H.L Agrawal, J.:— This application in revision by the defendant arises out of an order of the learned Munsif passed under Section 11A of the Bihar Buildings (Lease Rent & Eviction) Control Act, 1947 directing him to deposit the arrears as well as current and future rents at the rate of Rs. 45/- per month in terms of Section 11A of the Act.
2. The questions that were raised by the defendant petitioner before the trial court as well as in this Court are these:—
(i) The relationship between the parties being that of a mortgagor and mortgagee, the suit itself was not maintainable and therefore, no order under Section 11A should be passed against him.
(ii) The defendant having never oaid any rent to the plaintiff-landlord there was no ‘last paid rent’ within the meaning of Section 11 and therefore, no direction in any view of the matter could be made.
3. The relevant facts giving rise to this controversy between the parties are these:
4. According to the plaintiffs' case, they purchased from the defendant the premises in question by two registered deeds of conditional sale dated 9.9.1969, for a total consideration of Rs. 1500/- and hiving taken possession, leased back the premises to the defendant petitioner on the same day at a monthly rental of Rs. 45/-. There was, however, no stipulation for payment of any interest in the deeds of conditional sale as found by the trial court. It was, however, stipulated therein that in case the entire consideration was repaid by 9.9.1971 the holding was to be reconvened to the defendant mortgagor by the plaintiff. The allegation of the plaintiff is that the payment hiving not made within the stipulated time, transaction of conditional sales became absolute. It is further admitted by the plaintiff that no payment of rent was ever made by the defendant.
5. The case of the defendant petition net however, was that the transaction in question were not of conditional sales but were only of mortgage by conditional sale. He however, offered the mortgage money to the plaintiff. But they refused to accept the same.
6. The suit was instituted on 9.2.1971 for eviction of the petitioner from the premises in question on the ground of default in making the payment of rents within the meaning of Section 11(1)(d) of the Act. On filing of the written statement by the petitioner an application under Section 11A was filed by them for an order on the petitioner to deposit all the arrears as well as current rents of the premises in question. This petition was contested by the petitioner on the grounds already indicated above.
7. The learned Munsif has recorded the following tentative findings while allowing the petition:
(1) The two deeds conveyed the premises in suit absolutely to the plaintiff and were not mortgages by conditional sales.
(2) In view of the agreement between the parties for leasing the premises in question on a monthly rental of Rs. 45/-, a relationship of landlord and tenant was created between them and,
(3) Although the tenant had not made any payment they were liable to pay the arrears and current rents at the rate of Rs. 45/- per month.
8. I shall take up now the first question raised by Mr. Katriar namely, that the relationship between the parties was that of a mortgagor and mortgagee and not that of a landlord and tenant. The expression “landlords” has been defined in the Act under Section 2(d) to mean the person who for the time being is receiving, or is entitled to receive the rent of a building whether on own account or on behalf of another”.
9. There is nothing in the definition of the term “landlord” to suggest that the landlord must be the proprietor or owner of the building. Even if therefore, the plaintiff happens to be a mortgagee of a building and not its proprietor and otherwise entitled to receive the rent of the same, he will answer the description of a landlord as given in the Act. (See 1953 B.L.J.R 587).
10. The contention of Mr. Katriar is based upon the one time prevailing view in this Court to which I shall refer here in after, laying down the principle that where a mortgage and the Kirainama were part of the same transaction the Kirainama being only a device for the regular payment of the interest on the amount advanced by the mortgagee, no relationship of landlord and tenant is created thereby and accordingly the suits filed for recovery of arrears of rents pure and simple were held to be non-maintainable. Some of these cases taking the above view are (1) Umeshwar Pd. Sinha v. Dwarika Pd. (A.I.R 1944 Patna 5) (2) Ramnarain Pasi… v. Sukhi Tiwary…Opposite Party. (A.I.R 1957 Patna 24). (3) Dr. Haji Md. Ahsanul Tauhid v. Shah Akhtar Hussain (1959 B.L.J.R 521), (4) Gaya Pd. Saha v. Chitrakut Narain Sinha (A.I.R 1960 Patna 485), (5) Baijnath Pd. v. Babu Jang Bahadur Singh (1955 B.L.J.R 55) and (6) Savitri Devi v. Beni Devi (A.I.R 1968 Pat. 223). Reference may also be made in this regard to two Bench decisions of this Court in the cases of (1) (7) Shivajee Prasad Sahu v. Mananth Darsan Das (1962 B.L.J.R 789) and (2) (8) Lakhi Narayan Sao v. Srimati Bhag-watl Kuer alias Shoagwati Kuer (1963 B.L.J.R 361). In these cases in slight modification of the earlier view it was held that claim for the mortgage money and arrears of rent did not form part of the same cause of action during the subsistence of the mortgage and failure to sue for the mortgage money in a previous suit for arrears of rent did not disentitle the mortgagee sue subsequently for the mortgage money; Order 2 rule 2 not being a bar to the later suit.
11. He that as it may, apart from the fact that the court below has construed the documents as sale deeds, the point also is now completely settled by a decision of the Supreme Court in the case of (9) Mathuralal v. Keshwar Bai (1971 S.C 310) taking a contrary view and expressly overruling the two cases of this Court namely, (1) (A.I.R 1944 Patna 5) and (2) (A.I.R 1957 Patna 24) already referred to above.
