Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal from the Appellate Decree No. 372 of 1983

Judges

P.S Mishra, J.

Acts

provision of order 11, rule 21 Code of Civil Procedure
Order 11, rule 21, of the Code of Civil Procedure.
Order 41 rule 11 of the Code of Civil Procedure
Order 41 rule 1: of the Code of Civil Procedure
Section 100(5) of the Code of Civil Procedure,
eviction) Control Act, 1947 (hereinafter
SECTION 23 CONTRACT ACT
sub-section 5 of section 100,
section 15 of 1982 Act
Rule 11 of order 41
Section 11(1)(d)
41 rule 11

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Smart Summary

Judgment Summary — Prabha Shankar Mishra, J.

Factual and Procedural Background

The plaintiff-appellant (landlord) sought eviction of the defendant-respondent (tenant) from a portion of Holding No. 36 in Gaya Municipality, let at Rs. 40 per month from 15.9.1967 initially for six months and thereafter continuing as a monthly tenancy. The landlord alleged irregular payment of rent and arrears aggregating Rs. 1626.50 up to 31.1.1974, with no rent paid from November 1971 to January 1974. The tenant asserted that he paid Rs. 240 as advance at the inception of tenancy and that an accounting in November 1974 showed an excess payment of Rs. 625 in his favour; he denied default.

In the trial court (Munsif I, Gaya) an order dated 23.7.1976 under Section 11A of the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 directed the defendant to deposit arrears for Feb. 1974 to June 1976 (Rs. 1,160) within 15 days and to deposit rent monthly by the 15th of the following month. The defendant initially deposited some amounts but later defaulted; the trial court applied Section 11A and struck out the defence qua ejectment and granted a decree for eviction. On first appeal the Additional Subordinate Judge, III, Gaya, dismissed the plaintiff's suit. The landlord then appealed to this Court.

At admission/hearing under Order 41 Rule 11 of the Code of Civil Procedure a single question of law was framed concerning whether the lower appellate court erred in reversing the trial court's findings on arrears and personal necessity. The appellant sought to broaden the hearing by invoking the proviso to Section 100(5) CPC to raise ancillary questions; the Court heard the parties on those points and on four specific contentions advanced by the appellant.

Legal Issues Presented

Whether, once the tenant's defence was struck out under Section 11A of the Act for non-deposit of arrears, any plea by the tenant on eviction can be entertained and whether the lower appellate court erred in holding the Section 11A order illegal and without jurisdiction.
Whether striking out the defence necessarily prevents the tenant from resisting eviction even by asserting that he was not in arrears and that the requirements of Section 11(1)(d) were not complied with.
Whether the court of appeal improperly reversed the trial court's finding on default without considering the trial evidence or meeting the trial court's reasoning.
Whether subsequent defaults by the tenant during the pendency of trial and appeals can be taken into account as a ground for eviction (i.e., whether events after institution can furnish a fresh cause to decree eviction).

Arguments of the Parties

Appellant's Arguments

Once the tenant's defence was struck out under Section 11A, the tenant should not be allowed to advance any plea against eviction; the appellate court erred in holding the Section 11A order illegal and without jurisdiction.
After striking out the defence, the tenant cannot resist eviction even by contending that he was not in arrears of rent or that Section 11(1)(d) was not complied with.
The court of appeal reversed the trial court's finding on default without properly considering the materials and evidence led at trial or meeting the trial court's reasoning.
The tenant subsequently defaulted in depositing rent during the pendency of the trial and the appeals, thereby incurring a disability and becoming liable for eviction; the appellant urged that such subsequent default can be relied upon to obtain eviction.

