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Mahabir Prasad Saraogi And Others v. Bibhuti Mohan Bhattacharjee And Others
Concise Summary of the Opinion (Second Appeal) — Shambhu Prasad Singh, J. and Shiveshwar Prasad Sinha, J.
Factual and Procedural Background
This is a second appeal by the plaintiffs arising from a suit concerning (a) eviction from a house in Dehri-on-Sone and (b) arrears of rent. The plaintiffs (appellants) sought eviction on multiple grounds: personal necessity, default in payment of rent for October and November 1962, expiry of the lease term, and breach of conditions of the tenancy. The defendants-respondents denied these allegations, stating there was no personal necessity, that rents for October and November 1962 were remitted by postal money order, that there was no breach of tenancy conditions, and that the tenancy was not for a fixed term (so expiry did not arise).
The lower courts decreed the suit only as to arrears of rent but dismissed the eviction claim. Both courts below found against the appellants on eviction-related questions. The appellants appealed; the second appeal was heard and resulted in the judgment summarized here.
Legal Issues Presented
- Whether the landlord's asserted "personal necessity" (needing part of the land behind the subject house to construct another house) is a valid ground for eviction under Clause (c) of Section 11(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act ("the Act").
- Whether the construction by the tenant of a cow-shed (alleged by the appellants) constituted a breach of the tenancy conditions sufficient to warrant eviction under Clause (a) of Section 11(1) of the Act.
- Whether a tenant must first tender rent personally (hand-to-hand) to the landlord before remitting rent by postal money order under Section 13(1) of the Act, such that remittances made by postal money order without prior personal tender would not be "valid remittances" for the purposes of Clause (d) of Section 11(1).
- Whether the claim of eviction on the ground of expiry of the lease term was sustainable (note: this was pleaded but the opinion contains no detailed analysis of a fixed-term lease question beyond stating the respondents' denial that the tenancy was for a fixed term).
Arguments of the Parties
Appellants' Arguments
- The landlord required at least a portion of the land on which the house stood (vacant land behind the house) to construct another house — this was pressed as "personal necessity" for eviction.
- The respondents breached tenancy conditions by constructing a cow-shed and therefore were liable to eviction for breach.
- Remittances by postal money order were not valid under Section 13(1) unless the tenant had first tendered the rent hand-to-hand to the landlord and only after refusal could remit by postal money order.
Respondents' Arguments
- There was no personal necessity as defined by the Act; the landlord did not require the building for his own occupation or for the occupation of a person for whose benefit the building is held.
- The rents for October and November 1962 had been remitted by postal money order; the respondents contended valid remittance.
- There was no breach of any tenancy condition — the respondents denied constructing a cow-shed, and the tenancy was not for a fixed term, so expiry was not applicable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Chalitar Prasad v. Badri Narain, Second Appeal No. 405 of 1960 (Pat), decided 26-9-1961 | Illustrates that sending rent by postal money order can amount to tender; interprets Section 13(1) and Clause (d) of Section 11(1) to require that when rent sent by money order is refused, the tenant re-sends (remits) it by postal money order and that such remittance then qualifies as a "valid remittance" under the Act. | The court relied on the principle in this earlier decision to support the view that remittance by postal money order can constitute a valid tender/remittance under Section 13(1), and that re-remittance after refusal satisfies the requirement of a "valid remittance" under Section 11(1)(d). The court applied that reasoning to conclude the respondents complied with Section 13(1) in the present case. |
Court's Reasoning and Analysis
The court analyzed each pleaded ground for eviction by reference to the statutory language of the Bihar Buildings (Lease, Rent and Eviction) Control Act and the evidence recorded in the case.
Personal Necessity (Clause (c) of Section 11(1))
The court examined Clause (c) of Section 11(1), which the opinion quotes: "Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord." The court reasoned that the clause requires that the landlord actually require the building for his own occupation or for a person for whose benefit he holds it. The appellants' asserted necessity — requirement of a portion of the land to build another house on vacant land behind the subject house — did not satisfy this statutory description of personal necessity. Consequently, the lower courts' adverse findings on this point were held not to be erroneous.