12. In this case the defendant had mortgaged his house for a sum of Rs. 3100/- with possession fixing a period of redemption by two years carrying interest at the rate of 10 annas per cent per mensem till its realisation and for the period of mortgage the tenant executed rent notes in favour of the mortgagee to pay Rs. 20 per month as rent to be credited towards interest and the principal mortgage dues, if in excess of the interest.
13. The mortgagee however, filed a mortgage suit for the principal and interest and obtained a preliminary decree for the sale of the property, but no step was taken for making the said decree final within the period of limitation. Later on a suit for ejectment was filed on the ground of default in making payment of rent. In that situation a question arose as to whether the rent suit was maintainable and similar arguments that the rent note being a mere device was to secure the payment of interest and did not create any relationship of landlord and tenant.
14. Repelling the Patna view the Supreme Court held:
“In all such cases the leasing back of the property arises because of the mortgage with possession but we find ourselves unable to hold that the mortgagee does not secure himself any right under the deed of lease but must proceed on his mortgage in case the amount secured to him under the deed of lease (Sic) suit for realisation of the money due under the is not paid……If the security is good and considered to be sufficient by the mortgagee there is no reason why he should be driven to file a rent note….. If during the Continuance of the security the mortgagee wants to see the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had contracted to pay, there can be no legal objection to it….”
15. In the 15th paragraph of the judgment it is further observed that if during the continuance of the security the mortgagee wants to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing himself the amount which the mortgagor had contented to pay there can be no legal objection to it. It also quoted with approval the following view of the Rajasthan High Court in the case of (10) Lalchand v. Nenuram (I.L.R 12 Raj. 947):
“Whether the two documents represent one transaction or two different transactions, a court of law should be anxious to give effect to the terms in both the documents instead of being unduly critical about them….. It is in the interest of the mortgagor that the property is leased out to him as he can better look after it. There is nothing objectionable in this, nor is there any statutory prohibition for such transactions. Now if the parties do this by executing proper documents, it is the duty of the Court of law to give effect to them.”
16. On a review of the Judicial authorities I hold that in such a case a mortgagee is entitled to sue, for eviction or recovery of rent qua-landlord, the mortgagor under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act. The first contention raised by Sri Katriar has therefore, got no merit and must be rejected.
17. I shall now take up the second contention that in the absence of any rent having been last paid no order could be made under Section 11A by the Court.
18. Section 11A prescribes that in a contested suit for recovery of possession of any building the landlord may make an application at any stage of the suit for an order, to deposit month by month “rent at the rate at which it was last paid” and the court after giving opportunity to the parties to be heard may make an order for deposit of rent at such rate as may be deter mined by it month by month.
19. This provision therefore, clearly lays down that the court making an order under Section 11A has to determine the rate of rent to be paid by the tenant. The landlord however, has to state in his application as to what was the rate at which the rent was last paid to him. In the instant case, however, according to the plaintiff's case no rent ever paid. The defendant petitioner having executed an agreement of lease to pay the rent at the rate of Rs. 45/- per month did not make any payment. In this case therefore there is no rent which was “last paid” by the tenant the landlord then could only inform the court the rate of which was agreed to between the parties. It can, therefore, in the circumstances, be said that a court is powerless or in other words, cannot make any order under. Section 11A. The sheet anchor of Mr. Katriar is the decision in the case of (11) Mahabir Ram v. Shiba Shankar Prasad (A.I.R 1968 Patna 415) where it was observed that:—
“In an application for ejectment of tenant under Section 11A of the Bihar Buildings (Lease, Rent & Eviction) Control Act (3 of 1947) the Court has to determine act to what was the rate of rent last paid and as to what amount of rent is in arrears, if any.”
20. In my opinion this decision cannot be an authority for a proposition that in a case where there has been never any payment the default being committed from the very inception of tenancy and therefore, there is ho rent last paid by a tenant to a landlord, no order under Section 11A can be passed. The expression “last paid rent” and the enquiry to be made in that regard, as observed in the above decisions, in my view is called for only in a case where the question arises between the parties as to the rate of rent itself. For example, where a landlord says that the rate of rent was Rs. 100/- and the tenant challenges the same, in that event the court will determine under this provision the rate of rent, at which the tenant had made the last payment. The right to determine the rate of rent has been given to the Court under this situation. I do not, therefore, agree with the contention that in a case where no payment has been made, no order itself could be made under this provision. Such a construction of this section will go against the very intention of the provision itself and will give undue disadvantage to a more erring tenant. In such a case, the Court holding the enquiry under Section 11A would proceed to enquire as to what was the agreed rate of rent payable for the premises in question. Once this question was determined that would furnish the basis of an order under the section. The learned Munsif has, therefore, committed tip error of jurisdiction while giving a direction to the petitioner to deposit the rents at the rate of Rs. 45/- per month according to the rate of rent agreed by him in the Kirainama in question.
21. Having answered both the questions raised by Mr. Kairiar, against him this application must fall and is accordingly dismissed with costs. Hearing fee Rs. 64/- only.
Application dismissed.