The opinion does not contain a detailed account of the respondent's legal arguments in the record beyond the tenant's factual assertions (advance payment and continuous payment); the Court summarized the tenant's factual stance but no formalized counter-arguments were set out in detail.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Zafar Alam v. Md. Nizam (1986 P.L.J.R. 333)	Appellate courts should confine themselves to the substantial question formulated at admission; resort to proviso to Section 100(5) is rare and only when a substantial question of law is patent on the record and grave injustice is likely.	The Bench relied on this caution but held that the proviso could be invoked here; the court allowed hearing of additional questions because they were interlinked and denial would cause injustice.
Nagina Ram v. Bishwanath Prasad Khemani (1964 B.L.J.R. 197)	Where defence struck out under Section 11A, defendant is not entitled to cross-examine plaintiff's witnesses at ex parte hearing — analogy drawn with Order 11 Rule 21 CPC consequences.	Cited to explain prior view that striking out defence may prevent cross-examination; the Court contrasted this precedent with later decisions and emphasized limits of that approach under the 1947 Act.
Chaturbhuj Mistry v. Jagan Ram (1967 B.L.J.R. 44)	Section 11A deprives the defendant of certain rights but does not necessarily mean automatic decree for ejectment; plaintiff must still adduce evidence and defendant may prove no arrears.	Relied upon to show that even after striking out defence against ejectment, defendant may still be able to show that no arrears existed and thus defeat ejectment.
Mahabir Ram v. Sheo Shankar Prasad (Full Bench) (1968 B.L.J.R. 447)	Full Bench concurred with Chaturbhuj Mistry: after striking out defence the defendant can still establish that rent was not in arrears, particularly if suit is also for recovery of arrears.	Used to support the proposition that striking out defence does not preclude adjudication on arrears where suit includes recovery of rent.
Lalbibari Tiwari v. Sheo Shankar Prasad (Full Bench) (referenced)	Referenced as taking a differing view in earlier jurisprudence (as mentioned in the opinion).	Mentioned as part of the jurisprudential debate; the Court noted continuing controversy resolved by subsequent Full Bench decisions.
Gulab Chand Prasad v. Budhwanti (A.I.R. 1985 Patna 327 : 1985 PLJR 622)	In absence of specific provision for automatic adjustment of excess rent paid, no automatic adjustment in favour of a defaulter arises under the Act; a defaulter cannot seek double protection by invoking another law.	Cited in discussion on whether a tenant who paid rent in advance can claim adjustment; the Court considered this Full Bench majority view but also noted dissent and later Supreme Court authority.
Sita Ram v. Radha Bai (A.I.R. 1968 S.C. 534)	Principle that where parties are not in pari delicto the less-guilty party may recover money paid under an illegal contract; Supreme Court's guidance on applying in pari delicto.	Referred to as guidance for determining whether landlord and tenant are in pari delicto when illegal advance payments are involved; court used it to distinguish some Full Bench conclusions.
Smt. Kaushalya Devi v. Gopal Ram (1984 P.L.J.R. 467)	Judgment by the present judge outlining exceptions to the rule refusing to enforce an illegal agreement (three categories where recovery may be allowed).	The judge relied on this earlier reasoning to support an exception to the in pari delicto maxim and to conclude tenants may not always be barred from adjustment claims against landlords who received unlawful advance payments.
Md. Salimuddin v. Misri Lal (1986 P.L.J.R. (S.C.) 13)	Supreme Court disapproved treating oppressor and oppressed as pari delicto where tenant advances money in violation of statute; the Court held tenant may be entitled to adjustment.	Invoked to justify not following the Full Bench in Gulab Chand Prasad entirely and to support permitting tenants to claim adjustment in appropriate cases.
Pasupuleti Venkateshwarlu v. The Motor & General Traders (A.I.R. 1975 S.C. 1409)	Appellate courts in the exercise of jurisdiction may consider events subsequent to the decree to mould relief; principle that changes after decree may be considered to do justice.	Used to explain the power to take cognisance of events subsequent to institution or judgment, subject to fairness to both parties.
Patterson v. The State of Alabama (U.S. decision quoted)	Quoted as an authority for the proposition that appellate courts may shape relief by considering changes in fact or law occurring after the judgment under review.	Quoted via Pasupuleti Venkateshwarlu to support the principle that appellate courts can take subsequent events into account when molding just relief.
Annapurna Agrawal v. Jitendra Kumar Sinha (A.I.R. 1964 Patna 215)	Landlord can amend plaint to take into account a ground for eviction that arose during the pendency of the suit, but rules of fair play require opportunity to the tenant to meet such allegations.	Cited to support the proposition that a subsequent ground for eviction can, in principle, be raised by amendment, but the tenant must be given opportunity to defend; used to refuse appellant's immediate reliance on subsequent defaults without giving tenant a chance to contest.

Court's Reasoning and Analysis

The Court proceeded in stages:

