Holding

A rent tendered to any person entitled to receive it, including a co‑owner, is a valid tender; the landlord’s refusal does not constitute default, and therefore the tenants cannot be evicted on that ground.

Summary

The landlords (Bajorias) sought eviction of the tenants (Burmans) from a shop under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 on grounds of non‑payment of rent and personal requirement. The tenants had repeatedly sent the monthly rent by postal money order to one co‑owner, Anar Devi, who refused to accept it. The High Court remanded the matter to the first appellate court to determine whether there was a default for two months, but the Supreme Court held that the tender of rent to any person entitled to receive it, including a co‑owner, was valid and the landlords' refusal could not create a default. Consequently, the tenants could not be evicted on the basis of non‑payment, and the High Court’s remand was unnecessary. The Court also held that statutory tenancy under the Act is not inheritable, so the heirs of deceased tenants have no protection. A new plea under Article 136 of the Constitution was rejected as it was not raised earlier. The appeal filed by the tenants was allowed and the landlords’ appeal dismissed.

Issues considered

Whether tender of rent by the tenant to a co‑owner of the landlord family, rather than to the karta, constitutes a proper tender under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
Whether the landlord’s refusal to accept such tender creates a default that justifies eviction.
Whether the statutory tenancy created by the Act is inheritable and whether heirs of a deceased tenant can claim protection under the Act.
Whether the High Court was correct in remanding the case to the first appellate court to determine default for two specific months.
Whether a new plea invoking Article 136 of the Constitution can be raised at the stage of this appeal.

Legislation cited

Code of Civil Procedure, 1908s. Order 22 Rule 1, s. Order 22 Rule 2
Constitution of Indias. Article 136

Subjects

rent tenderevictionlandlord‑tenantstatutory tenancynon‑payment of rentpersonal requirementHindu undivided familyBihar Buildings Actproper tenderheirs of tenant

Judgment

A CHITRANJAN BURMAN
v.
OM PRAKASH BAJORIA AND ORS.

OCTOBER4, 2001

B [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]

Rent and Eviction:

Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947:

C S.11 ( 1)(d)-Proper tender of rent-Eviction of tenants sought on ground
of non-payment of rent and for personal requirement-Tenanted premises, a
shop, belonging to Hindu-Undivided.family-Tenants 'plea that rent was tendered
by money order to one of the co-owners, who refused to accept the same-That.
since landlords own many residential and non-residential buildings, they did
D not reasonably require premises in good.faith-High Court rejecting both the
grounds of laf!dlords, but remanding the case to .first appellate court with
/ regard to default for two months-Appeals by landlords as also by tenants-
Held, in the absence o.f notice to tenants that Karta of family alone was entitled
to receive rent, rent having been sent by money order to one of the co-owners
and one of the plaint{ffs and she having refused to receive the same, there was
E a valid tender~High Court committed no illegality in coming to the conclusion
it did on this aspect-Tenants tendered rent to one of the co-owners and one of
the plaintiffs who refused to receive the same-This should not result in a trap
to sue tenants for eviction on ground of non-payment qf rent-Since there has
been a proper tender of rent by tenants and improper refusal to receive the same
F by landlords, it wa~: unnecessary for High Court to remand the case to first
appellate Court to ascertain. whether there was defa ult in payment qf rent for
the two months mentioned in its judgment -Appeal o.f tenants allowed and that
of landlords dismissed-Hindu Law-Landlord-tenant matter-Rent tendered
to one o.f the members of Hin.du undivided family who refused to receiv·e the
same-Held, a valid tender.
G
Priya Bala Ghosh (Smt.) and Ors. v. Bajran.glal Singhania & Ors.,
[1993] Suppl. 1 SCC 24, relied on.

Code o.f Civil Procedure, 1908:

H Order 22, Rules I and 2-Abatement by party's death-Appeal by tenants
600
CHITRANJAN BURMAN v. OM PRAKASH BAJORIA 601
against their eviction under Bihar Buildings (Lease, Rent and Eviction) Control A
Act, 1947-Death of some of appellant-tenants-Held, there is no provision in
the Act confering right on heirs of a tenant, protection afforded by Act is
available only to a tenant and not to his heirs or legal representatives-
Stattttory tenancy is not heritable and on death of some of the appellants, their
legal representatives did not have any interest and in view of r.l appeal did not
B
abate and not bringing on record the legal represent£ttives was inconsequential-
Cause ofaction survived to other appellants and they rightly prosecuted second
appeal in High Court having regard to provisions of r. 2.

