Skip to content


Carona Sahu Co. Ltd. Vs. Vinod Kumar Goyal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 152 of 1977
Judge
Reported inAIR1979Raj1; 1978(11)WLN663
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13, 13A, 13(3), 13(4) and 13(5); Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976; Rajasthan Premises (Control of Rent and Eviction) Ordinance, 1975 - Ordinance 26
AppellantCarona Sahu Co. Ltd.
RespondentVinod Kumar Goyal
Appellant Advocate S.L. Sogani and; R.S. Purohit, Advs.
Respondent Advocate B.P. Agarwal, Adv.
DispositionAppeal dismissed
Cases Referred(Raj) and Bhanwar Lal v. Chandra Kanta
Excerpt:
.....any default on the contrary, under section 13(5) of the act prior to the coming into force of the amending ordinance, the proceedings regarding default did not came to an end and the tenant was required to further deposit the rent by the 15th of each succeeding month and in case be committed a default in the payment of such rent in any month, she stood the risk of defence against eviction to be truck of. in any case the legislature bad hid down section 13a as a special provision relating to the pending and other matters at the date of commencement of such ordinance and the tenant can only resort to the provisions of section 13a in a pending suit sub-sections (4) and (5) of the act prior to the coming into operation of amending ordinance cannot be brought into effect after the..........an application filed by the defendant under section 13 (5) of the rajasthan premises (control of rent & eviction) act, 1950, (hereinafter referred to as 'the act'), was dismissed.2. the plaintiff filed a suit for eviction of a shop on the ground of his reasonable and bona fide necessity, default in the payment of rent and on account of denial of his title by the defendant. the defendant moved an application under section 13 (5) of the act, 1950, on 7th aug. 1975 which was the first date of hearing of the case. in this application the defendant submitted that the arrears of rent amounting to rs. 9,200/- for the period of 1st oct., 1974, to 31st may, 1975 have already been paid to the commercial taxes officer ajmer by defendant on behalf of the plaintiff under section 11a of the.....
Judgment:

N.M. Kasliwal, J.

1. This miscellaneous appeal has been filed against an order of the District Judge, Ajmer, dated 27th Sept. 1977, whereby an application filed by the defendant under Section 13 (5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (hereinafter referred to as 'the Act'), was dismissed.

2. The plaintiff filed a suit for eviction of a shop on the ground of his reasonable and bona fide necessity, default in the payment of rent and on account of denial of his title by the defendant. The defendant moved an application under Section 13 (5) of the Act, 1950, on 7th Aug. 1975 which was the first date of hearing of the case. In this application the defendant submitted that the arrears of rent amounting to Rs. 9,200/- for the period of 1st Oct., 1974, to 31st May, 1975 have already been paid to the Commercial Taxes Officer Ajmer by defendant on behalf of the plaintiff under Section 11A of the Rajasthan Sales-tax Act, as ordered by the Commercial Taxes Officer Ajmer. It was, therefore, prayed that the learned trial Court should be pleased to determine the amount to be deposited or paid to the plaintiff by the defendant.

3. A reply was filed by the plaintiff to the aforesaid application and it was emphatically denied that any amount at all had been deposited on behalf of the plaintiff and that in any case if the defendant wrongly paid the amount then such amount cannot be taken for aid and the case being governed by Section 13 (4) of the Act, 1950, and not Section 13 (5) of the Act, 1950, the defence of the defendant was liable to be struck off under Section 13 (6) of the Act. The plaintiff also submitted a separate application under Section 13 (6) of the Act for striking off the defence of the defendant against eviction. The application of the defendant remained pending and in the mean time the Rajasthan Premises (Control of Rent & Eviction) Amending Ordinance came into force vide notification dated 29th Sept. 1975 published in the gazette D/- 29th Oct. 1975. This Ordinance was further replaced by the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act, 1976, (Rajasthan Act No. 14 of 1976). For the purpose of brevity I shall call it the amending Act. The defendant thereafter submitted an application on 24th Oct. 1975, under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1050, as amended by Ordinance No. 26 of 1975. The plaintiff opposed this application on the ground that the application under Section 13 (3) of the Amending Ordinance No. 26 of 1975 was not maintainable as the same did not apply to pending suits. The learned District Judge by his order dated January 5, 1976, dismissed the application filed by the defendant taking the view that Section 13 (3) (of the Amending Ordinance No. 26 of 1975) did not apply to the suits already pending before the promulgation of this Ordinance.

