Jharkhand High Court
Lakhan Agarwal vs Rohit Modi on 6 March, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 98 of 2024
Lakhan Agarwal, aged about 72 years, son of Late Suraj Bhan Agarwal,
resident of Nehru Road, Ramgarh Cantt. P.O. & P.S. Ramgarh, District-
Ramgarh ... Appellant
-Versus-
1. Rohit Modi, son of Late Ram Swarup Modi, resident of Modi House,
Baralal Street, Upper Bazar, P.O. G.P.O. Ranchi, P.S. Kotwali, District-
Ranchi
2. Ranjana Bhartiya, daughter of Ram Swarup Modi and wife of Shashi
Bhartiya, resident of Flat No.902B, Tower-VI, Godrej Woodsman Estate,
Near AMCO Batteries Complex, Bellary Road, P.O. & P.S. Bellary Road,
Banglore, Karnataka
3. Reve Agarwal, daughter of Late Ram Swarup Modi and wife of Sushil
Kumar Agarwal, resident of 15, Ameetan Building, Opposite Sehiwalaya,
Gymkhana, J. Bhasley Marg, P.O. & P.S. J. Bhasley Marg, Mumbai
4. Rashmi Jain, daughter of Late Ram Swarup Modi and wife of Ravindra
Jain, resident of Paras Nidhi, 6/3 Old Palasia, Indore, P.O. & P.S. Indore,
(Madhya Pradesh)
5. Vishal Mittal, son of Late Suresh Agarwal, resident of Gola Road, Chatti
Bazar, P.O. & P.S. Ramgarh, District- Ramgarh
6. Sangita Agarwal, daughter of Late Suresh Agarwal and wife of Amit
Agarwal, resident of D 303, Panchsheel Apartment, 039/B/1, G.T. Road,
P.O. G.T. Road, P.S. South Howrah, Calcutta (West Bengal)
... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellant : Mr. A.K. Sahani, Advocate
For the Respondents :
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04/06.03.2025 Heard Mr. A.K. Sahani, learned counsel for the appellant.
2. This appeal has been preferred against the judgment and decree dated
05.06.2024 (decree sealed and signed on 18.06.2024) passed by the learned
Principal District Judge, Ramgarh in Civil Appeal No.04 of 2022 affirming the
judgment and decree dated 30.06.2022 (decree sealed and signed on
06.07.2022) passed by the learned Additional Civil Judge (Jr. Division)-II,
Ramgarh in Eviction Suit No.9 of 2013.
3. From the judgment of the learned trial court, it appears that the case
of the plaintiff was as under:
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(A) According to the plaint, the original plaintiff and now the
substituted petitioners are the absolute owner in respect of land along
with the building, being part of Plot No. 2910 of Khata No. 246, under
Khewat No. 3/1 within Ramgarh Cantonment Board Holding No. GR-
104, Ward No. V situated at Ramgarh Cantt, Chatti Bazar, Police
Station Ramgarh, District Ramgarh, Jharkhand. The shop premises
within the above holding on the ground floor, more fully described in
Schedule A hereunder (hereinafter referred to as the suit premises)
was let out to the defendants on monthly rent of Rs. 90/- (Rupees
Ninety only).
(B) Further the case of the plaintiff is that the relationship of original
landlady and defendants being tenant is established between the
parties by the payment of rent and grant of rent receipts. The
substituted plaintiffs have now stepped into the shoes of the original
plaintiffs. That the tenancy is month by month on a monthly rental of
Rs. 90/- (Rupees Ninety only) payable according to English Calendar
month within the first week of every following month. The
defendants lastly paid rent for the month of August 2004 on 8
September, 2004. The last rent was paid at the rate of Rs. 90/- only.
The defendants have neither paid, nor validity tendered the rent of
the suit premises to the plaintiff from September 2004 to upto-date
and has incurred the liability of being evicted on the ground of default
in payment of rent. The defendants defaulted from the month of
September 2004.