Constitution of India, 1950:

Article 136-New plea-Held, cannot be entertained as the same was not
c
raised in second appeal be.fore High Court.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 975 of 1998.

From the Judgment and Order dated 30.9.97 of the Patna High Court in
Second Appeal No. 29 of 1980 (R).
D

WITH

C.A. No. 3972 of 1998.

S.B. Sanyal, A.K. Pandey, Ashok Pandey, Ms. Monika Vem1a, K. Pandey, E
Devashish Bharuka, M.S. Mollah, Sunil Gupta, Vivek Vishnoi, S.K. Singh and
Gopal Prasad for the appearing parties.

The following Order of the Court was delivered :

These two appeals, by special leave, are from the judgment of the High F
Court of Patna, Ranchi Be~ch, in Second Appeal No. 29of1980 dated September
30, 1997. They arise under the Bihar Buildings (Lease, Rent & Eviction)
Control Act, 1947 (for short, 'the Act'). Civil Appeal No. 975 of 1998 is by
the tenants (referred to in this judgment as 'Burmans') and Civil Appeal No.
3972 of 1998 is by the landlords (referred to in this judgment as 'Bajorias'). G
The facts giving rise to these appeals may be stated in brief to appreciate
the controversy in them. Title Suit No. 111 of 1974 was filed in the Court of
Munsiff, Ranchi by Bajorias against Lachmi Sahu, the original tenant and the
predecessor-in-interest of Burmans, for his eviction from shop No. 1 measuring
6 x 8 x 6 feet (part of Municipal holding No. 1184), Ward II. Randhir Prasad H
602 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A Street, Upper Bazar, Ranchi (hereinafter referred to as 'the shop'). The eviction
was sought on two grounds : (i) non-payment of monthly rent of Rs. 20 for a
period of more than three years from February 1971 to June 1974,under clause
(d) of sub-section (1) of Section 11; and (ii) reasonable personal requirement
of Bajorias in good faith under clause (c) of sub-section (1) of Section 11 of
the Act. The original tenant contested the suit on both the grounds. With regard'
B
to default, his case was that the rent was paid to the first plaintiff in the suit,
namely, Atma Ram Bajoria, but when he refused to receive the same, it was
being sent by money order which was being returned as 'refused': The personal
requirement of the Bajorias was also denied stating that they held many residential ·
as well as non-residential buildings and, therefore, did not reasonably require
c the premises in good faith for their occupation. On both the grounds the trial
court found against the Bajorias an<f dismissed the suit. On appeal, the learned
Judicial Commissioner, Chhota Nagpur, Ranchi allowed the appeal of the
Bajorias, set aside the findings of the trial court on both tl.1e grounds and
decreed the suit. The Burmans carrie~ the matter in appeal to the High Court
D - Second Appea:I No. 29 of 1980. By the impugned judgment, the High Court
reversed the findings of the 1st Appellate Court on both the grounds but
thought it fit to remand the case to the 1st Appellate Court to decide as to
whether there had been default in payment of rent for the month of March 1972
and August 1973. Thus, the High Court disposed of the Second Appeal on
September 30, 1977. Insofar as the grounds of .default in payment of rent and
E personal requirement were held against the Bajorias, they filed Civil Appeal
No. 3972 of 1998 and aggrieved by the remand of case to the 1st Appellate
Court in regard to default for two months indicated aMve, the Burmans filed
Civil Appeal No. 975 of 1998.

Mr. Sunil Gupta, the learned counsel appearing for the Bajorias, has
F strenuously contended that the arrears of rent not having been paid for a long
period of three and a half years, the Burmans were liable to be evicted and that
the plea of valid tender of rent by thein was found to be incorrect by the 1st
Appellate Court; the High Court ought not to have interfered With the finding
of fact. Therefore, the .appeal has to be allowed. The second contention of Mr:
G Gupta is with regard to reasonable requirement; it is submittt'd that the approach
of the High Court .is erroneous and that the Appellate Court held in favour of
Bajorias, therefore, they are entitled to an order of eviction on t.hat ground as
well. He has also argued that the impugned order of the High Court is a nullity
and this Court may be pleased to make a declara~ion to that effect.

