity to do justice between the parties to the suit. No part of the procedural law and not even order VIII, rule 1 or order VIII, rule 10 can, in the absence of any explicit legislative intendment, be treated to have disempowered the court or can be said to stand in the way of the court to make exception in an appropriate case and accept a written statement beyond the period of 90 days, though, ordinarily and except in rare and compelling circumstances, acceptance of written statement beyond the requisite period of 90 days is not permissible. What crystallizes from the above discussion is that while it is necessary that a defendant is made to file written statement within, at best, the extended time of 90 days from the date of service of the summons, the courts do have the power, in an appropriate case, to accept the written statement beyond the period of 90 days, though such acceptance is not possible except in rare cases and special circumstances. (See Sreenivas Basudev v. Vineet Kumar Kothari, (2006) 3 GLR 230. See also Smt. Rani Kusum v. Smt. Kanchan Devi, (2005) 6 SCC 705, Kailash v. Nankhu, (2005) 4 SCC 480 and Salem Advocate Bar Association, T.N v. U.O.I, (2005) 6 SCC 344).

23. Bearing in mind the position of law, as indicated above, that in rare and special circumstances, court can accept a written statement beyond the prescribed period of 90 days, when I come to the various orders passed in the suit, I notice that according to the order, dated 16.2.2002 (which is not under challenge), summons stood served on the defendant. The defendant, however, appeared in the suit and sought for time on 13.3.2002 and based on this prayer, the defendant was granted time till 26.3.2002 for filing of written statement. As the defendant, again, sought for time to file written statement, the court allowed him time till 4.4.2002 However, on 4.4.2002, the defendant remained absent and the suit was fixed on 18.4.2002 On 18.4.2002, the defendant, once again, sought for time and the court granted him time upto 4.5.2002; but on 4.5.2002, the defendant, once again, remained absent and no step was taken on his behalf. Even on the next date, i.e, 24.5.2002, the defendant remained absent and the suit was fixed on 14.6.2002 On 14.6.2002, the defendant sought for, as usual, further time to file his written statement and the court allowed him time till 5.7.2002 On 5.7.2002, as his conduct had been in the past, the defendant remained absent. Even on the next date, that is, on 2.8.2002, the defendant remained absent and the suit was fixed for necessary order on 31.8.2002 However, on 31.8.2002, though the defendant was present, the written statement was not filed by him. In fact, on 31.8.2002, no petition was filed seeking time for filing or written statement. Finally, on 7.9.2002, the court directed the defendant to file his written statement within 30 days and fixed 11.10.2002 for filing of written statement. Surprisingly, however, the defendant made, even on 11.10.2002, yet another application seeking time and the court granted him time till 16.11.2002, as a last chance, for filing of written statement. On the date so fixed, i.e, 16.11.2002, when the defendant filed a petition stating that the written statement could not be prepared and sought for time, the court rejected the defendant's petition and fixed the suit for hearing on 6.12.2002 When the suit was so pending for hearing, the defendant, once again, filed a petition, on 21.11.2002, praying for time to file his written statement. This petition was rejected and the court fixed the suit for plaintiff's hearing on 24.1.2003 and it was on 14.2.2003 that the defendant, eventually, filed his written statement. Thus, the manner in which the defendant conducted himself in the suit, it clearly transpires that he had neglected to file the written statement and it was in compelling circumstances that the learned trial court decided to proceed with the hearing of the suit. In the face of the facts as indicated hereinbefore, the rejection of the petitioner's prayer for accepting his written statement cannot be said to be illegal or improper.

24. So far as the mode of payment of rents and the due date of payment of rents are concerned, the agreement of tenancy between the defendant and Md. Basir shows that the rent was payable, in advance, by 10th day of each of the calendar month. In the absence of anything showing to the contrary, there can be no doubt that the due date of payment was within 10th of each English calendar month. Exts. 2 to 4 are the rent receipts for the months of January, February and March 1994. This apart, Exits. 5 to 15 relate to monthly rents, which clearly show that the petitioner was bound to pay, and had, in fact, paid, monthly rents, according to the English calendar, every month in advance. As the defendant did not make payment of rent after December 1999, he was treated as a defaulter and the suit was accordingly decreed for his eviction from the suit premises.

