1. This is a defendants' Second Appeal against a judgment of reversal, the trial Court having dismissed the plaintiff's suit for eviction on the ground of personal necessity and default in payment of rent for the period from Nov., 1974 to September, 1975 and again from Nov., 1975 to Nov., 1976 as also for arrears of rent.

2. There is a double storeyed pucca building bearing Municipal Holding No. 139 (old) 147 (new) situate in Ward No. 8 old, 18 new, Circle No. II, mohalla Chhoti Saraiyaganj. Jawaharlal Road in the town of Muzaffarpur in an area of one katha. This house (hereinafter referred to as ‘demised premises’) belonged to one Ram Chandra Sah who, undisputedly, inducted defendant Bharat Roadways as a month to month tenant on a monthly rental of Rs. 200/- per month. Undisputedly, there was no written contract regarding this tenancy. The defendants were not paying rent to Ram Chandra Sah since Nov., 1974 and as such, the latter had served a notice on the former determining the tenancy on expiry of 31-3-1975. The demised premises was purchased by the plaintiff from Ram Chandra Sah under a registered sale deed dated 30-12-1975 (Exhibit 5) in which the arrears of rent amounting to Rs. 2600/- was also transferred to the plaintiff, notice of which transfer was duly given by Ram Chandra Sah to the defendants. It is undisputed that the defendants accepted the plaintiff as their landlord in respect of the demised premises after execution of the sale deed. Rent having not been paid to the plaintiff, a minor, for the period abovementioned, he instituted the instant suit through his father.

3. The defendants contested the suit disputing the claim of the plaintiff for eviction on both the two grounds abovementioned, alleging, inter alia, that they had all along sent rent by money order to Ram Chandra Sah and subsequently to the plaintiff by money orders which were refused by them except the amount of Rs. 200/- sent by money order to Ram Chandra Sah as rent for the month of Oct. 1975, which he (Ram Chandra Sah) had accepted.

4. The trial Court dismissed the plaintiffs suit in toto on a finding that there was no default in payment of rent and that the plaintiff did not require the demised premises bona fide in good faith for personal use and occupation.

5. The plaintiff took up the matter in appeal. The lower appellate Court decided the question of personal necessity and default in payment of rent in favour of the plaintiff and holding that the defendants had failed to prove that they had spent a sum of Rs. 5,000/- over repair and that there was no contract entitling them to set off this amount in rent, he decreed the suit for eviction as also for arrears of rent amounting to Rupees 4,800/- as claimed by the plaintiff. The defendants have now taken up the matter before this Court in this Second Appeal.

6. The substantial question of law, formulated by this Court, while admitting this Second Appeal, may be found in Order No. 11 dated 19-8-1981 which is as follows:—

“Whether the finding of the Court of Appeal below with respect to the default in payment of the monthly rent and personal necessity of the landlord is sustainable in the eye of law?”

At the time of hearing of this appeal, Mr. Sudhir Chandra Ghose, learned counsel for the appellants, raised a further substantial question of law for consideration, namely, that the decree for eviction passed by the lower appellate Court without consideration of the proviso to Clause (c) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (Bihar Act 4, 1983), hereinafter referred to as the ‘Act’, was liable to be set aside. In the facts and circumstances of this case, Sri Ghose was allowed to argue this substantial question of law as well.

7. Coming to the question of default in payment of rent, while the finding of the lower appellate Court on this point was challenged by Sri Ghose, the submission of Sri Shreenath Singh, learned counsel for respondent, was that without considering the default in respect of other months, it was clear that the defendants defaulted in payment of rent for two consecutive months, namely, Jan. and Feb., each of the year 1976 and as such the defendants were liable to be evicted under Clause (d) of sub-section (1) of Section 11 of the Act. In order to appreciate the arguments raised by the learned counsel for both the parties, it may be relevant to quote Section 11(1)(d) of the Act:

“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 (Act XIV of 1947), and to those of Section 18, 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:—

(a) to (c) xxx

(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 the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 19.”

The defendants claimed to have paid rent to the plaintiff for the month of Jan., 1976 by remitting the same under money order coupon (Exhibit A/22) on 3-2-1976 which was refused by the plaintiff under money order receipt (Exhibit B/23) on 17-2-1976. The rent for the month of Feb., 1976 was also remitted by the defendants to the plaintiff under the money order coupon (Exhibit A/21) on 4-3-1976 which too was refused by the plaintiff. The terms ‘paid’ and ‘validly remitted’ occurring in Section 11(1)(d) of the Act have to be significantly noted. Ordinarily, an agreement, either written or verbal, is entered into between the landlord and tenant regarding the terms of the tenancy including payment of rent. Everything goes alright when the tenant pays monthly rental to the landlord as agreed upon. The term ‘paid’ in the Oxford English Dictionary, Volume VII (N-Poy) means, inter alia, remunerated or recompensed with money, in receipt of pay or given as money in discharge of an obligation, discharged, as a debt; for which the money has been given. Difficulty arises when the rent is not paid by the tenant to the landlord hand to hand or the latter does not accept the rent when it is sought to be paid to him. To meet such contingency the provisions of Section 19 of the Act were enacted. Sub-section (1) of Section 19 of the Act stiles as follows:—

“19(1). 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.”