On procedural scope: The Court examined the limits of hearing at the Order 41 Rule 11 stage and the proviso to Section 100(5) CPC. It accepted the caution from Zafar Alam that hearing should normally be confined to the formulated substantial question but observed that the proviso preserves discretionary power to consider additional questions when denial of a hearing would produce injustice. The judge therefore allowed argument on four additional questions advanced by the appellant because they were interlinked and refusal to hear them might cause injustice.
On facts: The Court summarized contested facts — tenancy from 1967, rent at Rs. 40, allegation of arrears by the landlord and the tenant's claim of advance payment and subsequent accounting indicating an excess in his favour. It set out the trial court's Section 11A direction of 23.7.1976, the tenant's partial compliance and subsequent defaults, and the trial court's striking out of defence and grant of decree, followed by dismissal on appeal.
On legal effect of Section 11A: The Court analyzed Section 11A's penal consequence of striking out defence for failure to deposit arrears or timely pay monthly rent, noting the statutory consequence places a certain finality on the order and equates the tenant to having not defended the ejectment claim. The Court observed the 1947 Act was later replaced but that the present case must be decided under the old Act.
On ability to contest arrears despite striking out defence: The Court reviewed earlier authorities (Nagina Ram, Chaturbhuj Mistry, Mahabir Ram) and concluded that striking out the defence against ejectment does not necessarily bar the tenant from proving at the hearing that no arrears existed. Where the suit also seeks recovery of arrears, the tenant may still be able to cross-examine and adduce evidence relevant to arrears and ownership. The Court accepted that an order under Section 11A carries significant consequences but that a wholly ultra vires or void ab initio order could be ignored; however, the judge did not go further on invalidity in this case.
On advance payments and "in pari delicto": The Court engaged a detailed statutory and precedential analysis concerning whether advance rent payments received by the landlord should be adjusted against claimed arrears. It examined Sections 3 and 4 of the Act (prohibiting certain advance payments), Contract Act Section 23 jurisprudence, and a line of Patna High Court and Supreme Court decisions. The Court noted the Full Bench view in Gulab Chand Prasad (majority) that absent specific provision for automatic adjustment, tenants cannot claim such adjustment; but it contrasted that view with Sita Ram (SC), the judge's own Kaushalya Devi judgment, and the Supreme Court's Md. Salimuddin decision, to conclude tenants may not always be in pari delicto and may be permitted adjustment in appropriate circumstances.
On application to the instant case: Applying the above, the Court accepted the appellate court's finding of fact that the tenant had paid substantial excess amounts to the landlord which, after adjustment, left no rent in arrears on the date of institution of the suit. Given that factual finding in the tenant's favour, the appellate court did not err in dismissing the suit. The Court held that striking out defence qua eviction cannot automatically mean a decree to eject without proof of arrears and ownership.
On subsequent defaults during pendency: The Court acknowledged the general principle (citing Pasupuleti and Patterson) that courts can take cognisance of events subsequent to institution of proceedings and may mould relief accordingly, subject to fairness. However, on the facts the Court declined the appellant's invitation to treat defaults during pendency as automatically furnishing a ground to evict. The reasons given were (a) the necessity of accounting and adjustment of the excess sums paid to the landlord before any conclusion on arrears can be drawn; (b) issues of limitation and whether the claimed subsequent arrears give rise to a legally available cause of action; and (c) the tenant's right to an opportunity to meet allegations — hence the appellant should not be permitted to rely on those subsequent defaults without affording the tenant a fair chance (including amendment of plaint and giving the tenant an opportunity to defend).
Remedies: The Court observed that the appellant remains free to institute a fresh suit on any available cause of action or to seek amendment to the plaint (subject to procedural rules and fair opportunity), rather than secure eviction on the basis of ex parte or untested allegations of subsequent default.

Holding and Implications

Holding: The appeal is dismissed.

Direct consequences and implications (as recorded in the opinion):

The appellate dismissal of the landlord's suit is upheld; the decree of the trial court for eviction is not sustained by this Court.
There shall be no order as to costs.
The appellant (landlord) is at liberty to institute a fresh suit on any cause of action that may be available to him or to seek amendment/relief through appropriate procedural steps, subject to the tenant's right to defend.

The Court emphasized that striking out the defence under Section 11A does not invariably result in an automatic ejectment decree without proof of arrears and ownership; further, subsequent defaults during pendency cannot be invoked for eviction without due accounting, consideration of limitation and fair opportunity to the tenant. The opinion did not purport to lay down a novel binding precedent beyond its application of established authorities to the facts of the case.

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Sheolal v. Anantdeo Mishra

Prabha Shankar Mishra, J.:— The land-lord appellant who has sought eviction of the defendant-respondent from a building let out to him on rent has appealed. Although at the hearing of the appeal Under Order 41 rule 11 of the Code of Civil Procedure the only question of law framed was whether the court of appeal below has committed error of law in reversing the finding of the trial court on the question of arrears of rent and personal necessity in so far as the default and eviction of the respondent is concerned, when the defence stood struck out for non-compliance with the order of depositing arrears of rent under section 11A of the Bihar Building (lease, rent and eviction) Control Act, 1947 (hereinafter to be referred to as the Act) and the learned counsel for the appellant has confined the hearing of the appeal to the question of default only he has broaden the issue by adding certain ancillary and consequential contentions. He has, accordingly convassed before me that (1) on the defence of the defendant tenant having been struck out any plea qua eviction on his behalf is not entertainable; the court of appeal below has committed error of law in holding that the order under section 11A of the Act was illegal and without jurisdiction and so the tenant cannot be denied his defence qua eviction for the reason that he defence in depositing rent as directed by the trial court. (2) the orders striking out the defence having striken the tenant, he in no case could resist eviction even by suggesting that he was not in arrears of rent and the requirements of Section 11(1)(d) of the Act are no complied with. (3) the court of appeal below has reversed the finding of the trial court on the question of default without either considering the materials and evidence which were led before the trial court or without meeting the reasonings adopted by the trial court to hold that the tenant had defaulted in paying rent to the land-lord. (4) the tenant having admittedly defaulted in depositing rent during the pendency of the trial and thereafter during the pendency of the appeal in the court below and appeal in this Court, has evidently incurred the disability and become liable for eviction. Although, as I have already noticed, the question framed at the time of hearing of the appeal under Order 41 rule 1: of the Code of Civil Procedure is not that elastic to admit into it all that is sought to be convassed by the learned counsel appearing for the appellant since he has sought permission to raise these questions which were not considered at that stage and prayed to invoke the Court's jurisdiction preserved by the proviso to Section 100(5) of the Code of Civil Procedure, I have heard the parties on all these aspects.