(C) Further case of the plaintiff is that the defendants by not paying
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the rent for two consecutive months (i.e. the rent for the months of
September 2004 and October 2004) had become defaulters and bad
tenants, and are liable to be evicted from the shop premises on this
ground alone. That the plaintiff; through her son, agent and attorney;
has been repeatedly requesting the defendants to vacate the
premises, but there has been no positive response from the
defendants. The last request was made on 1st October 2013. The
cause of action for the suit arose on November 2004 when the
defendants made two months of default in payment of rent and
subsequent thereafter each day and month upto 2013 and several
other dates of request and it is continuing day to day within the
jurisdiction of this court.
4. The defendant no.2 appeared before the court and filed his written
statement on 27.03.2014 and the case of defendant no.2 is as under:
(A) The defendant no. 2 stated that the suit is not maintainable. The
plaintiff has neither any right to sue nor have any cause of action
against defendants. The suit is barred by law of limitation.
(B) Further, defendant no. 2 stated that the present suit, as framed,
is not maintainable and is fit to be dismissed. The plaintiff has got no
cause of action for the suit and the cause of action as alleged in Para-
8 of the plaint are incorrect, false and are denied. The suit is barred
by Law of Limitation, Estoppel, acquiescence and waiver. The plaint
has not been properly signed and verified and as such is liable to be
rejected. The suit is in under the provisions of Specific Relief Act.
(C) Further, defendant no.2 stated in written statement that the
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statement made in Para-2 of the plaint are not denied, but it is stated
that one Satyadeo Pandey @ Panditji, the care taker of plaintiff used
to collect the monthly rent from this defendant in each month and
used to issue rent receipt subsequently duly written and signed by
some other person as per his in the name of Suresh Kumar Agarwal
only convenience, the rent of the suit premises were paid in the
manner aforesaid till the month of August 2004, whereafter he
regularly realized rent in each month till the month of December, 2010
without grant/issue of any rent receipt. The defendant in view of the
very good relationship and faith upon him paid rent till the month of
December, 2010 without any rent receipt, but thereafter this
defendant, in view of otherwise attitude of the plaintiff, tendered the
rent for the month of January, 2011 and demanded rent receipt which
was refused and as such, this defendant remitted rent to the plaintiff
by M.O. for the month of January 2011 and subsequent month
regularly, which is being refused by the plaintiff.
(D) Defendant no.2 further stated in the written statement that there
was no contract to pay the rent within first week of next following
month as alleged. It was stated that rent was payable by the last day
of next succeeding month, but in spite of it the rent was being paid
in the current month itself. It is false to say that the defendant last
paid rent for the month of August, 2004 on 8th August, 2004; as
stated above, this defendant has paid rent till the month of December,
2010 at the rate of Rs. 90/- per month and thereafter is remitting rent
in each month to the plaintiff, which is being refused. Thus, the
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defendant is not the defaulter in payment of rent as alleged. It is false
to say that the defendant has become defaulter due to non-payment
of rent for the month of September and October 2004 and has
become bad tenant as alleged. It is false to say that the plaintiff
through his son is repeatedly requesting the defendant to vacate the
suit premises but there has not been positive response from the
defendant. It is stated that the plaintiff through her son never
requested to this defendant to vacate the suit premises as falsely
alleged. The plaintiff is not entitled to any reliefs as claimed in the
suit. The suit is fit to be dismissed.
5. Mr. A.K. Sahani, learned counsel for the appellant submits that both
the courts have erred in deciding the suit and appeal respectively. He submits
that both the courts have not appreciated the facts in its right perspective
and even exhibits have not been appreciated correctly and in view of that,
substantial question of law is made out and, therefore, this second appeal
may kindly be admitted.
6. Eviction Suit No.09 of 2013 was instituted by the plaintiff-respondents
seeking a decree for eviction of the defendants from shop, measuring
approximately 200 sq. ft. being a portion of Ramgarh Cantonment Board,
Holding No. Gr-104 within Ward No.V of Ramgarh Cantt., Chatti Bazar, Gola
Road, District- Ramgarh, standing on portion of Plot No.2910 of Khata No.246
under Khewat No.3/1.
