RADHA KISHAN SAO versus GOPAL MODI & ORS.

Citation: [1977] 2 S.C.R. 984 · Decided: 14-02-1977 · Supreme Court of India · Bench: P.K. GOSWAMI · Disposal: Appeal(s) allowed

Judgment (excerpt)

D 
E 
G 
H 
984 
RADHA KISHAN SAO 
v. 
GOP AL MODI & ORS. 
February 14, 1977 
[P. K. GOSWAMI AND P. N. SHINGHAL, JJ.] 
Bihar Buildings (Lease, Rem and Eviction) Control Act, 1947, ss. 11 and llA 
-Scope of-Rellt of premises fixed by Rent Controller-Subsequent contract for 
letting out furniture-Failure to pay rent of furniture-If a ground for eviclion. 
Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 
1947 provides that a tenant shall not be liable to eviction except in execution of 
a decree passed by the Court on one or more of the grounds specified therein. 
Under s. I IA, if in a suit for recovery of possession of any building the tenant 
contests the suit, the Court may make an order for deposit of rent and arrears, 
if any, and on failure to deposit the arrears within fifteen days of the date of 
the order, the Court shall orcfer the defence against ejectment to be struck out. 
The plaintiff ( re3pondent) let out two rooms of his premises to the defen-
dant {appellant) at a rent fixed by the Rent Controller under s. 5 of the Act. 
Sometime later, ·the plaintiff let out some furniture t6 the defendant at a mutually 
agreed rent. 
The plaintiff's suit for eviction of the defendant on the ground 
of non-payment of rent for three months was dismissed by the trial Court hold-
ing that failure to pay the rent of furniture along with the rent of the premises 
did not amount to a default under s. ll(l){d) of the Act. 
On appeal, the 
Subordinate Judge held that non-payment of rent of furniture along with the 
rent of the premises was a default within the meaning of s. 11(1 ){d). 
The 
High Court upheld the decision of the Subordinate Judge. On the question of 
deposit of rent under s. llA, the Subordinate Judge held that the defendant bad 
filed documents to show subsequent deposit in a regular way. Dn the other 
hand, the High Court came to the conclusion that the defendant failed to produce 
any material to show as to what deterred him from "depositing the money him-
self on the passing of the challan and what caused the handing over of the 
money to the Nazir." On this ground, it allowed the plaintiff's suit. 
Allowing the appeal, 
HELD : The High Court and the Subordinate Judge committed an error of 
law in a,ccepting the ground of default under s. ll(l)(d) on a wrong apprecia-
tion of the legal position on the facts found bv the first appellate Court. There 
was, therefore, no basis for granting a decree for eviction under s. 11 (1 )( d) 
of the Act. 
[990Cl 
1. (a) It is the default in the payment of rent fixed by the Rent ContrQller 
which will furnish a ground for eviction under s. 11 (l )(d). Section 4 of the 
Act provides that notwithstanding anything contained in any agreement er law 
to the contrary, it shall not be lawful for any landlord to increase, or claim any 
increase in, the rent which is payable for the time being, in, respect of .any build-
ing except in accordance with the provisions of the Act. 
[989E-F] 
In the instant case, the Rent Controller having fixed the rent of the premises, 
the plaintiff could .not alter that rent without an order of the Ri;_nt Controller. 
Default of the pavment of furniture rent agreed to by the defendant subsequent 
to the lease of the- premises could not be brought within the miscltief of s. 11 (I) 
(d) to entitle the landlord to a decree for eviction. The furniture rent remains 
divorced from the rent of the building under the original demise. 
[989D &P] 
(b) Any alteration of the fair rent fixed by the Rent Controller will have to 
receive the imprimatur of the Rent Controller under s. 7. 
There is no legal 
impediment if the parties approach the Controller and by consent obtain an 
order from the Controller fixing the revised rent admissible under the Act. No 
.. 
RADHA KISHAN SAO v. GOPAL MODI,(Goswami, J.) 
985, 
enhancement of fair rent is legally permissible except in accordance with the 
A 
provisions of the Act. Default of payment of any rent in excess of the fair rent 
fixed, if without recourse to the procedure under the Act, will not entail a ground 
• 
for eviction under s. 11 ( 1 )( d) of the Act. 
[990A-B] 
The penalty of striking out the defence for noh-compliance .of an order under 
s. llA is district from the grounds of eviction permitted under s. 11. [988H] 
2. The contention of the defendant that an order under s. 1 IA could be 
passed only by the trial Court is without forca because an appeal is a continua-
tion of th

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