2. In Zafar Alam Versus Md. Nizam (1986 P.L.J.R 333) a Division Bench of this Court has expressed that court hearing appeal has to confine itself to substantial so formulated at the time of admission and only in rare cases where substantial question of law is so patent on the face of record and grave injustice is likely to follow that resort to the proviso to Section 100(5) should be taken. The amendment which given the present shape to section 100 including the proviso to sub-section 5 there of has come as a result of various considerations and recommendations including the report of the Law Commission (54th report at page 17-87). The Law Commission was of the view that there should be stricter and scrutiny and instead of appeal as a right on any substantial question of law, should be subject to special Lave. The legislature, however, thought it better to preserve the Court's descretion to hear the appeal, but placed injunction to keep the hearing confined to the question formulated by it at the hearing of the appeal under order 41 rule 11. The proviso to sub-section 5 of section 100, has, however, been kept as the repository of judicial deselection for reasons to be recorded; the power although not unbridled, yet enough to impress all such questions which deserve consideration to subserve the ends of justice. The caution that the Division Bench, has administered, since I am in agreement that caution should be exercised is nothing beyond reminding that a hearing to the appellant at the stage of Rule 11 of order 41 for all purposes is enough except the question on which the Court desires to hear the respondent; but formulation of a question of law at that stage cannot be allowed to deny a hearing on questions other than one framed if the Court is satisfied that such denial shall cause injustice. Ritualistic adherence to the formulation which may have the effect of shifing the course of justice can never be desirable. Having understood the scope of law and having heard the learned counsel for the appellant and the learned counsel for the respondents, I am of the view that the parties should be heard on all the four questions that have been formulated by the learned counsel for the appellant, least the appellant may not feel that he has been denied a hearing which could give him relief. Since I propose to go into these questions and I have heard the learned counsel for the appellant and the learned counsel for the respondent in some detail, I don not propose to embark any further into the reasons that I record for hearing the parties on questions other than one formulated at the hearing of the appeal under order 41 rule 11 as in my considered view they appear to be interlinked and overlaping each other.

3. Having thus entered into the questions, before I predicate, I propose to state the relevant facts. The plaintiff-appellant's case is that he and his family consisting of himself and his sons is the owner of Holding No. 36, ward no. IV in Muhalla Makhlotganj within Gaya Municipality. The defendant-respondent took a portion of the said holding on rent at the rate of Rs. 40/- per month on 15.9.1967 initially for six months. After the expiry of the said period of six moths, however, the defendant continued to occupy the said premises as monthly tenant at the same rate of rent. The defendant was, however, irregular in paying rent and paid rent at his convenience after committing default and violating the mandate under Section 11(1)(d) of the Act. Untill 31.1.1974 a sum of Rs. 1626.50 paise had fallen due to the plaintiff from the defendant. A sum of Rs. 566.50 paise was due prior to November, 1971 and from November, 1971 to January, 1974 he paid no rent inspite of repeated demands. The defendant, however, has said that the house which was taken on rent for a period of six months continued in his tenancy as the same was renewed after its expiry. According to him at the inseption of tenancy he paid a sum of Rs. 240/- as advance towards rent to the plaintiff. In November, 1974 when accounting was done, it was found that there was an excess payment of Rs. 625/- from the defendant to the plaintiff. The defendant never defaulted and paid rent each month and more so in advance to the plaintiff.

4. On an application by the plaintiff in the suit trial court made an order on 23.7.1976 directing the defendant to deposit the arrears of rent from February, 1974 to June, 1976 amounting to Rs. 1160/- within 15 days from the date of the order (as provided under section 11A of the Act) and further directing him to deposit rent for each month at the rate of Rs. 40/- by the 15th of the following month. The defendant, however, after depositing the arrears and rent for some months defaulted in depositing rent each month as directed by the trial court. On such default by him the consequence provided under section 11A was applied and the trial court recorded the order striking out the defence of the defendant-respondent. The learned Munsif, 1 Gaya granted to the appellant a decree for eviction but on appeal the learned Additional Subordinate Judge, III, Gaya has dismissed the plaintiff's suit. Hence the appeal.

