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Manickchand Durgaprosad and Bros. Vs. Balukidas Baheti - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 373 of 1959
Judge
Reported inAIR1969Cal104
ActsWest Bengal Tenancy Act, 1956 - Sections 21, 21(1), 21(4), 26(2) and 26(4)
AppellantManickchand Durgaprosad and Bros.
RespondentBalukidas Baheti
Appellant AdvocateLala Hemanta Kumar, ;Brijmohan Bagaria and ;Jaimangal Prosad Srivastava, Advs.
Respondent AdvocateC.C. Ganguli and ;Amiya Kumar Chatterjee, Advs.
Disposition Appeal allowed
Cases ReferredKabiraj Srinarayan Sarma v. Baijnath Bhartia
Excerpt:
- .....under law, deposited rent for the months of jaistha and ashar, 2013 s. y. in the office of the rent controller, calcutta, on 1st september, 1958 and continued depositing rents month by month. in the meantime, the defendant came to know after a correspondence with the postal authorities that the remittance made by the defendant on 28th june, 1956, had been delivered to the plaintiffs on 30th june, 1956. therefore, there was really a case of double payment of rent for the month of jaistha, 2013 s. y, after the filing of the suit the defendant deposited the rent for the month of shravan, 2015 s. y. in court within time after service of summons upon him. the defendant claims that by way of adjustment all deposits made by him in the office of the rent controller are to be treated as.....
Judgment:

Arun K. Mukherjea, J.

1. This is a landlord's appeal agaist a judgment and decree dated 30th May, 1959, of the Judge, Third Bench of the City Civil Court at Calcutta by which the plaintiffs' suit for eviction of the tenant-defendant on the ground of default in payment of rent was dismissed.

2. The facts of the case are as follows: The defendant was a monthly tenant under the plaintiffs in respect of one room namely room No. 52 on the fourth floor of premises No. 5, Jadunath Mullick Road, Calcutta, at a monthly rental of Rs. 33/-. The tenancy was according to the Hindi Sambat Calendar month and it ran from Badi 1 to Sudi 15 of each such month. The plaintiffs complained that the defendant was a habitual defaulter and in any event had made default in payment of rent for four months within a period of twelve months since the month of 'Jeth, S. Y. 2014'. The plaintiffs determined the tenancy of the defendant by a notice of ejectment dated 5th May, 1958, addressed by their Solicitor Mr. B.M. Bagaria. By that notice the defendant was asked to quit, vacate and deliver up peaceful possession of the room 'with the expiry of the next month' i.e., Ashar Sudi 15, S. Y. 2015. Thereafter when the defendant failed and neglected to deliver up peaceful possession of the room the plaintiffs filed the suit.

3. The defendant in his written statement contends that there was in fact no default. He says that he paid rent to the plaintiffs directly upto the month ofChaitra, 2012-13 S. Y., i.e., upto Chaitra Sudi 15, 2013 S. Y. Subsequent to that payment there was, he complains, some dispute between himself and the plaintiffs who refused to accept rents direct from the defendant by presentation of bills. The defendant then remitted the rent for the month of Baisakh, 2013 S. Y. by money order and the same was accepted by the plaintiffs. The defendant then remitted rent for the month of Jaistha, 2013 S. Y. on 28th June, 1956 for which, however, he did not receive the postal receipt. Nor did the money come back to him. As the defendant was not sure whether the money had reached the plaintiffs he, in order to protect his interest under law, deposited rent for the months of Jaistha and Ashar, 2013 S. Y. In the office of the Rent Controller, Calcutta, on 1st September, 1958 and continued depositing rents month by month. In the meantime, the defendant came to know after a correspondence with the postal authorities that the remittance made by the defendant on 28th June, 1956, had been delivered to the plaintiffs on 30th June, 1956. Therefore, there was really a case of double payment of rent for the month of Jaistha, 2013 S. Y, After the filing of the suit the defendant deposited the rent for the month of Shravan, 2015 S. Y. In Court within time after service of summons upon him. The defendant claims that by way of adjustment all deposits made by him in the office of the Rent Controller are to be treated as deposits for the months next to the months for which the deposits are purported to have been made. Therefore, though the defendant deposited rents in the office of the Rent Controller upto the month of Ashar, 2015 S. Y. In fact those deposits should be treated as deposits upto the month of Shravan, 2015 S. Y. On these facts the defendant claims that he cannot be treated as a defaulter.

