Jharkhand High Court
Haradhan Prasad Gupta (Sao) vs Jai Kishore Singh on 17 February, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A No. 114 of 2016
Haradhan Prasad Gupta (Sao) .... .... Appellant(s).
Versus
Jai Kishore Singh .... .... Respondent(s)
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.
THROUGH : VIDEO CONFERENCING
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For the Appellant(S) : Mr. Anil Kumar Sinha, Advocate
For the Respondent :
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09/17.02.2022
Heard learned counsel for the parties.
2. I have perused the judgments of both the courts below. This second appeal
has been filed by the appellant challenging the judgment dated 8 th March, 2011
passed in Title Eviction Suit No. 11 of 2004 passed by Munsif 2 nd, Dhanbad.
Further the appellate judgment passed in Title Appeal No. 33 of 2011 by the
District Judge-II, Dhanbad is also under challenge.
3. The appellant herein was defendant in the trial court and the appellant in
the first appellate court respectively.
4. The suit was filed by the plaintiff praying therein to evict the defendant
(appellant herein) from the suit premises on the ground of default. The plaintiff
being the landlord of the premises stated that the defendant who is the tenant did
not pay rent from November, 2003 to March, 2004 and thus is a defaulter in terms
of Jharkhand Building (Lease Rent and Eviction Control) Act, 2000 and as such
he is liable to be evicted from the premises in question. It was the case of the
defendant that the rent was paid according to plaintiff's convenience and
accumulated rent of few months were paid to the plaintiff and thus there is no
question of any default. It has been further mentioned that the rent of the period
which is cited by the plaintiff as the default period, was paid later on and the same
was also accepted. He submits that in view of the aforesaid fact, there is no default.
Both the trial court and first appellate court rejected the contention of the tenant
(appellant herein) and has held that the tenant is at default and he is liable to be
evicted. Against both the judgments, this appeal has been filed.
5. Counsel for the appellant submits that tenant is not month to month tenant
and the rent was paid as per the convenience in a lump sum to the landlord
plaintiff. He submits that when the rent was paid as per their convenience in lump
sum, it cannot be said that the defendant tenant was in default.
He further submits that admittedly the rent for the period November, 2003 to
March 2004 was paid at a later date, which was duly accepted by the landlord. He
submits that acceptance of the rent suggest that the plaintiff landlord has condoned
the delay and it will be implied that land lord has waived his right to seek eviction
on the ground of default.
6. After hearing the counsel for the appellant and after going through the
record, I find that the fact that defendant is the tenant and plaintiff is the landlord,
is not disputed. Tenant has stated that he used to pay rent as per connivance in
lump sum manner to the plaintiff. To appreciate this, it is necessary to refer to
Section 11 of the Jharkhand Building (Lease Rent and Eviction Control) Act, 2000
(hereinafter referred to as the said Act). Section 11 of the act deals with the
eviction of tenants. The tenants can be evicted on the grounds mentioned in the
aforesaid sections. In this case since the ground is of default, it is necessary to
quote Section 11 (1) (d) of the said act.:-
"(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
Section16;"
7. From perusal of the aforesaid provision it is clear that when an amount of
two months of rent, lawfully payable falls due and has not been paid within the
fixed time of the contract or on the last day of the month next following, the tenant
is liable to be evicted. From the aforesaid provision it is clear that rent has to be
paid within the time fixed by a contract or where there is no contract, that same
has to be paid by the last day of the month next following that for which the rent
is payable. In this case the defendant has pleaded that the rent was paid in lump
sum and he was not month to month tenant. If that be so, there has to be a contract
specifying the time when the rent has to be paid. Admittedly the defendant has
failed to prove that there was any contract with the landlord in relation to time and
date of paying the rent. The provision of law i.e Section 11 (1) (d) of the act
provides that if there is no contract then rent has to be paid on the last date of very
next month when the rent is due. It is the case of the plaintiff-landlord that the
arrears of rent was from November, 2003 to March 2004.
In absence of any contract the rent of November had to be paid by the end of
December, the rent of December should have been paid by the end of January and
the rent of January should have been paid by the end of February and so on.
Admittedly this schedule was not followed by the defendant. Thus in terms of
Section 11 (1) (d) of the act the defendant has become a defaulter. Both the courts
below have held similarly. There is no illegality in the said finding.
8. Now the next question which the defendant-appellant is trying to wreck
up is that, when the plaintiff landlord has accepted the rent of these defaulting
months, though at a later date, the landlord is estopped from filing this suit for
eviction and it is to held that he impliedly waived the default. This issue has
already addressed and answered by co-ordinate bench of this Court in the case of
Arbind kumar Tiwari vs Mahadeb Sen reported in 2008 (2) JLJR 338. This
Court in terms of the Bihar Building Lease Rent & Eviction Control Act {now
after the formation of the State of Jharkhand, Jharkhand Building (Lease Rent and
Eviction Control) Act, 2000} held that once a defaulter is always a defaulter and
mere acceptance of rent of subsequent months itself will not be deemed or implied
as a waiver of landlords right to seek eviction on the ground of default of rent for
more than two months, unless expressly accepted. In the instant case there is no
express acceptance of waiver. Thus the point which the appellant is trying to raise,
has already been answered against the appellant. The question herein is whether
the tenant was in default. Since it is admitted by the tenant that he had not paid
the rent for the defaulting months, before the last day when it fell due and the
defaulting month are more than two, in terms of Section 11 (1) (d) of the act he
has made himself liable to be evicted from the said premises on the ground of
default.
9. Considering what has been held above and the fact that there is no
substantial question of law for formulation in this case, and finding of facts are
concurrent, this appeal stands dismissed.
(ANANDA SEN , J)
anjali/ C.P 3