5. Section 11A of the 1947 Act has got a penal clause which says, “on failure of the tenant to deposit the arrears of rent within 15 days of the date of fie order or the rent at such rate for any month by the 15th day of the next following month the court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment.” The said Act has since been repealed and replaced by Bihar Act 43 of 1981. The new Act has besides the said provision added

“And further the court shall not allow the tenant to cross-examine the land-lord's witnesses.”

6. Significance of this amendment can be well realised by appreciating the scope of the words, “the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he has not defended the claim to ejectment.” Since this case concerns an order passed under 1947 Act, the new provision aforesaid shall not inhibit the case. In Nagina Ram v. Bishwanath Prasad Khemani (1964 B.L.J.R 197) a Division Bench of this Court some how took the view that where on failure to deposit arrears of rent as directed by the court, the defence is struck off with regard to the claim for ejectment and the suit is fixed for ex-parte hearing the defendant is not entitled to cross-examine any witness who might be produced on behalf of the plaintiff. The learned judges said, “the language of section 11A of the Act is practically identical with the language of Order 11, rule 21, of the Code of Civil Procedure. It is well established by authorities that the failure on the part of the defendant to comply with an order of discovery of documents under the provision of order 11, rule 21 Code of Civil Procedure results in an order of the court striking off the defence, and the consequence of such an order is that the suits is transferred from the list of defendant suits to the list of undefended suits and the plaintiff is entitled to apply to the court for making an exparte decree against the defendant. In the circumstances of the case the trial court was right in holding that the petitioner was not entitled to cross-examine any witness who might be produced on behalf of plaintiff after his defence was struck off.”

7. In Chaturbhuj Mistry v. Jagan Ram (1967 B.L.J.R 44) H. Mahapatra and A.B.N Sinha, JJ. however, stated the law in the following words:

“The provisions under section 11-A are clear, and there is no ambiguity left in regard to what the defendant, in an action for ejectment, will be deprived of on account of his failure to comply with an order for deposit of rent as made under that section. It is true that, in some cases, the defendant may be exposed to some hardship; but if that was what was intended by the specific provisions as laid down under that section by the Legislature, it cannot be helped. It may be suggested on behalf of the defendants opposite party that a defendant who has been sued for ejectment by the plaintiff asserting that the defendant was a tenant under him, on the ground that the defendant defaulted in paying the rent consecutively for two months, can challenge that no arrear rent was due from him and can also contest the plaintiff's title to the suit house. He will be placed in a great predicament in case his defence is struck out under section 11A, and he still succeeds in proving to the court's satisfaction that no arrear rent was due from him. We do not think that there will be any hardship to the defendant in such a case at all. His defence in regard to arrears of rent as claimed by the plaintiff will still be available to him to substantiate during the trial, and, if he does so, the court will come to the conclusion that no arrear rent was due to the plaintiff. Although the defendant's defence about ejectment is struck out, the court will not necessarily pass a decree for ejectment in all cases. Even where the defence is struck out, the plaintiff will still be required to adduce evidence in support of his claim. If his evidence falls short or if evidence of the defendant in regard to matters other than ejectment leads the court to the conclusion that none of the grounds mentioned in section 11 for ejectment is present in a particular case, the plaintiff will not succeed in getting a decree for ejectment. It cannot, therefore, be said that the provisions under section 11-A are utterly and always to the disadvantage of the defendant tenants.”

8. The learned judges, however, made a reference to the case of Lalbibari Tiwari v. Sheo Shankar Prasad (Full Bench) which according to them had taken the view. The controversy, however, still persisted and matter again was brought before a Full Bench in Mahabir Ram v. Sheo Shankar Prasad; (1968 B.L.J.R 447). The Full Bench expressed complete concurrence with the views expressed in Chaturbhuj Mistry v. Jagan Ram and added.

“In view of the observations, quoted above, there can be no doubt that even after striking out of the defence against ejectment, it is open to the defendant (tenant) to establish at the hearing of a suit that in fact rent was not in arrears provided the suit is for the realisation of arrears of rent also.”

9. It is not in controversy that the instant suit has be none for ejectment of the tenant on the ground of default and personal necessity as well as the arrears of rent. Notwithstanding the order striking out the defence qua eviction, the tenant could cross-examine the land-lord's witnesses on the questions of arrears of rent and disputes regarding title and relationship of land-lord and tenant. The position under the new Act, has changed and the injunction not to allow the tenant to cross-examine the landlord's witnesses may affect the defence a little more. But effect of the new injunction is yet to be considered in an appropriate case. The instant case is one which has to be decided as if the old Act is still in force.

