SRI BHIMSEN GUPTAversusSRI BISHWANATH PRASAD GUPTA

                                    SRI BHIMSEN GUPTA                                        A
    \ ~.
                                                 v.
                           SRI BISHWANATH PRASAD GUPTA

                                     FEBRUARY 3, 2004

                        [V.N. KHARE, CJ. AND S.H. KAPADIA, J.]                               B


                 Bihar Buildings (lease, Rent and Eviction) Control Act, 1982:

                 S. II {I)(d)-Default in payment of rent-Suit for eviction-Tenant' s
           plea that suit could not have been filed since default in payment of rent was C
           for the period beyond three years prior to institution of suit-Held, s.11 begins
           with non-obstante clause-Expression used in s.11 (J)(d) is "lawfully payable"
           and not "lawfully recoverable" and, therefore, the provision has nothing to
           do with recove1y of arrears of rent-On the contrary s. 11 {I)(d) provides a
           ground for eviction of the tenant in the eviction suit-Law of limitation bars D
           the remedy of the claimant to recover the rent for the period beyond three
           years prior to the institution of the suit, but that cannot be a ground for
           defeating the claim of the landlord for decree of eviction on satisfaction of the
           ingredients of s. ll(J){d) of the Act.
)
                  Rashik Lal and Ors. v. Shah Gokuldas, AIR (1989) SC 920, held              E
           ina 1>plicable.

                 Bombay Dyeing & Manz{facturing Co. ltd. v. The State of Bombay and
           Ors., AIR (1958) SC 328, referred to.

                CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) p

.          No. 1001 of 2004 .

                 From the Judgment and Order dated 1.9.2003 of the Patna High Court
           in S.A. No. 420 of 2000.

                R.S. Dwivedi and Ajay Choudhary for the Petitioner.
                                                                                             G
                The following Order of the Court was delivered:

                Heard learned counsel for the petitioner.

                The issue involved in this petition is; whether the plaintiff-landlord was
                                                65                                           H
    66                        SUPREME COURT REPORTS               [2004] 2 S.C.R.

A   entitled to decree of eviction in a suit filed on 5th September, 1994 on the
    ground of default in payment of rent for February, 1998 and December,
    1990, even though the same fell beyond the period of three years prior to the
    date of the suit.             ·

          In the present matter the suit was filed on 5th September, 1994 for
B   eviction of the tenant (petitioner herein) and for recovery of possession on
    the ground of default in payment of rent under Section 11 (I )(d) of the Bihar
    Buildings (Lease Rent & Eviction) Control Act, 1982 (for short the 'Act,
    1982') as well as on the ground of personal necessity. The suit was dimissed
    by the Trial Court. Being aggrieved, the plaintiff-landlord went in appeal
C   before 7th Additional District Judge, Munger who recorded the finding of
    fact to the effect that the defendant-tenant had committed default for two
    months namely for February, 1988 and December, 1990 which fulfilled the
    requirement of Section l l(l)(d) of the said Act, 1982. This finding of fact
    has been confirmed by the High Court against whiCh the tenant has come by
    way of the present petition. At this stage we may clarify that the decree of
D   eviction has been sustained by both the courts below on both the aforestated
    grounds namely personal necessity of the landlord and willful default in
    payment of rent by the tenant.

          Learned counsel for the petitioner urged before us that the landlord
    cannot file a suit for eviction of the tenant on the ground of default in
E   payment of rent by the tenant for the period which was more than three years
    prior to the institution of the suit. He contended that such a suit was not
    maintainable and, therefore, no decree could have been passed for eviction
    under Section 11 (I )(d) of the said Act, 1982.

          We do not find any merit in this argument. We quote hereinbelow
F   Section 11(1)(d) of the said Act, 1982:

           "l I. Eviction of tenants. (I) Notwithstanding anything contained in
                                                                                          -'
           any contract or law to the contrary but subject to the provisions of the
           Industrial Disputes Act, 1947 (Act XIV of 1947), and to those of
           section 18, where a tenant is in possession of any building he shall
G
           not be liable to eviction therefrom except. in execution of a decree .
           passed by the Court on one or more of the following grounds:-
                                                                                      J
           (a) to (c) .......... .

           (d) where the amount of two months rent, lawfully payable by the
H
                      BHIMSEN GUPTA v. B.P. GUPTA                             67
        tenant and due from him is in arrears by not having been paid within       A
        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 section 16."

       Section I I of the said Act, 1982 deals with eviction of tenants. It B
begins with non-obstante clause. It states that notwithstanding anything
contained in any contract or law to the contrary no tenant shall be liable to
be evicted except in execution of a decree passed by the court on one or more
of the grounds mentioned in Section 11(1 )(a)-(f). In this case we are
concerned with the ground of default which falls under Section l l(l)(d) and C
which states that where the amount of two months rent, lawfully payable by
the tenant and due from him is in arrears by re.ason of non payment within
the time fixed by the .contract or in the absence of such contract by the last
day of the month next following that for which rent is payable then such
default would constitute ground for eviction. It is interesting to note that the
expression used in Section 1 l(l)(d) is "lawfully payable" and not "lawfully D
recoverable" and therefore, Section I 1(1 )(d) has nothing to do with recovery
or arrears of rent. On the contrary Section l l(l)(d) provides a ground for
eviction of the tenant in the eviction suit. It is well settled that law of limitation
bars the remedy of the claimant to recover the rent for the period beyond
three years prior to the institution of the suit, but that cannot be a ground for E
defeating the claim of the landlord for decree of eviction on satisfaction of
the ingredients of Section 11 (1 )( d) of the said Act, l 982. In the case of
Bombay Dyeing & Manufacturing Co. Ltd. v. The State of Bombay and Ors.,
reported in AIR (1958) SC 328 it has been held that when the debt becomes
time barred the amount is not recoverable lawfully through the process of the F
court, but it will not mean that the amount has become not lawfully payable.
Law does not bar a debtor to pay nor a creditor to accept a barred debt.

      We have gone through the judgment of this Court in the case of Rashik
Lal and Ors. v. Shah fTokuldas, reported in AIR (1989) SC 920 and the said
case has no application to the facts of the present case.                          G
       For the foregoing reasons special leave petition is dismissed.

R.P.                                                         Petition dismissed.