4. The defendant without prejudice to his application dated 7th Aug. 1975 under Section 13 (5) before the promulgation of the Amending Ordinance, and application under Section 13 (3) dated 24th Oct., 75, after the promulgation of the Amending Ordinance submitted an application on 28th Oct. 1975 under Section 13-A (b) of the Rajasthan Premises (Control of Rent and Eviction) Act as amended by Ordinance No. 26 of 1975. This application has not been disposed of by the trial Court. The learned trial Court heard the arguments on the application filed by the defendant under Section 13 (5) and by its order dated 27th Sept. 1977, dismissed the same taking the view that after the coming into force of the Amending Ordinance No. 26/1975 which was later on replaced by the Amending Act No. 14 of 1976, the tenant can only seek relief under Section 13-A of the Amending Act No. 14 of 1976 and not under the old Section 13 (5) of the Act, 1950. The defendant has filed the present appeal challenging the aforesaid order of the learned trial Court dated 27-9-1977.

5. Mr. Sogani learned counsel appearing on behalf of the defendant-appellant has contended that the provisions of Section 13-A introduced by the Amending Act No. 14 of 1976 are supplementary to the provisions of Section 13 (5) of the Act, 1950, as it existed before the coming into force of the amending Act. Section 13 (4) and (5) before the Amending Act No. 14 of 1976 read as under:

'13 (4)-- In a suit for eviction on the ground set forth in Clause (a) of sub-sec. (1), with or without any of the other grounds referred to in that subsection, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months as 'may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable up to the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate.'

'13 (5)-- If in any suit referred to in Sub-section (4), there is any dispute as to the amount of rent payable by the tenant, the court shall determine, having regard to the provisions of the Act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with the provisions of Sub-section (4).' The amending Act No. 14 of 1976 has now amended Section 13 and has now laid down new sub-sees. (3), (4) and (5). The Amending Act No. 14 of 1976 has further enacted Section 13-A for dealing with the suits and other proceedings pending at the time of the passing of the Amending Ordinance No. 26 of 1975. Section 13-A consists of Clauses (a) to (f). But only Clauses (a) and (b) which are relevant for the purpose of determination of this appeal are reproduced as under:

'Section 13-A: Special provisions relating to pending and other matters. (Notwithstanding anything contrary in this Act as it existed before the commencement of the Amending Ordinance or in any other law).

(a) No court shall, in any proceeding pending on the date of commencement of the (amending ordinance) pass any decree in favour of landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under Clause (b) and pays to the landlord, or deposits in court, within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause;

(b) in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commencement of the (amending ordinance) notwithstanding any order to the contrary, determine the amount of rent in arrears up to the date of the order as also the amount of interest thereon at 6% per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court; and on such payment being made within the time fixed as aforesaid, the proceedings shall be disposed of as if tenant had not committed any default;'

On the basis of the above provisions of law and subsequent changes made therein, learned counsel for the appellant has contended that under Section 13 (5) of the Act as it stood prior to the Amending Act No. 14 of 1976, if there was any dispute as to the amount of rent payable by the tenant, the court was to determine the same in accordance with the provisions of Sub-section (4) according to which the tenant was liable to pay the amount along with interest on such amount calculated at 6% per annum and there was no liability of the tenant to pay costs of the suit. On the other hand according to the learned counsel now there is a liability on the tenant under Section 13-A (b) not only to pay the amount of interest @ 6% per annum but also the costs of the suit. It is, therefore, argued that the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, being a beneficial legislation and enacted for the protection of tenants, it could not have been the intention of the legislature in putting more burden on the tenants of paying costs of the suit also as contained under Section 13-A (b) of the Amending Act and therefore for the pending suits Section 13 (5) should be held applicable in which there was no provision for the payment of costs by the tenant. The learned counsel further submits that Section 13-A of the Amending Act and Section 13 (4) and (5) of the Act, before the amendment can both exist together and the tenant is entitled to take advantage of either of two provisions.