10. It is not necessary after noticing the law that even if defence qua eviction is struck off, it is still open to a tenant to show that he had not fallen in arrears of two month's rent payable by him to the land-lord and the landlord is required to show that his tenant had been in arrears of two month's rental payable to him, to examine the contention of Mr. Sinha whether it was open to the Court to go behind the order passed under section 11A and hold that since such order was illegal and without jurisdiction, the defence against ejectment may not be deemed to have been struck out. Still since the learned Addl. Subordinate Judge has recorded a finding in this behalf, I may make some observations. No doubt there is some sort of finality to the order under section 11A and since a consequence has been provided, it has to take its effect. In that sense once the order under section 11 A is made, and not challenged in accordance with law before a superior court, at the hearing of the suit, nothing with regard to the validity or legality of the said order can be examined. But there may be a case in which the order so made is wholly without jurisdiction and void abinitio. There may be several types of orders falling in this category. An apt illustration of this may be a case in which the plaint made in reference of any arrears yet the court directed deposit of certain arrears or a claim which was barred by the law of limitation. It is a settled law that an order which is non-est is fit to be ignored. A non-est order has got no effect, no consequence and stands no where. The order which the learned Munsif made under section 11A of the Act, as it has been commented upon by the learned Subordinate Judge, may fall in one such category. Once this view is taken, a court may legitimately hold that the order striking out the defence is fit to be ignored and thus the entire defence is open including the defence qua eviction. I do not, however, propose to predicate any further because even assuming that the defence qua eviction was rightly struck out, since the suit is also one for arrears of rent, the defendant could cross-examine the witnesses to show that he had not been in any arrears of rent and on the plaintiff's failing to prove that there had been default in payment of two month's rent as envisaged by Section 11(1)(d) of the Act the suit could fail. The conclusions drawn on the basis of the facts by the learned Subordinate Judge, in my view, can be supported by applying the principle that striking out defence qua eviction can not mean a decree to eject without proof of arrears and ownership of the building.

11. Mr. Sinha has also attacked the finding of the court appeal below that there had been no arrears of rent. According to him the learned Subordinate Judge has travelled beyond the scope of law by accepting the defendant's case that the rent had been paid in advance, which advance payment the defendant was entitled to adjust. There can be little doubt that a tenant is required to pay rent month to month if there is no contract to the contrary. Section 3 of the Act says that it shall not be lawful for any person to claim or receive any consideration of the grant, renewal or continuance of tenancy of any building, the payment of any premium, salami, fine or any other like sum in addition to the rent or the payment of any sum exceeding one month's rent of such building as rent in advance. It has thus affirmed that it shall always be lawful for a tenant to pay each month's rental and unlawful for a land-lord to realise rent in advance exceeding one month's rent. Section 11(1)(d) has also sanctioned the said scheme but prescribed that the amount of two month's lawfully payable by tenant and due from him 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 shall alone invite action for ejectment. There has been quite a few conservative interpretations given to this provision of law in some cases by the learned single judges, in some cases by Division Benches and in one case by a hull Bench. Cases in which the tenants came forward with the pleading that they had paid rent in advance to the land-lord and the courts found that such payments in advance were received by the landlords were decided holding that such advance payments were in the teeth of Section 3 and 4 of the Act and accordingly hit by Section 23 of the Contract Act and attracted the maxim “in pari delicto potior est conditio possidentis.” In Gulab Chand Prasad v. Budhwanti (A.I.R 1985 Patna 327 : 1985 PLJR 622.) the Full Bench by a majority has said,

“In the absence of any specific provision in the Act itself providing for automatic adjustment of excess rent paid against the monthly rent itself, no question of such an adjustment against the rent due could arise in favour of the defaulter under the Act nor could such a defaulter seek such a relief or a double protection of invoking the provisions of another law.”

12. In his desent, however, without recording any opinion, a learned single Judge has said:—

“I concur in decision on all the points except on the application of the rule of in pari delicto in the case on which question I reserve my opinion.”

13. It is of some significance to notice that the Full Bench has made a reference to a large number of cases on the point including the judgment of the Supreme Court in Sita Ram v. Radha Bai (A.I.R 1968 S.C 534). In the majority judgment where the Supreme Court judgment has been referred to it has been observed, “In taking the view which it did, the first appellate court sought tenuous aid from Sita Ram v. Radha Bai, (A.I.R 1968 S.C 534). That case is plainly distinguishable and indeed of no relevance on the finding aforesaid. Its true import seems to have been misunderstood by the learned judge. What their lordships have ruled therein was that where parties were not in pari delicto, the less guilty party may be able to recover money paid under a contract. Plainly enough this observation only covers cases where the first finding arrived at was that the parties were not in Once that finding has been arrived at no question of the three situations by their Lordships at all arises.”