H We shall take up the last point first.
CHITRANJAN BURMAN v. OM PRAKASH BAJORIA 603
The Second Appeal, referred to above, was filed by the legal A
representatives of late Lachmi Sahu. Two of them, namely, Kishori Lal Burman
and Shankar Lal Burman died in 1991 and 1993 respectively. Their legal
representatives were not brought on record before the High Court disposed of
the appeal by the impu,gned judgment. Therefore, contends Mr. Gupta that on
the principle that disposal of the second appeal on merit may lead to passing
B
of inconsistent orders by the Court, it ought to have been dismissed by the High
Court. In regard to the second limb of the contention of Mr. Gupta it may be
noted here that in these appeals both the Burmans as well as the Bajorias filed
Interlocutory Application;; to bring on record the legal representatives of the
said two persons which were allowed and their legal representatives were
brought on record. Mr Gupta now submits that in their applications the Bajorias C
simply copied all that was stated in the applications of the Burmans, namely,
that Chitranjan Burman was karta of the joint family which is in fact incorrect,
therefore, the Interlocutory Applications filed by Bajorias to recall the order
of this Court dated February 2, 1998, may be allowed. We are afraid we cannot
accept this contention. Once the Bajorias have chosen to adopt the averments D
contained in the application of the Burmans, they are bound by it and cannot
be allowed to wriggle out of it. As such the order passed by this Court on
February 17, 1998 allowing substitution application, which is in the nature of
consent order cannot be recalled. In effect it will be treated that the substituted
parties are impleaded in these appeals.
E
The contention, the impugned judgment of the High Court is nullity,
cannot be enterta~ned; besides it also lacks substance. There is a good reason
-I as to why such a plea cannot be permitted to be raised by the Bajorias in this
appeal. This ground was availaqle to them when the Second Appeal was argued
in the High Court. As they .have not taken the point before the High Court, they F
cannot be allowed to urge a new point in these appeals under Article 136 of
the Constitution.

Even on merit the contention must fail. There is admittedly no provision

- in the Act conferring right on the heirs of a tenant. The protection afforded by
the Act is available only to a tenant and not to his heirs or legal representatives.
It follows that the statutory tenancy is not heritable. If that be so, on the death
of Kishori Lal Burman and Shankar Lal Burman their legal representatives did
G

not have any interest in the Second Appeal and in view of the provisions of
Order 22 Rule 1 of the Code of Civil Procedure it did not abate and not bringing
on record their legal representatives was inconsequential. The cause of action H
604 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A survived to the other appellants and they rightly prosecuted the Second Appeal
in the High Court having regard to the provisions of Order 22 Rule 2 of the
Code. For these reasons, the judgment passed by the High Court in the Second
Appeal cannot be said to be a nullity.

Reverting to the ground of eviction of Burmans, a big fight is on in
B respect of a small shop fetching a monthly rent of Rs. 20 between the landlords
(Bajorias) who own other residential as well as non-residential buildings and
the tenants (Burmans) who are running business of jewellery, both are well·
placed. It is not a case of a wealthy landlord filing a case of eviction against
a poor tenant.
c Insofar as the ground of personal requirement under Section ll(l)(c) of
the Act is concerned, the trial court recorded t9.e finding that the personal
requirement of the shop by the Bajorias is not reasonable and bona .fide. This
was confirmed by the High Court. We are therefore, not inclined to go into the
correctness of finding of fact in these appeals.
D
The next point relates to default in payment of rent for the period in
question.

The substantial question of law framed by the High Court on the ground
of default reads as follows :
E
"Whether by remitting rent to OJ.le of the co-plaintiffs, the defendants
- respondents could be said to be defaulter and liable to eviction?"

The High Court held that by sending rent to Anar Devi, one of the
plaintiffs, the defendants are safe of being defaulter as contemplated under
F Section ll(l)(d) of the Act.

The finding recorded by the trial court and confirmed by the High Court
turns on the question : whether the tender of rent by Burmans was valid and
refusal to receive the same by Bajorias was unjustified.