25. Let me, now, come to the most important question raised in the present revision, namely, as to whether the plaintiff could have instituted the suit in his own name for eviction of the defendant from the suit premises on the ground that the defendant had become a defaulter. Referring to section 2(c) of the Act, Mr. Sahewalla, as already indicated above, contends that as an attorney of the owner of the suit premises, since the plaintiff was entitled to receive rent on behalf of his principal, he (i.e the plaintiff), in the present case, ought to have been regarded, and has, in fact, been correctly regarded, in terms of the definition of ‘landlord’ given in section 2(c), as the ‘landlord/of the defendant in respect of the suit premises. Resisting the submission, so made, Mr. C.K Sharma Barua, on the other hand, contends that since the agreement of tenancy was between the defendant and Md. Basir and since the plaintiff was merely a rent controller as an attorney of Md. Basir, the plaintiff ought not to have been regarded as the landlord, particularly, when there is no agreement of tenancy between the plaintiff and the defendant.

26. In order to ascertain if the plaintiff, in the present case, could have been regarded as landlord, pertinent it is to take note of the definition of ‘landlord’ as contained in the Act. In this regard, it is noteworthy that section 2(c) defines a landlord to mean any person, who is, for the time being, receiving, or entitled to receive, rent in respect of any house whether on his own account, or on account, or on behalf, or, for the benefit, of any other person, or as a trustee, guardian or receiver for any other person; and includes in respect of his own sub-tenant, a tenant, who has sub-let any house and includes every person not being a tenant, who, from time to time, derives title under a landlord.

27. It is, no doubt, true that a cursory glance at the definition of ‘landlord’ contained in section 2(c), reflects as if any person, who is entitled to receive rent in respect of a house not only on his own account, but also on account of, or on behalf of, any other person, shall be regarded as the landlord. What, however, needs to be carefully noted is that a close reading of section 2 clearly indicates that this definition of ‘landlord’ shall be applied” unless there is anything repugnant in the subject or context’. In other words, the definition of ‘landlord, as given in section 2(c), is not of universal application and this definition may not, in a given case, be applicable if the facts of such a case indicate otherwise. Therefore, while considering as to whether a person can be treated as ‘landlord’ or not, the court has to determine the context in which such a definition has been given. This may, in a given case, necessitate examination of the facts of the given case, for, in the set of facts of a given case, a person, who receives rent, mayor may not be regarded as ‘landlord’.

28. Whether a person, who has himself not given, on rent, a house to a person, as tenant but who merely collects rent as the attorney of the person, who has actually let out the house, as ‘landlord’ to such a ‘tenant’ can be treated as a ‘landlord’ within the meaning of section 2(c) or not can be answered if the scheme of the Act is borne in mind. The Act, as its scheme reflects, aims at providing a self-contained mechanism for preventing, on the one hand, harassment of tenant and protecting, on the other, the interest of landlord. The procedure, prescribed by the Act, is summary in nature so that the proceedings do not suffer from delay, which a suit, ordinarily, suffers from. In order to ensure that the proceedings between a ‘tenant’ and his ‘landlord’ remains a simpler one and does not become too protracted a litigation, the Act seeks to avoid raising of too complicated or intricate issues of facts and law. It is in order to stop tenants from raising questions as to whether a person, who claims himself to be a ‘landlord’ is or not the real owner of a suit property, the Act simplifies the meaning of the term ‘landlord’ by defining as to what the word, ‘landlord’, shall mean.

29. In the present case, what is of utmost importance to note is that section 5(1)(c) of the Act permits a ‘landlord’ to seek eviction of a ‘tenant’ if he has not paid rent lawfully due from him in respect of the house within a fortnight of its falling due. Close on the heels of section 5, section 6 of the Act embodies the duties of the ‘landlord’. This section (section 6) reads as under:

“6. Duties of landlord.— Every landlord shall be bound to keep wind-proof and water-proof any house which is in occupation of a tenant and to carry out other repairs which he is bound to make by law, contract or custom and also to maintain the existing essential supplies and services such as sanitary arrangement, water supply, supply of electricity or drainage service in respect of the house.