3-A. The following issues were framed for determination:--

1. Is there any relationship of landlord and tenant between the parties?

2. Is the defendant a defaulter in payment of rent from Jeth 2014 S. Y. (May/ June, 1957)?

3. Has the defendant's tenancy been determined by a legal and valid notice to quit? is the said notice legal, sufficient and operative in law?

4. Are the plaintiffs entitled to a decree prayed for?

4. At the first hearing of the suit on 30th April, 1959 the defendant filed a petition for adjournment of the suit. The defendant told the learned Judge that he wanted to get the challans which had been sent up by the Rent Controller to be rectified by him. The rectification that the defendant sought was in accord-ance with the suggestion made by the defendant in his written statement that all deposits of rent with the Rent Controller were to be regarded as deposits of rents for the months next to the months for which they had purportedly been made. These corrections, the defendant says, were necessary to adjust the double payment that he had made for Jaistha, 2013 S, Y. The learned Judge adjourned the case in pursuance of the defendant's request and observed as follows:--

'The legal effect of correction, if the challans are corrected, would be considered in due course. For the present, 1 am giving this opportunity to defendant in terms of his petition.'

5. It appears that the challans were Bent back to the Rent Controller for correction and that they were subsequently received back by the Trial Judge after correction. Thereafter the suit was heard. Durgaprosad Saraogi gave evidence for the plaintiffs and complained that the defendant had defaulted in payment of rent from Jaistha, S. Y. 2014. He admitted that he had received the rent for Jaistha, 2013 S. Y. by money order and also that he had withdrawn money from the Rent Controller upto Baisakh Sudi, 2014 S. Y. The defendant himself gave evidence and said that he had remitted rent for Jaistha, 2014 S. Y. and that the plaintiff had accepted it. He tendered the postal receipt dated 6th June, 1956 (Exht. B) to show that the plaintiffs had receiv-ed this sum. The defendant says that he again deposited rent for the same month not knowing that the plaintiffs had got it in time and thereafter the defendant deposited all subsequent rents regularly before the Rent Controller and got challans therefor. In cross-examination he says that he remitted rent for Baisakh, S. Y. 2013 by money order as the plaintiffs had not accepted it amicably. He also says that he deposited the rent for Jaith, 2013 S. Y. as this also the plaintiffs had refused to accept. The learned Trial Judge found Issue No. 1 and Issue No. 3 in favour of the plaintiffs but he came to a finding that the defendant was not a defaulter.

6. The facts about payment are, more or less, admitted. The only point is controversy is the legal effect of the later corrections in the challans. The learned Judge has accepted the corrections and has appropriated the payments of rent notionally to the months that have been inserted in the challans by the corrections. On the basis of such corrections and adjusted appropriations, the learned Judge came to the finding that the defendant was not a defaulter and that on the other hand the defendant had deposited rents in advance. Before coming to this conclusion the learned Judge had found on the facts and on the basis of the challans, as they stood before correction, that if no allowance be made for the double payment for Jaith, 2013 S. Y., there would be the following defaults:--

MonthMeasure of default

Jaistha. 2014 S. Y. (May/June, 1957)28 days.Shravan, 2014 S. Y. (July/August, 1957)10 days.Bhadra, 2014 S. Y. (August/September, 1957)3 days.Pous, 2014 S. Y. (December, 57/January, 58)11 days.Magh, 2014 S. Y. (January/February 1958)14 daysFalgun, 2014 S. Y. (February/March, 1958)14 days.Chaitra. 2014 S. Y. (March/April), 1958)12 days.

7. The learned Judge thought that by adjusting the double payment for Jaistha, 20i3 S. Y. I.e., by appropriating the second payment for Jaistha, 2013 S. Y, towards the month of Ashar of that year and consequently the payments for Ashar, Shravan, Bhadra, etc., towards the months of Shravan, Bhadra, Aswin respectively and so on for all successive months, the defaults would automatically be wiped out because each subsequent payment would have to be appropriated to a month preceding the month for which the rent had actually been paid. By these notional adjustments defaults would be transformed into advance payments.