Breach of Conditions of Tenancy (Clause (a) of Section 11(1))
The appellants alleged respondents constructed a cow-shed in breach of tenancy conditions. The respondents denied this and the lower courts accepted the respondents' case. The appellate court noted that, even if some construction occurred, eviction for breach requires that there be an express contractual condition prohibiting such constructions. In the absence of an express term forbidding temporary constructions, no breach enabling eviction under Clause (a) could be established. The court observed that in such matters general law (specifically the Transfer of Property Act) would govern rights concerning constructions, implying the Act's eviction ground for breach cannot be invoked without an express tenancy condition to that effect.
Default in Payment of Rent and Postal Money Order Remittances (Clause (d) of Section 11(1) and Section 13(1))
Clause (d) of Section 11(1) permits eviction where "the amount of two months' rent lawfully payable by the tenant and due from him is in arrears" because it was not paid within the time fixed by contract or "by not having been validly remitted or deposited in accordance with Section 13." Section 13(1) provides that when a landlord refuses to accept rent lawfully payable, the tenant may remit such rent and continue to remit subsequent rent by postal money order.
The factual matrix: the respondents first remitted October 1962 rent by postal money order; when it was refused by the appellants they re-remitted October and also remitted November 1962 rent by postal money order. The appellants contended remittance by postal money order is only permissible after a prior, personal, hand-to-hand tender by the tenant; otherwise the remittances would not be "valid" under Section 13(1).
The court made two analytical points:
- Procedural/timing point: The suit was instituted on 14 December 1962. Even if the respondents had tendered rent by 31 December 1962, they would not have been defaulters within the meaning of Section 11(1)(d). Thus, the suit seeking eviction on arrears for October and November 1962 was premature and could not properly succeed on that ground.
- On the substantive point (referred to the Division Bench), the court construed Section 13(1) purposively: the substance and real intention of Section 13(1) is that remittance by postal money order within the relevant time prevents eviction for default. Therefore, a prior hand-to-hand tender is not a condition precedent to remittance by postal money order. The court noted there may be cases where the landlord is distant and the post office is the only practical means, supporting a broad reading. The court further relied on the cited precedent (Chalitar Prasad v. Badri Narain) which held sending rent by money order amounts to tender and that when money-order remittance is refused and then re-sent by postal money order, the requirement of valid remittance is satisfied.
Applying that reasoning to the present case, the court found that the respondents' first money-order remittance for October 1962 and the subsequent re-remittance (October and November 1962) complied with Section 13(1). The court also noted evidence (cross-examination of D.W.5) indicating that the October 1962 rent was sent by money order only after refusal of tender by the landlord, further supporting compliance with Section 13(1). Therefore, the lower courts did not err in holding against the appellants on the default point.
Concurring Opinion (Shiveshwar Prasad Sinha, J.)
The concurring judge agreed with the reasoning and result. He observed that while the wording of Section 13 might create an impression that initial tender must be personal, a careful reading permits tender either personally or by an agent. He stated the post office is an agent and therefore initial tender via postal money order is permissible; if such tender is refused, the tenant may again send by postal money order. This concurrence reinforces the majority's construction that postal money order remittances can constitute valid tenders/remittances under Section 13(1).
Holding and Implications
HOLDING: The appeal is dismissed with costs.
Direct consequences for the parties:
- The dismissal affirms the lower courts' findings against the appellants on the eviction claims (personal necessity, breach, and default grounds analyzed above).
- The earlier decree in respect of arrears of rent (as previously decreed by the lower courts) remains operative; the appellants do not succeed in obtaining eviction on the challenged grounds in this appeal.