As sub-section (1) of Section 19 of the Act envisages, the tenant can take advantage of this precision only when the landlord refuses to accept any rent lawfully payable to him by a tenant in respect of a building. If the landlord refuses to accept the rent for any month, the tenant may remit such rent by postal money order and may continue to remit the subsequent rent which becomes due in respect of the building by postal money order to the landlord. Obviously, the provision of the latter part of sub-section (1) of Section 19 of the Act, namely, “and continue to remit any subsequent rent” will be available to him only when the earlier part is satisfied, namely, that the landlord refuses to accept the rent and the tenant remits the same by postal money order.

8. Under Section 11 of the Act, the amount of two months' rent will not be deemed to be due or to be arrears if it has been paid in time. It shall not also be deemed to be in arrears if the same has been validly remitted or deposited in accordance with Section 19 of the Act.

9. The defendants, undisputedly, sent the rent for the month of Jan., 1976 to the plaintiff by money order on 3-2-1976 under the money order coupon (Exhibit A/22). This was refused by the plaintiff on 17-2-1976. It is not the case of the defendants that the plaintiff refused to accept the rent for Jan., 1976 earlier to its being sent under money order. If the tenant wants to take advantage of the provisions of Section 19 of the Act, he has to come squarely within the four corners of that section which necessitates that before the tenant sends the rent by postal money order, there must be a refusal by the landlord to accept the rent earlier to the sending of the rent by money orders. The refusal of the plaintiff to accept the money order (Exhibit A/22) may be a refusal within the meaning of this term as used in sub-section (1) of Section 19 of the Act but if the tenant wants to take advantage of the provisions of sub-section (1) of S. 19 of the Act, he shall be required to remit that rent by money order again. This has not been done in the instant case. In such a situation, the sending of the rent for Jan., 1976 under the money order coupon (Exhibit A/22) cannot be regarded as a valid remittance of rent under the provisions of sub-section (1) of Section 19 of the Act and in the eye of law the tenant will be deemed to be in arrears of rent for the month of Jan., 1976.

10. Coming to the month of Feb., 1976, the rental thereof was also sent by the defendants to the plaintiff by money order on 4-3-1976 by Exhibit A/21. This too was refused by the plaintiff. Had the remittance of the rent for the month of Jan., 1976 been validly made under sub-section (1) of S. 19 of the Act, the tenant would have been within his right to send the subsequent rent by money order. Since, however, the rent for the month of Jan., 1976 cannot be said to have been validly remitted under Sec. 19 of the Act, the remittance of rent for Feb., 1976 also by money order cannot be said to be a valid remittance and consequently, the tenant will be deemed to be arrears in respect of rent for the months of Jan. and Feb., 1976. The view that I have taken above, as contended by Sri Shreenath Singh, learned counsel for the respondent, is supported by a decision of this Court in Second Appeal No. 405 of 1960 decided on 26-9-1961 (Chalitar Prasad v. Badri Narain) notes whereof may be found printed in Summary of Cases at page 10(2) of 1962 BLJR. The observations of his Lordship in S.A No. 405 of 1960 (supra) have been quoted in a Division Bench decision of this Court reported in AIR 1973 Pat 83, (Mahabir Prasad v. Bibhuti Mohan). Sri Singh further relied on two Division Bench decisions of this Court one reported in AIR 1975 Pat 154, (Madholal v. Madan Mohan) and the other in 1962 BLJR 888 (Purusottam Das Kapoor v. Baijnath Prasad Sah). In AIR 1975 Pat 154, it was held that in order to escape liability of eviction under Section 11(1)(d) by resorting to Section 13(1) of the old Act, the circumstances of the remittance or deposit of rent must fall within the ambit of Sec. 13(1) i.e prior refusal by the landlord of rent tendered within time, hence where the initial sending of the rent by postal money order was itself beyond time, the refusal thereof by the landlord could not be availed for claiming the benefit under Section 13(1). Similarly, it was held in 1962 BLJR 888 (supra) that if the landlord refuses to accept rent which is tendered by the tenant, then the statute further provides that the rent may be remitted or deposited in accordance with the provisions of Section 13 of the statute.