Explanation.— “Repair” includes annual whitewashing and recolouring”.

30. If a person is regarded as a ‘landlord’ within the meaning of section 2(c), he must also be such a person against whom duties of the ‘landlord’ can be imposed. The right and duties of the ‘landlord’ within, the scheme of the Act, go hand in hand. When a person is merely a rent collector and is not the one, who lets out a house to a person as tenant, such a tenant would not be able to enforce, against such a rent collector, the duties, which a ‘landlord; in terms of section 6 of the Act, has. However, when a person himself lets out to another person, as ‘tenant’ a house not necessarily as the owner of the house, but even as an agent or as attorney of the actual owner of the house, such a rent collector, though not owner of the house, would be regarded as the ‘landlord’ for, having, let out the house and having received rent, such a person would be bound to carry out the duties of the ‘landlord’.

31. While considering the definition of the term’ landlord’ and’ tenant’ under the scheme of the Act, it needs to be noted that this definition is exhaustive and not inclusive. If a person does not fall within the ambit of the definition of ‘landlord’ as given in section 2(c), he would not be included within the meaning of the definition of the word’ landlord’ given under the Act. A person, to be regarded as a landlord, in relation to another person, must have the relationship of ‘landlord’ and’ tenant’ with the other person, though, for being regarded as a ‘landlord’ it is not necessary that the person, who lets out the house to another person as ‘tenant’ must be the owner of the house. Since a person, other than the owner of a house, can also be regarded as a ‘landlord’ within the meaning of the definition of the word ‘landlord’ given under section 2(c), it logically, follows that once a person enters into an agreement of tenancy with another person, the person, who takes on rent the house, becomes the’ tenant, and for such a ‘tenant’ the person, who lets out the house, becomes the ‘landlord’. Consequently, such a ‘tenant cannot question the legal status of the person from whom he has obtained, on the basis of such a tenancy, the house on rent.

32. What, however, must be borne in mind, while considering the question posed above, is that the Act is silent with regard to the mode of creation of relationship between two persons as landlord’ and ‘tenant’. Nevertheless, what cannot be disputed is that the relationship of landlord and tenant has to be preceded by an agreement, be that agreement oral or written. In other words, it is only pursuant to an agreement, which a person, as ‘tenant’, has with another person, as ‘landlord’ that such a person, as ‘tenant’, has to pay rent to the other person, as ‘landlord’ without questioning as to whether the person to whom he has agreed to pay rent as ‘landlord’ is or is not the actual owner of the house. Viewed from this angle, it is clear that when an agent lets out a house to another person, the attorney becomes, within the definition of the word ‘landlord’ given in section 2(c), the ‘landlord’ of such a tenant. Such a tenant cannot, therefore, question as to whether the agent has or does not have the authority or power to give the house on rent. If a collector of rent is the one, who has given, on rent, the house to a person as tenant, it is the collector, who would be regarded as the ‘landlord’ irrespective of the fact as to whether he is the owner of the house or not. However, in a case, where the owner of the house himself enters into an agreement with another person as a ‘tenant’ and when, in terms of such an agreement, the ‘tenant’ is required to deposit the rent with another person, the person, who received the rents in terms of such an agreement between his principal and the ‘tenant’ would not become a ‘landlord’ for such a tenant merely because he receives the rents from the ‘tenant’ or receives rents on behalf of the ‘landlord’, for, in a case of this nature, the collector of the rent is not the person, who has let out the house to the tenant nor is he privy to the contract, which the ‘tenant’ has with the actual owner of the house as his ‘landlord’.