On broader implications: the court expressed and applied a construction of Section 13(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act that treats postal money order remittances as capable of constituting valid tender/remittance (including where an initial money-order tender is refused and re-remittance is made). The court relied on an earlier Patna decision (Chalitar Prasad v. Badri Narain) for that proposition. The opinion does not purport to create a new precedent beyond applying statutory construction and existing case law to the facts; it upholds the lower courts' factual findings and statutory interpretation in this case.
This summary is prepared exclusively from the provided opinion text and contains no information that is not present in that text.
Shambhu Prasad Singh, J.:— This second appeal by the plaintiffs arises out of a suit for eviction from a house situate in the town of Dehri-on-Sone and for arrears of rent. Eviction was claimed on all the possible grounds available, namely, personal necessity, default in payment of rent for the months of October and November, 1962, expiry of the term of the lease and also breach of the conditions of the tenancy. The defendants-respondents denied all the allegations. According to them, there was no personal necessity, there was no default in payment of the rents for the months of October and November, 1962 which were remitted by postal money order, there was no breach of any of the conditions of the tenancy and the tenancy not being for a fixed term there was no question of expiry of the lease. The suit has been decreed so far as arrears of rent are concerned, but has been dismissed in respect of the claim for eviction. On all the questions relating to eviction both the Courts below have concurrently found against the appellants.
2. Mr. Rameshwar Prasad, learned counsel for the appellants has submitted that the findings of the Courts below on the questions of personal necessity, default and breach of condition of the tenancy were wrong. The personal necessity alleged and pressed in the Courts below was that the appellants required at least a portion of the land on which the house was situated for constructing another house on the vacant land behind the house which is the subject-matter of the dispute in the present suit.
3. Such a necessity cannot be a ground for eviction under the Bihar Buildings (Lease, Rent and Eviction) Control Act (hereafter referred to as ‘the Act’). Section 11 of the Act lays down the grounds on which a tenant can be evicted. He cannot be evicted on grounds not mentioned in that section. The ground commonly known as personal necessity is stated in Cl. (c) of sub-section (1) of S. 11 which reads as follows:—
“Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord”.
4. It is manifest from the language of this clause that if the landlord does not require the building for his own occupation or for the occupation of any person for whose benefit the building is held by him he cannot get the tenant evicted on the ground of personal necessity. Thus, the Courts below do not appear to have committed any mistake in recording a finding against the appellants on this question.
5. If was urged by the appellants in the Courts below that the respondents committed breach of conditions of the tenancy as they constructed a cow-shed. It was denied by the respondents and the Courts below have accepted the case of the respondents. Apart from it unless it is alleged and proved that there was a contract between the landlord and the tenant that the tenant cannot make even any temporary constructions on the premises, that cannot be a ground for eviction because there being no such condition there cannot be any breach of it. The relevant clause of Section 11(1) dealing with breach of the conditions of the tenancy is Clause (a) and there is nothing in it on the basis of which it can be said that a tenant in absence of an express condition is not entitled to make temporary constructions. The matter will be governed by general law, i.e, Transfer of Property Act. The Courts below, therefore, do not appear to have erred in holding against the appellants even on the question of breach of the conditions of the tenancy.
6. The main point urged by learned counsel for the appellants which, it appears, led to reference of this case to the Division Bench, is on the question of default. Clause (d) of Section 11(1) of the Act provides that 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 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, the landlord will be entitled to get the tenant evicted. Section 13(1) of the Act runs as follows:
“When a landlord refuses to accept any rent lawfully payable to him by a tenant in respect of any building, the tenant may remit such rent, and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord”.