11. Sri Ghose submitted that there were observations in the aforesaid decisions to the effect that a valid remittance of rent by money order, by itself, without any refusal, as contemplated in sub-section (1) of S. 19 of the Act, may serve the purpose. As contended by Sri Singh, these decisions do not lay down any such proposition. It was also the contention of Sri Ghose that the plaintiff not having pleaded this aspect of the case, he was debarred from raising this contention. This being purely a point of law and in the fact and circumstances of this case the contention is negatived. It was also contended that acceptance of rent for the month of Oct., 1975 sent by money order by Ram Chandra Sah would entitle the defendants to take advantage of the provisions of sub-section (1) of Section 19 of the Act. This contention of Sri Ghose is also devoid of any merit. Lastly, it was contended that the lower appellate Court was wrong in observing in para 14 of its judgment that the rent for the months of Jan. and Feb., 1976 etc. should have been repeatedly sent. As fairly conceded by Sri Singh, this view of the lower appellate Court was not correct in view of the decision of this Court reported in AIR 1980 Pat 242 (Raj Kumar Prasad… v. Uchit Narain Singh….) in which the decision of this Court reported in AIR 1978 Pat 292 (Rajendra Mohan Ghosh… v. Smt. Kaushalla Devi….) was overruled. That may be so, but in view of what has been said and discussed above, it is established that the defendants failed to pay rent for the months of Jan. and Feb., 1976 to the plaintiff in accordance with the provisions of the Act and thereby defaulted in payment of rent for two months and the mischief of Section 11(1)(d) of the Act would well be attracted and the defendants will be liable for eviction on the ground of default.

12. The plaintiff wanted eviction on the ground of personal necessity as well stating in para 12 of the plaint that he required the building for his own occupation and that of his parents, both for residence and business purposes. After discussion of the evidence, the lower appellate Court observed as follows:

“In such a circumstance this cannot be said that the plaintiff-appellant does not require the house bona fide in good faith. Accordingly, I hold that the plaintiff-appellant is entitled to get a decree for eviction on the ground of personal necessity also.”

It is a finding of fact which is binding on this Court. Sri Ghose, however, assailed this finding on the ground that while at one place the necessity of the father was considered to be necessity of the son the lower appellate Court adopted a different approach by observing that the Islampur house belonged to the father and not the plaintiff. Even excluding this observation of the lower appellate Court, the above finding of fact by the lower appellate Court stands supported on other materials. While a person can generally adjust in any building situate. In any locality for residential purposes, the matter stands differently when the requirement is for business purposes. This matter came incidently for consideration of the lower appellate Court when a petition for inspection was filed by the appellants and was opposed by the plaintiff by filing a counter-affidavit. This has been dealt with in order No. 44 dated 18-9-1979 of the records of the lower appellate Court. Even in this Court, the appellants filed a supplementary affidavit on 11-11-1983, hearing of the Second Appeal having commenced on 9-11-1983, stating, inter alia, that the double storeyed building in mohalla Islampur had completely been constructed. The submission of Sri Singh was that while the demised premises is situate in mohalla Chhoti Saraiyganj in the town of Muzaffarpur, the Islampur house is situate at Churipati in mohalla Islampur. Sri Singh contended that even in the Supplementary Affidavit filed on 11-11-1983, it was nowhere stated by the appellants that the location of this Islampur house was suitable for the purposes of business. Thus, on the materials available on the record, the completion of the Islampur house, even if it be assumed to be true cannot, by itself, defeat the claim of personal necessity put forward by the plaintiff and rightly decided in his favour by the lower appellate Court on due consideration of the evidence. The facts of the case reported in AIR 1981 SC 1711 (Hasmat Rai v. Raghunath Prasad) are different from the facts of the instant case and this decision of the Supreme Court is of no avail to the appellants.

13. Coming to the third substantial question of law, the submission of Sri Ghose was that as there was no consideration of proviso to Clause (c) of sub-section (1) of Section 11 of the Act, the case should go back on remand for determination of this question and placed reliance, in this connection, on a Single Bench decision of this Court reported in AIR 1981 Pat 230 (Arun Kumar Sah v. Md. Basin Ahmad) as also on a decision of the Supreme Court reported in AIR 1981 SC 1113 (M.M Quasim v. Manohar Lal Sharma). The ground of eviction in the case of Arun Kumar v. Md. Basin Ahmad (supra) was personal necessity. The proviso to Clause (c) of sub-section (1) of Sec. 11 of the Act deals with eviction on the ground of personal requirements. The submission of Sri Singh was that no such plea was taken by the appellants in any of the two Courts below. In appropriate circumstances, such a plea can no doubt, be taken even in the Second Appeal but the further submission of Sri Singh was that the plaintiff had claimed eviction on two grounds, namely, personal necessity and default in payment of arrears of rent and if the plaintiff is entitled to succeed on the ground of default in payment of rent, the defendants cannot take advantage of the above provision. I find force in this contention. The facts of the case reported in AIR 1981 SC 1113 (supra), relied upon by Sri Ghose, are different as the suit was remanded in that case for determination of two questions, namely:

“(1) Does the partition decree transfer the suit shop to Pyarelal Sharma exclusively?

(2) If yes, can the respondents (plaintiffs) maintain the action and are entitled to evict the appellant (defendant) on the ground of personal requirement of Manohar Lal Sharma (respondent 1) and/or on the ground of default as contemplated by Section 11(1)(d) of the Rent Act?”

In the facts and circumstances of this case, this contention of Sri Ghose also fails. No other contention was raised before this Court.

14. The result is that there is no merit in this second appeal which fails and is dismissed with costs. Pleader's fee Rs. 32/-. The Judgment and decree of the lower appellate Court as hereby confirmed.

Appeal dismissed.