14. The principle of “in pari delicto potior est conditio paridentis when examined in the light of the provisions in sections 3 and 4 of the Act, in my judgment, give a different result. Judgment of the Supreme Court in Sita Ram's case provides the required wisdom to test whether the land-lord and tenant are in pari delicto or not. Evidently majority in the Full Bench could not see that light in Sita Ram's case except that the court will refuse to enforce an illegal agreement. In a judgment by me in the case of Smt Kaushalya Devi v. Gopal Ram (1984 P.L.J.R 467) I have noticed the law and said:—

“The principle that the court will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is invariably not applied to the cases failing into the following three categories:—

(i) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherence of it;

(ii) where the plaintiff is not in pari delicto with the defendant; and

(iii) where the plaintiff or defendant does not have to rely on the illegality to make out his claim.

15. The Supreme Court has said that the less guilty party may be able to recover money paid on property transferred even under illegal contract if the contract is of a kind made illegal by statute in the interest of a particular class of persons of whom the party concerned is one. A mere glance to the language of the prohibition in sections 3/4 of the Act is enough to conclude that it is a law made for the protection of the interest of the tenant and operates as prohibition against the landlord. A land lord receiving money in advance to wards future rent from a tenant commits a wrong but a tenant although a party to the illegal agreement may not be denied the claim of adjustment of the advance rent by him lest denial of his claim may not amount to a premium upon the recalcitrance of the landlord.” Following the said reasoning I have concluded my judgment saying:

“In my considered view this case is evidently one which shall fall in the exception and escape the maxim as tenants in the instant case are not pari delicto with the landlords.”

16. Smt. Kaushalya Devi's case, however, was not cited before the Full Bench. I would have been constrained to follow the Full Bench, but for the judgment of the Supreme Court in the case of Md. Salimnddin v. Misri Lal (1986 P.L.J.R (S.C) 13). The Supreme Court has said:

“One cannot conceive of greater judicial sin of treating the oppressor’ and the ‘oppressed’ on a par or that of rewarding the ‘oppressor’ and punishing the ‘oppressed’ whilst administering the law designed to protect the oppressed. We would be guilty of committing this sin if we uphold the view that the tenant who advances a loan to the landlord in order to secure the tenancy (in violation to the prohibition to do so embodied in the statute enacted for his benefit) is in pari delicto; and that the court will not assist the tenant in claiming adjustment of the loan amount against the landlord's claim for rent.”

17. It has said so over ruling a judgment of this court which had followed the judgment of the Full Bench.

18. I have discussed the cases on the question whether a tenant whose defence qua eviction has been struck off can still maintain that he is not a defaulter and is not in arrears of rent and the question whether he can claim adjustment of the rent paid in advance or not only to emphasise the object for which the Act has been made. The object stated by Legislature is to regulate the letting of building and the rent of such building and to prevent unreasonable eviction of tenant therefrom in the State of Bihar. Having once acknowledged this as the key to the under standing of the law in various of the meaning given to Section 11(1)(d) says;

“Where the amount of two months rent lawfully payable by tenant and due from him is in arrears by not having been paid within the time fixed by contract or in 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.”

19. It has thus laid down that, if a tenant does not pay the rent of the house he resided in for two months, the rent would fall in arrears and if the arrear rent of two months is not paid by the end of the third month following the second month the tenant would become a defaulter. The rent lawfully payable by tenant and due from him will have no independent meaning except one in conjunction with the prohibition prescribed by sections 3 and 4 of the Act. Rent lawfully payable will only be in arrears when there is no money of the tenant in the hands of the landlord. In other words, if the landlord is found to have received rent in advance, until the advance is fully adjusted, there shall be no rent in arrears. Proceeding with this as the premise what follows is in my view, the law that the landlord must establish that there were no advance payments by the tenant to be adjusted and that the tenant did not pay rent for two months and failed to pay the arrears in the month following. The pleading in the instant case leads to only one conclusion—the landlord has said that the tenant had fallen in arrears by not paying rent from November, 1971 to January, 1974; the tenant has said that he paid a sum of Rs. 240/- in advance at the inseption of the tenancy and paid rent each month and sometimes in advance but never defaulted—obviously according to the tenant he has been entitled to adjustment and according to the landlord he has not been. The court of appeal below has recorded a finding of fact in favour of the tenant and said that he had paid rent in advance and was not in arrears on the date of institution of the suit. On the said basis, thus, it has only to be said that the tenant can not be asked to suffer for the sin that the landlord committed by realising rent in advance in excess of the permissible limit. Since after adjustments there was no rent in arrears, the court of appeal below has committed no error in dismissing the suit.

20. Mr. Sinha has also contended that since admittedly the tenant-defendant has paid no rent for quite a few months during the pendency of the suit and similarly for quite a few months during the pendency of the appeal in the court below as also during the pendency of the appeal in this Court, he has defaulted in payment of rent for several months, much in excess of two months rent lawfully payable. According to him for the said reason, the respondent has become liable to be evicted. He has submitted that this subsequent event of the tenant having fallen in arrears of rent for more than two months can be taken notice of and the suit be decreed.

21. It is well settled that the court can and in many cases must take cognizance of events and developments subsequent to the institution of the proceeding. But in doing so the court is obliged to see that rules of fairness to both sides are scrupulously obeyed. In Pasupuleti Venkateshwarlu v. The Motor & General Traders (A.I.R 1975 Supreme Court 1409) following a decision of the Federal Court and quoting from it the rule adopted by the Supreme Court of The United States in Patterson v. The State of Albama, the Supreme Court has said:—

“We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered”, and

“It is also on the theory of an appeal being in the nature of a rehearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.”

22. The Supreme Court has pointed out—

23. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. But at the same time it has said:—

“Equally clear is the principle that procedure is the hand-maid and not the mistress of the judicial process. Equity shall always justify bending the rules of procedure, where no specific provision or fairplay violated.” and

“If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.”

24. It is stated in the instant case that an application under section 15 of 1982 Act has been filed before this Court which application has not been disposed of. The said application has been made for a direction to the respondent to deposit the arrears of rent and current in accordance with law during the pendency of the appeal. True, at one stage in the trial court a direction came to the tenant-defendant to deposit the arrears of rent and current rent in accordance with law. He after making initial deposit for some months, stopped depositing and incurred the consequence of striking out his defence qua eviction. As he then for the said violation incurred the liability his defaults during the pendency of the trial and subsequent thereto have also provided, according to the learned counsel for the appellant, a case to seek his eviction. Clearly as laid down by the Supreme Court a default during the proceeding may be a cause for action and the appellant as the landlord may use that cause to evict the defendant. But on the facts of this case the answer is not easy. I am inclined to hold that the appellant should not be permitted to use any default during the pendency of the suit and the appeals as a cause to evict the tenant. The first reason for not permitting him to do so is that what amount was in arrears and from which date the default started are to be determined by accounting for the excess money paid by the tenant to the landlord. A specific finding has been recorded by the court of appeal below that a substantial amount of money was received by the landlord from the tenant in excess of the rent payable for one month. It cannot be said that a cause has become available to the landlord to evict the tenant without adjusting the said amount. The amount in the hands of the land-lord apart, 3 controversy has arisen as to whether there had been a claim which had become by law or not. The court will be required to determine whether on the basis of a claim which has become barred by limitation allegation of default and consequent eviction can be raised or not. There is one more reason, which in my view is equally pertinent. The defendant as a tenant has to be granted the right to meet the allegation that he has fallen in arrears and thus become a defaulter. Opportunity for that can be provided if there is any application to ammend the plaint. The appellant can ask for a decree on the basis of a new cause. But the Respondent's right to defend himself shall detain a court from proceeding on the exparte allegations of the appellant landlord A.K Sinha. J in Annapurna Agrawal v. Jitendra Kumar Sinha (A.I.R 1964 Patna 215 : 1984 PLJR 395) has said:—

“A ground on which the suit for eviction was not initially instituted, but if that ground being a ground for eviction under the Act and being available to the landlord during the suit, can be allowed to be the landlord during the pendency of the suit and the land-lord can legally ask the court to allow amendment of the plaint taking into account the subsequent event after the institution of the suit and can legally press into service for the relief of eviction of the tenant on that ground (which is one of the grounds for eviction under the Act.)”

25. This, perhaps, can provide to the tenant-respondent opportunity to come forward with his return and the court can on that basis find whether any cause has become available to the land-lord or not. Whether a certain ground can be intertained or not is onequestion and whether the ground is sustainable or not is another question. The rule of fair play shall require giving opportunity to the parties to lead evidence and prove the case in which the factum of default can legitimately be contested by the tenant, it will not be fair in my view to allow the appellant to raise such a question.

26. I have given my anxious consideration and recorded my opinions on the questions raised on behalf of the appellant. For the reasons aforesaid the appeal has to fail. The appeal is accordingly dismissed. There shall, however, be no order as to cost. It shall be open to the appellant to institute a fresh suit on any cause of action that may be available to him.

Sheolal v. Anantdeo Mishra

Judgment Summary — Prabha Shankar Mishra, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sheolal v. Anantdeo Mishra

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