33. In the present case, the agreement of tenancy is, admittedly, between the defendant and Md. Basir. Thus, Md. Basir is the ‘landlord’ for the defendant and the defendant is the ‘tenant’ of Md. Basir. In such a case, could the plaintiff, as an attorney of Md. Basir, have been regarded as the landlord? In order to answer this question effectively, one has to question himself if there is any agreement of tenancy existing between the plaintiff and the defendant. Since the agreement of tenancy is between Md. Basir and the defendant, the plaintiff is a stranger to the agreement between the parties concerned. Had the plaintiff been the one, who had let out the house, in question, to the defendant, he could have been regarded as ‘landlord’ irrespective of the fact as to whether he is or he is not the owner of the house, in question, or as to whether he has the authority to give the house on rent or not. A person, who is a ‘landlord’ must not only have the right to eject the tenant, but must also be a person against whom the duties of a ‘landlord’ can be enforced by the court under section 6 of the Act. In the case at hand, the present plaintiff had no duty to maintain the house in the manner as section 6 prescribes. In such circumstances, the plaintiff could not have been regarded as the ‘landlord’ and since the plaintiff, could not have been regarded as ‘landlord’ he could not have instituted the suit for eviction of the defendant as ‘tenant’.

34. It is also worth noticing that under section 5 of the Act, a ‘landlord’ is entitled to eject a tenant from the tenanted house if the house is bona fide required by him for the purpose of his own occupation. In a case of present nature, when the tenancy agreement is between Md. Basir and the defendant, can any collector of rent sue the defendant for his eviction from the suit premises on the ground that he requires the suit premises for his own occupation. The need of the rent collector need not necessarily be the need of the ‘landlord’. In such a case, it is inconceivable that merely because of the fact that the rent collector receives rent from a tenant, he would be entitled to even eject the tenant from the house on the ground that he requires the house for his own occupation, particularly, when he is not a party to the agreement of tenancy between the ‘tenant and the real ‘landlord’ Necessarily, therefore, the definition of ‘landlord’ as contained in section 2(c), would mean a person who, as owner or as agent or as collector of rent, lets out a house to a person, as a tenant. The receipt of the rent by the person, who claims himself to be the ‘landlord’ has to be pursuant to an agreement of tenancy, which such a person has with the ‘tenant. If the person, who receives the rent, has no agreement of tenancy, oral or written, with a person as ‘tenant’ he cannot be regarded as the landlord.

35. If Mr. Sahewalla's submission that even a mere collector of rent shall be regarded as a landlord is taken to its logical conclusion, it will lead to wholly unworkable situations. For instance, an agreement of tenancy entered into between A, as landlord, and B, as tenant, may stipulate that B shall deposit the due rent in the account of A maintained by a bank C and B accordingly deposits rent, every month, in the A's account maintained by C. In such a factual scenario, the bank, C, would be the person receiving the rent every month on behalf of A. Can, by any stretch of imagination, the bank, C, be regarded as landlord? If Mr. Sahewalla's submission is acceded to, the fallout of treating the bank, C, as landlord, would be that against the bank, C, B would be able to enforce the statutory duties of the landlord under section 6 of the Act, though the bank does not, merely because of the fact that it receives, on behalf of A, rents from B, become the landlord. Similarly, when the bank has no statutory duties towards B, it would not be able to institute a suit, in its own name, for eviction of B from the tenanted premises by styling itself as the landlord in such a case, what is worth noticing is that there is no agreement of tenancy between B and the bank C, rather, the agreement of tenancy is between A and B. The bank, C, was not even a party to the contract. Hence, mere receipt of money, on behalf of A, would not make the bank, C, to treat itself as the landlord to contend, therefore, that every recipient of rent shall be regarded as landlord is not logical. To be regarded as landlord, the recipient of the rent, if I may repeat, shall be the person, who has, as a landlord, let out the house to the tenant irrespective of the fact whether the recipient of the rent is or is not the owner of the house. In none of the decisions, relied upon by Mr. Sahawalla, the case was that the tenant had no agreement of tenancy, oral or written, with the person, who had been collecting rent from the tenant. To the facts of the case at hand, therefore, the decisions, relied upon by Mr. Sahewalla, have no application.

36. Because of what have been discussed and pointed out above, it is abundantly clear that in the case at hand, the plaintiff cannot be regarded as the ‘landlord’ of the defendant and he had no right to institute, in his own name, the suit for eviction of the defendant. The decree, therefore, passed in the suit, is wholly illegal and must be set aside.

37. In the result and for the reasons discussed above, this revision succeeds. The impugned judgment and decree shall accordingly stand set aside with costs against the plaintiff-opposite party.

38. Send back the LCR.