8. With great respect to the learned trial Judge we do not see under what law the learned trial Judge could allow the notional adjustments. The adjustmentswere, of course, made on the basis of the corrected challans. The challans, we are told, had been corrected by the Deputy Controller. Exhibits C and C(l) to C(23J are the twenty-four challans which had been tendered in evidence before the learned trial Judge. The challans are not in paper book but the facts recorded in the challans have been summarised in a tabular form and appear in the paper book from pages 7 to 17. In the column relating to the period to which a particular deposit of rent relates the name of the month originally inserted in each of the challans was penned through and the name of the next month inserter therein. The corrections are alleged to have been made by the Deputy Registrar's order dated 18th May, 1959. There la nothing on record to show who authorised the Deputy Registrar to make thesecorrections in the challans. Under Section 26 (2) of the West Bengal Premises Tenancy Act, 1956, {hereinafter referred to as 'the Act') the State Government may by notification appoint any person to be a Registrar or Deputy Registrar for any area to which this Act extends. Presumably, the 'Deputy Registrar' referred to in the corrections made on the challans is the functionary appointed by notification in exercise of the powers conferred upon Government under Section 26 (2) of the Act. There can be no doubt that the Deputy Registrar is a creature of the statute and can only exercise those functions which have been given to him by the statute. Under Section 26 (4)' of the Act a Deputy Registrar can exercise only such functions of the Controller relating to the rent deposited under Section 21 of the Act as may be delegated to him by the Controller in writing. Therefore, before we can rely on the corrections made by the Deputy Registrar it is necessary to have evidence that an order had been passed by the Controller delegating this function to the Deputy Registrar. No such order has been produced before us on behalf of the respondent though we adjourned this matter and gave time to him to produce evidence of such delegation. We even offered to send a subpoena from the Court if the respondent could give us particulars of such an order of delegation. In any case, any order of delegation even if such order existed would, in our opinion, be useless, for, there is nothing in the Act which gives any power even to the Controller himself to make corrections in challans and vary the appropriation of the rent to a month other than what is mentioned in the application. Rents, before they can be deposited with the Rent Controller, have always to be accompanied by applications showing certain particulars which are specified in Sub-section (2) of Section 21 of the Act which runs as follows:--

'(2) The deposit shall be accompanied by an application supported by an affidavit by the tenant stating-

(a) the premises for which the rent is deposited with the description sufficient for identifying the premises;

(b) the period for which the rent is deposited;

(c) the name and address of the landlord, or the person or persons claiming to be entitled to such rent;

(d) the reasons and circumstances for the application for deposit of the rent: Provided that in the case of deposits of rent for successive months during an continuous period, no affidavit in support of applications shall be required after the first deposit if the reasons and circumstances which led the tenant to make the first deposit remain the same.'

9. The period for which rent is deposited on any particular occasion has to be specifically mentioned in the application. Under the provisions of sub-section (4) of Section 21, an authenticated copy of such application is admissible is evidence in all Courts of law. Obviously, the Act clothes these applications with some amount of sanctity and inviolability. The applications cannot, therefore, be changed or altered by the Deputy Registrar or by any other party. Indeed, it is not the case of anybody in this appeal that the applications of the respondent have been corrected or changed. Some of the applications are to be found in the second part of the Paper Book at pages 18 to 25. They do not show any corrections. It is not appreciated, therefore, how without making corrections in the applications, corrections or changes can be made in the challans. I would think, however, that even the applications cannot be corrected by the Deputy Registrar. In any event, I cannot imagine the Deputy Registrar correcting these applications ex parte in the absence of the landlord where the landlord is vitally interested in the data appearing on the applications and where under the Act itself the applications are admissible in evidence in all Courts of law. To say that the Controller could have the power of merely correcting the challans without correcting the applications and that too on the unilateral application of the tenant is, according to me an absurd suggestion. Therefore. I have not the slightest doubt that there was no justification for the learned trial Judge in accepting the corrections of the challans and changing by an artificial fiction the character of the defaults made by the tenant and investing them with the character of 'advance deposits'. These are not, however, the only difficulties that face the respondent in regard to these corrected challans. There are still more formidable legal difficulties in allowing the device adopted by the respondent and allowed by the learned trial Judge in wiping out the defaults. I now pass on to this aspect of the case.