G Here, it will be apt to refer to the definition of "landlorcl." :

"landlord" includes the person who, for the time being is receiving, or
is entitled to receive the rent of a building whether on his own account
or on behalf of another, or on account or on behalf or for the benefit
of himself and others or an agent, trustee, executor, administrator, ,
H receiver or guardian or who would so receive the rent or be entitled
CHITRANJAN BURMAN v. OM PRAKASH BAJORIA 605
to receive the rent, if the building were let to a tenant." A
A perusal of the clause, extracted above, shows that within the meaning
of landlord is included a person who for the time being is receiving or is entitled
to receive the rent of a building, whether on his own account or on behalf of
the other or on account or on behalf of the benefit of himself or others, or an
agent, trustee, executor, administrator, receiver or guardian or who so receives B
the rent or they entitled to receive the rent if the building were let to a tenant.
....
I Admittedly, the premises was purchased by Khem Raj, predecessor-in
interest of the Bajorias. On h~s death all his heirs became the owners in
accordance with the provisions of the Hindu Succession Act. Anar Devi is C
admittedly one of the co-owners:

Lachmi Sahu, precedessor-in interest ofBurmans, was admittedly paying
the monthly rent to Atma Ram Bajoria, the first plaintiff. from the record, it
appears "that in Title Suit. No. 27 of 1970 in the Court of learned Subordinate
Judge, Ranchi, an order of attachment directed the defendant therein (Anar D
Devi) to deposit the rent in Court. We may note here that though Mr. Gupta
pointed out that in the said title suit all the Bajorias were also parties, a perusal
of the said order shows that only Anar Devi was mentioned therein. Accordingly,
till January 1971, before the period in question, Lachmi Sahu deposited the rent
of the shop in the said Court. The attachment was raised on January 15, 1971 E
and the said Lachrni Sahu was served with a notice informing him of the release
of rent from the. attachment and directing that after that notice the rent of
whatever kind be paid to the defendant (Anar Devi) and the rent before the
release of the attachment be deposited in Court. Relying on that notice the
Burmans claimed to have tendered the rent by money order in the name of Anar
Devi. In their written statement the Burmans stated that the monthly rent of the F
shop was attached by the order of the Court in Title Suit No. 27 of 1970 of
the Court of Subordinate Judge, Ranchi and the monthly rent upto the month
of January 1971 was deposited in Court in p-ursuance of the order passed by
the Court. The monthly rent for the month of February 1971 along with the rent

- for the remaining Pvriod of January 1971 was tendered to plaintiff No. l (Atma
Ram Bajoria) by the deceased Lachm.i Sahu in or about the early part of March
1971 and on his refusal to recive the said rent, the same was remitted through
G

postal money order to him and likewise the rynt for the succeeding months also
has been sent through money order at his correct address, but the first plaintiff
has persistently refused to receive the same.
H
606 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R..
A On the basis of this plea it is urged by Mr. Sanyal that there was a valid
tender and the refusal was unjustified and illegal, as such the alleged default
in payment of rent cannot give any cause of action under clause (d) of Section
11(1) of the Act to the Bajorias to seek eviction of the Burmans. A perusal of
the documentary evidence Exhibits 1 to lB and money order receipts, Exhibits
E to E36 diseloses a different story. All these money order receipts are addressed
B to Anar Devi and not to the first plaintiff - Atma Ram Bajoria. Mr Sanyal,
however, sought to explain away the variance stating that Anar Devi is also a
plaintiff; she is plaintiff No. 4, if in the written statement we read plaintiff No .
. 4 for plaintiff No. 1 there will be no difference between the pleadings and the
proof. We are afraid we cannot accede to the contention of the learned counsel
c ·for reasons· more than one. Firstly, the written statement was filed in May 1977
and till October 2001 the Burmans did not choose to have their alleged mistake
in the written statment corrected, though the case went through several
vicissitudes during the last 24 years. Notwithstanding that aspect a plain reading
of paragraph 7 of the written statement does indicate that the Burmans intended
Atma Ram Bajoria and not Anar Devi when they used the word!) plaintiff
D. No; 1.