7. The learned trial court has formulated six issues to decide the suit.
Issue no.(ii) was with regard to barring of suit by law of estoppel, limitation,
acquiescence or waiver, issue no.(iv) was with regard to the fact whether the
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plaintiff has got valid cause of action for instituting the said suit and issue
no.(v) was with regard to default in payment of rent. Issue nos. (iv) and (v)
were taken together by the learned trial court.
8. The learned trial court has examined the case of the plaintiff and
defendant no.2 in paragraph 10(ii) and 10(iii) respectively of the judgment.
The learned trial court has further considered the evidence of P.W.1, who is
the son of the original plaintiff and he was authorized to institute the suit by
his mother against the appellant-defendant for evicting the suit property
which described the area of the suit property. He has also identified the
signature of the witnesses and Droupadi Devi Modi, which was marked as
Ext.-1. He has further proved rent receipts being Ext.2 to 2/W. P.W.2-Satyadeo
Pandey has also supported the case of the plaintiff.
9. The learned trial court has further appreciated the evidences of D.Ws.
1 to 7 and in view of that, the learned trial court has further appreciated that
the suit was instituted on the ground of default in payment of rent for two
months and more under Section 11(1)(d) of the Bihar Buildings (Lease, Rent
and Eviction) Control Act, 1982 and considering Exts. 2 to 2/W, which are
regarding rent receipts, the learned trial court found that the rent was paid
by the defendant till August, 2004 (Ext. 2 to 2/P). Exts. 2/Q to 2/W disclosed
that the appellant-defendant has not paid any rent to the plaintiff as one part
of receipt. The learned trial court has further found that the defendants have
not produced any document to prove that the rent has been paid after
September, 2004 and in view of that, the learned court has found that the
requirement of Section 11(1)(d) of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1982 is fulfilled.
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10. The learned trial court has further found that limitation is not made out
in view of the fact that the plaintiff has not prayed for recovery of arrears of
rent and suit was only for eviction and on that background, the learned trial
court has passed the judgment dated 30.06.2022 and decree the suit in
favour of the plaintiff-respondents and directed the appellant-defendant to
vacate the premises in question.
11. Aggrieved with the said finding of the learned trial court, the appellant
herein preferred Civil Appeal No.04/2022 and vide judgment dated
05.06.2024, the learned first appellate court has dismissed the appeal and
affirmed the judgment passed by the learned trial court. The learned first
appellate court in paragraph 22 of the judgment has appreciated the fact that
the legal heirs of Dropadi Devi Modi were substituted and it was rectified in
light of Section 152 of the CPC and that fact has also been admitted by
Mr. A.K. Sahani, learned counsel for the appellant in course of his argument
in the present second appeal. The learned first appellate court in paragraph
25 of the judgment has further appreciated the point of limitation and has
come to the conclusion that the plaintiff has not claimed arrears of rent and
in view of that, the limitation prescribed for 3 years is not made out. The
learned first appellate court has further found that there is nothing on record
to show that after September, 2004 till January, 2011, the rent has been paid
and in view of that, the learned first appellate court has dismissed the appeal
vide judgment dated 05.06.2024 and affirmed the judgment of the learned
trial court.
12. Thus, two courts have given concurrent finding on the facts and no
perversity has been shown in the same in the argument of the learned counsel
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for the appellant. In light of Section 11(1)(d) of the Bihar Building (Lease,
Rent and Eviction) Control Act, 1982, in the event, rent for two months is not
paid a cause of action arises. The statute mandates that the rent should be
paid within the time fixed by the contract and in absence thereof by the last
date of the month next following. The obligation on the part of the tenant to
pay rent in the manner laid down under the Act, being a statutory one, he
must comply therewith strictly. The statute, therefore, in other words,
prescribes the period within which the rent must be rendered to the landlord
by a tenant. When the statute lays down the period during which the rent is
required to be paid or deposited, the same is required to be complied with.
13. In view of the above facts, reasons and analysis, there is concurrent
finding of two courts on the issue of Section 11(1)(d) of the Bihar Building
(Lease, Rent and Eviction) Control Act, 1982 recorded in favour of
the plaintiff-respondents and, therefore, no substantial question of law is
made out to admit the present second appeal and, as such, this second appeal
is dismissed.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
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