10. Let us assume that the Deputy Registrar could at the instance of the tenant correct the challans and make revised appropriations of the deposits of rent. In the instant case, the deposit made for Jaistha, 2013 S. Y. has been reappropriated towards the month of Ashar of that year and the rent for Ashar was reappropriated towards Shravan and so on for all succeeding months. We shall assume that the revised appropriations could be done. In that case the position would be this that the rent for the month of Ashar was deposited some time in Ashar instead of being deposited in Shravan and the rent of Shravan wasdeposited in the month of Shravan instead of being deposited in Bhadra, though, the rent for any month was really due to be paid on the next following month. These deposits could not have been legal and valid, for the rent for Ashar was deposited without initial tender of the same to the landlords and the landlords' refusal to accept it in terms of Sub-section (1) of Section 21 of the Act. After all, under the ordinary law a tenant cannot go and deposit rent before the Rent Controller or before any other person and claim that he has discharged his obligation towards the landlord in the matter of payment of rent. It is only because of the provisions of the Act that a tenant can in certain circumstances deposit his rent with the Rent Controller in a prescribed manner. It is only when the deposit is made in the prescribed manner and also in the circumstances specified in Section 21 that the deposit is a valid deposit and can be treated as a deposit of rent. A deposit of rent is permitted only under two circumstances, first, where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 4 and, secondly, where there is a bona fide doubt as, to the person or persons to whom the rent is payable. In the instant case, the tenant does not say that he has any doubt as to the person to whom he has to pay the rent. Therefore, the only other circumstance which would have justified and validated his payment of rent to the Controller would be the circumstance in which the landlord refused to accept the rent tendered by the tenant within the time referred to in Section 4. That is a condition precedent which must be satisfied in order to render a deposit of rent valid -- see, Bengal Tent Factories Ltd, v. Amiya Prova Das Gupta, (1960) 64 Cal WN 342, in the instant case, even if the reappropriations are allowed the defendant cannot say that there was any refusal on the part of the plaintiffs to accept rent, I; is not the defendant's case that the plaintiffs had refused the rent for Jaistha. On the contrary, the defendant's case is that the plaintiffs had accepted the rent for Jaistha and that the postal acknowledgment receipt had not reached him in time. Therefore, since there was no refusal on the part of the plaintiffs to accept rent, the defendant could not have made a valid deposit of rent. I am quite alive to the fact that if the reappropriations were to be allowed, the first deposit of rent would notionally become a deposit of rent for Ashar. But even so, it is not the defendant's case that he had tendered the rent for Ashar. Indeed, not one deposit in this case has followed a previous tender of rent to the plaintiffs and refusal on the part of the plaintiffs to accept such tender. Besides, if the re-appropriations are to stand, all the tenders would automatically become tenders of rent in advance. A landlord is under no obligation to accept payment of rent in advance. Even the time when the tender has to be made is specified in Section 21 (1) of the Act, From all points of view, therefore, the condition in Section 21 (1) has not been satisfied and all the deposits on the basis of the reappropriations and adjustments made after the corrections of the challans would automatically become invalid deposits. That is an additional and, in my opinion, fatal defect of the tenant's case.

11. I must, however, refer to another circumstance which demolishes the defendant's case completely. In our view it would not have been enough for the defendant to show that initially there had been a refusal on the part of the landlords to accept rent for a particular month and that thereafter he, the defendant, started depositing rents. We have recently held in Kabiraj Srinarayan Sarma v. Baijnath Bhartia, A. F. O. D. No. 450 of 1960 (Cal.) that before the deposit of rent for any month can be accepted as valid deposit there must in each case be a valid tender of rent by the tenant and refusal of the same by the landlord. In this case, of course, far from there being a previous tender of rent and landlord's refusal of that tender for every month, there was not such a tender and refusal even for the first month before the series of deposits had started. The defendant himself says that when the rent for the month of Baisakh, 2013 S. Y. had been sent by money order, the plaintiffs had accepted it. Even the rent for Jaistha, 2013 S. Y. Is now admitted by the defendant to have been accepted by the plaintiffs though for some fame the defendant was under the misapprehension that the plaintiffs had not accepted it. Therefore, there is not one instance of the landlords having refused to accept the rent tendered by the defendant.

12. In this view of the matter we have no manner of doubt that the defendant had committed defaults in payment of rent practically for all months subsequent to Jaistha, 2013 S. Y. From whatever angle we consider the circumstances of the case, that is to say, whether we accept the subsequent corrections of the challans as legal and valid or whether We reject them as invalid, it is impossible for the defendant to escape being a defaulter in payment of rents for four months within a period of twelve months before the filing of the suit. The defendant was not, therefore, entitled to protection from eviction under the Act.

13. In the result we hold that the learned Judge was wrong in finding Infavour of the defendant on Issue No. 2. We, therefore, order as follows: The appeal is allowed. The judgment and decree dated 10th June, 1959 of the learned trial Judge are set aside. There will be a decree in favour of the plaintiffs for khas possession of room No. 52 on the fourth floor of premises No. 5, Jadunath Mullick Road, Calcutta. The plaintiffs will get the costs of the appeal as well as the costs in the suit in the Court below.

Sinha, C. J.

14. I agree.


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