Be that as it may, the fact remains that the rent for the period in dispute
was tendered by the Burmans through money orders as seem from receipts -
Exhibits E to E 36 - addressed to Anar Devi who is plaintiff No. 4 in the present
suit for eviction of the Burmans. She gave no explanation as. to why she refused
E
to receive the rent. Her refusal is obyiously unjustified if not ma!« fide. If as
in this case there has been a tender,«i rent to Anar Devi, one of the co-owners,
of the property and improper refusal to receive the same by her it cannot be
said that there is no tender of rent and consequently the B urmans cannot be saicl
to be defaulter in· payment of the rent
F
It appears that the Bajorias refused to receiye the r~nt for the shop on
the ground that Money Orders were not addressed to the first plaintiff (Atma
Ram Bajoria) who was the karta.of the family and was entitled to receive the
rent. It is relevant to note here that in paras 1 and 2 of the plaint it was stated
that the plaintiffs are Hindus constituting Joint Hindu Family governed by
G Mitakshara School of Hindu Law and that plaintiff No. 1 is the eldest brother
and in law, in fact, the karta of the Joint Hindu Family. This fact is denied by
the Burmans in their written statement. The averments in the written statement
that the· rent was tendered to Atma Ram Bajoria does not. indicate that the
Burmans were conscious of the fact that Atma Ram Bajorla as karta of the joint
H family alone was entitled to receive the rent. The shop is a joint property and
CHITRANJAN BURMAN v. OM PRAKASH BAJORIA 607
therefore it cannot be disputed that one of the members of the family being a A
co-owner was entitled to receive the rent.
GI

Atma Ram Bajoria (plaintiff No. 1) cannot pretend that he was not aware
of the sending of rent by money order to his mother Anar Devi c/o Atma Ram
Bajoria at his address. At no point oftime did he inform the Burmans that he
is the karta of the family and that rent should be paid/sent to him alone. He B
kept quiet for a long period of three years and a half. In the absence of specific
notice to Burmans that plaintiff No. l, namely, Atma Ram Bajoria, being the
karta of the family is alone entitled to receive the rent, it cannot be said that
there has been no proper tender of the rent. Anar Devi is one of the plaintiffs.
All the plaintiffs. are staying together in the same house. It is not the case of C
Bajorias that the rent was not tendered to her. If the rent was properly tendered
to her~ which we think was justified in the absence of notice to the Burmans
that Atma Ram Bajoria being karta was alone entitled to receive the rent, there
was a valid tender. When rent was admittedly tendered to one of the co-owners,

- one of the plaintiffs in the suit, it would be unjust nay atrocious to hold that
there was no valid tender of rent and pass an order of eviction of the Burmans
on that ground. We are, therefore, unable to say that the High Court has
D

committed any illegality in coming to the conclusion it did on this aspect.

Mr. Sany al has placed reliance on a judgment of this Court in Priya Bala
Ghosh (Smt.) and Ors. v. Bajranglal Singhania & Ors., [1993] Suppl. 1 SCC E
24. In that- case the 1.;,~' for the month of September was not paid but for
October and November money order was sent on November 28, which was
received in December. The question was whether the tenant has committed
default in payment of rent. The landlord therein contended that the payment
of rent by money order was not a valid tender and, therefore, the tenant had
committed default in payment of rent. This Court held that Section 13(1) of the F
said Act permitted the tenant to remit the rent due, by postal money order to
the landlord and if the latter refuses to accept the rent, the remittance of rent
by money order within the stipulated time could be availed as a proper defence
and it was held that payment of rent by sending the same through money order
was a valid tender. This case, in our view, does not support the contention of G
Mr. Sanyal. However, the following observations aptly apply to the fact situation
here:

"Why should a temmt who resorts to the latter mode of payment be
evicted even though he has shown readiness and willi~gness to pay the
rent due and payable by him to the landlord? The law has to be broadly H
608 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A. · construed because it is not intended to trap the tenant into a situation
so that the landlord can evict him."
•
· The Burmans tendered the rents to Anar Devi one of the co-owners and
one of the plaintiffs who refused to receive the same which should not result
in a trap to sue them for .eviction on the ground of n.on-payment of rent.
B
As it is found that there has been a proper tender of the rent by Burmans
and improper refusal to receive the same by Bajorias it was unnecessary for
the High Court to remand the case to the 1st Appellate Court to ascertain
~hetber there was default in payment·of rent for the months of March 1972
and August 1973. The judgment tinder appeal to this extent is set aside.
c Consequently, Civil Appeal No. 975 of 1998 is allowed and Civil Appeal No.
3972 of 1998 is dismissed. In the circumstances of the case, we direct th~
parties to· bear their own costs.

I.A. Nos. 2 arid 4 are dismissed.
D I.A. No. 3 is allowed.

We make it clear that the questions of determination of reasonable rent
and the amount which Bajorias will be entitled to recover from the Burmans,
are left open.
E R.P. C.A. No. 975/98 allowed.
C.A. No. 3972/98 dismissed.