7. In the instant case the respondents firstly remitted by postal money order the rent for the month of October, 1962 and when it was refused by the appellants then again remitted by postal money order the rents for the months of October and November, 1962. Mr. Rameshwar Prasad has contended that the remittances were not valid remittances under Section 13(1) of the Act inasmuch as according to him before remitting the rent by postal money order the tenant must tender the rent hand to hand to the landlord and only if the landlord refuses to accept the rent, the former may remit it by postal money order. Firstly, this point does not arise for decision in this case. The suit was instituted on the 14th of December, 1962. Even if the respondents would have tendered the rent by the 31st of December, 1962, they would not have been defaulter within the meaning of Section 11(1)(d). Thus, the suit was premature and the appellants cannot get the decree in this suit on the ground of default in the payment of rent for the months of October and November, 1962. However, as the case has been referred to Division Bench for decision of the aforesaid point. I would like to express my opinion on that point as well. In construing a statute one has to look to its substance and the real intention behind the enactment. The substance of Section 13(1) and the real intention behind it in my opinion, are that once the rent is remitted by postal money order within the time mentioned in S. 11(1)(d) of the Act, the landlord cannot claim eviction of the tenant on the ground of default in payment of rent. Therefore, in my opinion, a tender by the tenant to the landlord before remitting rent by postal money order is not a condition precedent to such remittance. There may be cases where the landlord is living at a distant place and rent can be sent to him only by remittances by postal money order. However, even if it be assumed in favour of the appellants that tender of the rent is a condition precedent for remittance by postal money order, as was held in Second Appeal No. 405 of 1960. (Chalitar Prasad v. Badri Narain) decided on 26-9-1961 (Pat) tender by postal money order is a valid tender and if it is refused by the landlord the tenant becomes entitled ‘to remit such rent and continue to remit any subsequent rent which becomes due in respect of such building, by postal money order to the landlord”. It was so held in that case on which the learned counsel for the appellants relies:—
“Section 13(1) as a matter of fact does not speak of any tender of the rent by the tenant to the landlord. It speaks only of refusal of the rent by the landlord. But as a refusal implies a tender, because unless there is a tender there can be no refusal of it, it is inherent in Section 13(1) that there should have been a tender of the rent and then refusal of it by the landlord. No doubt S. 13(1) does not provide the mode of tender, and, that sending of rent by money order does amount to its tender, but in my opinion, in order to satisfy the requirements of Section 13(1), it is necessary that the rent, which is sent by money order, in the first instance, but is refused, should be re-sent to the landlord, again by postal money order, and unless that is done there can be no compliance with Section 11(1)(d) read with Section 13(1) of the Act Clause (d) of Section 11(1) speaks of the rent due having been ‘validly remitted’ in accordance with Section 13. It is only when the landlord has refused to accept the rent and then the tenant has remitted the rent so refused to the landlord by postal money order, that the rent can be said to have been ‘validly remitted’ within the meaning of Section 11(1)(d) read with Section 13(1) of the Act”.
8. In the instant case, as observed earlier, the respondents having first tendered the rent for the month of October, 1962 by postal money order and after its refusal by the appellants having re-remitted the rent for the month of October, 1962 together with the rent for the month of November, 1962, they have complied with the requirements of Section 13(1) of the Act. It may further be stated that the point in this form has been taken for the first time in this Court From the cross-examination of D.W 5 it appears that even the rent for the month of October, 1962 was sent by money order only after there was a refusal of tender by the landlord. The Courts below, therefore do not appear to have erred even on this point.
9. In the result, I find no merit in the appeal and it is accordingly dismissed with costs.
Shiveshwar Prasad Sinha, J.:— I agree with my learned brother that the appeal has to be dismissed. An impression is created by the wordings of Section 13 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 that the initial tender of rent by the tenant to the landlord should be personally by the tenant and it is only when the landlord refuses to accept the rent so tendered that the tenant may send the rent by postal money order. The wordings of the section have already been quoted by my learned brother in this judgment and I need not repeat them here. I, however, think on reading the section carefully that rent could be tendered in two ways, either personally or by an agent. The post office is equally an agent and, therefore, I think that rent could initially be tendered through postal money order and even on the refusal of such tender the tenant was entitled to take recourse to send the money by postal money order. This having been done in the instant case, there is no merit in the contention of learned counsel for the appellants that the tender of rent should first be a personal tender by the tenant to the landlord and only when the landlord refuses to accept such tender that the rent could be sent by postal money order.
10. Appeal dismissed.
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