6. The learned counsel for the plaintiff-respondent has contended that the impugned order of the learned District Judge is perfectly correct. According to the learned counsel Section 13-A of the Amending Act is the only provision which can apply in case of pending matters and suits and Section 13 (4) and (5) of the Act before coming into force of the amendment Ordinance No. 26 of 1975 are no longer applicable. Learned counsel has placed reliance on Jagdish Prasad v. Kapoor Chand, 1977 Raj LW 479 : (AIR 1978 Raj 20) and Prabhashanker v. Smt. Rukmani, 1975 WLN 618 : (AIR 1976 Raj 17).

7. I am of the view that there is no force in the contention of the appellant for the reasons given as under:

8. The Rajasthan Premises (Control of Rent & Eviction) Act, 1950, was amended by the Amending Ordinance No. 26 of 1975 which was further replaced by Act No. 14 of 1976. By the amending ordinance the provisions of Section 13 (4) and (5) of the Act have been totally amended and in its place new Sub-sections (3), (4) and (5) have been enacted. Under Sub-section (3) of Section 13 of the amending Ordinance a duty has been cast on the court itself to provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after the filing of the written statement and shall be before the framing of the issues. Under sub-sec. (4) the tenant shall deposit in court or pay to the landlord the amount determined by the court under Sub-section (3) within 15 days from the date of such determination or within such further time not exceeding three months, as may be extended by the court. Under Sub-section (5) if a tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within a time specified therein the court shall order the defence against eviction to be struck out. In my view the above provisions only apply in a suit filed on or after coming into force of the amending ordinance. However the legislature was fully aware to deal with the pending suits and other proceedings by way of appeals, application for revisions etc., pending on the day of the commencement of the amending ordinance and for which special provisions have been laid down by enacting Section 13-A. It is a well settled proposition of law that where there are both special as well as general provisions with regard to a matter special provisions prevail over the general provisions. 1 am fortified in my above view by the following authorities of this court:

Panna Lal v. Balbir Singh 1969 WLN 284 (Raj) and Bhanwar Lal v. Chandra Kanta 1969 WLN 331 (Raj). The above cases also arose at the time when a similar amendment was made in 1965 in Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, by bringing an amending Act which also contained Section 13-A, containing special provisions relating to pending and other matters. It was held that Section 13-A was not subject to Section 13 (4) and that the provisions of Section 13 (4) cannot be applied to a case governed by Section 13-A. In my opinion the contention of the learned counsel for the appellant that the provisions of Section 13-A (b) of the Amending Ordinance No. 26 of 1975 are onerous because a further liability to pay cost has been laid down which was not there under Section 13 (5) is not well founded. This is a special provision which is more beneficial in one way to the tenant because once an amount determined under this provision is paid or deposited, the entire proceedings regarding default shall be disposed of as if the tenant has not committed any default. On the contrary, under Section 13 (5) of the Act prior to the coming into force of the amending Ordinance, the proceedings regarding default did not come to an end and the tenant was required to further deposit the rent by the 15th of each succeeding month and in case he committed a default in the payment of such rent in any month he stood the risk of his defence against eviction to be struck off. In any case the legislature had laid down Section 13-A as a special provision relating to the pending and other matters at the date of commencement of such ordinance and the tenant can only resort to the provisions of Section 13-A in a pending suit. Sub-sections (4) and (5) of the Act prior to the coming into operation of the amending ordinance cannot be brought into effect after the commencement of the amending ordinance and the learned District Judge was right in rejecting the application filed by the appellant under Section 13 (5) of the Act, 1950. As already mentioned above an application under Section 13-A (b) of the Amending ordinance has already been filed by the appellant on 28th Oct. 75, and no order has been passed on such application by the trial Court, the same could now be disposed of in accordance with law.

9. In the result this appeal fails and is dismissed with no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //