1. This Special Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 has been filed against the judgment of learned single Judge of this Court, dated 22-1-1981, in Civil First Appeal No. 55 of 1980 upholding the judgment of the learned District Judge, Jaipur City, Jaipur dated April 26, 1980, in a suit for eviction.
2. The appellant is a tenant in certain premises situated in C-Scheme, Jaipur. The premises were taken on rent from one Moti Lal since deceased in his capacity as a Karta of the joint Hindu family, at Rs. 375 per month, from April 1, 1966. The rent was subsequently increased to Rs. 425 per month w. e. f. October 1, 1972. According to the plaintiffs Govind Narayan and Laxmi Narayan sons of late Moti Lal, the premises in question came in their share in pursuance to an oral partition alleged to have taken place on February 22, 1973. The defendant-appellant was informed about the oral partition by a notice dated December 12, 1973 and was asked to pay the rent to the plaintiffs only. A Civil Suit No. 132 of 1974 (7/75) was filed by the plaintiffs against the defendant-appellant on October 15, 1974 for eviction On several grounds, out of which one ground was that the defendant had neither paid nor tendered rent due from him for six months for the period January 1. 1974 till the date of the suit. The suit was contested on merits and the defendant came up with a case that he was always ready and willing to pay the rent and mentioned certain circumstances in the written statement, on account of which the rent could not be paid. The defendant specifically took the plea that he was not a defaulter as envisaged under Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (hereinafter referred to as the Act). The defendant had further taken the plea that on the date of the suit six months rent was not due as it had been deposited by him under Section 19-A of the Act. On December 6, 1974 the first date of hearing in the suit, the defendant neither paid the arrears of rent nor moved any application under Sub-section 5 of Section 13 of the Act, as it stood prior to the amending Ordinance No. 26 of 1975. The trial court on Aug. 7, 1975 passed an order striking out the defence against eviction. Thereafter the amending Ordinance No. 26 of 1975 came into force w. e. f. Sept. 29, 1975 later on replaced by Act No. 14 of 1976. Under Section 13-A as introduced by the amending Ordinance the defendant filed an application on October 22, 1975 and the Court determined the arrears of rent etc. in terms of Section 13-A (b) vide order dated 17-11-1975. The defendant paid the amount so determined, but the suit was not dismissed as other issues still remained to be tried.
3. The plaintiffs filed this second suit for eviction, out of which the present appeal arises, in the court of District Judge, Jaipur City, Jaipur on April 7, 1977 on the ground that the defendant has neither paid nor tendered the amount of rent due from him from November 1, 1975 to March 31, 1977. Thus this second suit has been filed only on the ground that the defendant again committed default under Section 13 (1) (a) of the Act. This suit was contested by the defendant on the ground that even in the earlier suit he had not committed any default and no benefit of Section 13-A had been taken by him in the earlier suit. Under these circumstances the trial court was bound to provisionally determine the amount of rent to be deposited by him in the court or to be paid to the landlord in accordance with the provisions of Sub-section (3) of Section 13 of the Act as it stands after the amending Act No. 14 of 1976. The defendant further denied the fact of partition between the plaintiffs and other co-sharers and he also denied the fact of being a defaulter. The defendant also denied the receipt of notice and further pleaded that he had deposited rent under Section 19-A amounting to Rs. 3400/- in-between 1-1-1976 to 31-8-1976 in two attempts. The question whether he was a defaulter in the first suit was a disputed matter and as such it cannot be said that he again committed a default for bringing a second suit against him. On the aforesaid pleadings of the parties, the learned trial court framed the following issues:--
(i) Whether the plaintiffs on the basis of allegations made in para No. 12 of the plaint regarding default in payment of rent are entitled to get the premises vacated?
(ii) Whether the plaintiffs have terminated the tenancy of defendant No. 1 by serving a valid notice dated 29-7-74?
(iii) Whether the plaintiffs' suit is liable to be dismissed for not having impleaded the defendants Nos. 2 to 6 as plaintiffs?
From the side of the plaintiffs, the statement of Govind Narayan plaintiff was recorded and Shri V.K. Gupta was examined from the side of the defendant. The trial court decided issues Nos. 1 to 3 in favour of the plaintiffs and decreed the suit in toto. The defendant aggrieved against the Judgment and decree passed by the learned District Judge, filed an appeal in this court and the learned single Judge by his judgment dated January 22, 1981 dismissed the appeal. The learned single Judge in the end allowed six months time to the defendant to vocate the suit premises, provided he paid rent during that period and gave an undertaking in the trial court that after the expiry of the aforesaid period, he would hand-Over vacant possession of the suit premises to the respondents Nos. 1 and 2 (plaintiffs). It was further directed that undertaking shoulld be furnished within 10 days from the date of the order in the trial court.
4. Aggrieved against the aforesaid judgment of the learned single Judge, the defendant had filed the present appeal.
5. The respondents filed a caveat to contest the appeal at the admission stage. Arguments of the learned counsel for both the parties were heard at length. Mr. Kuhar, learned counsel for the respondent first raised a preliminary objection to the maintainability of the appeal. It was contended that the defendant got 6 months time to vacate the suit premises from the learned single Judge and he furnished an undertaking and thus deprived the plaintiffs reap the success of their decree for eviction for such a long period and was now estopped from his conduct to challenge the judgment of the learned single Judge. It is contended that the defendant on the one hand took benefit by giving an undertaking and was not entitled to approbate and reprobate at the same time and should not be allowed to file this appeal challenging the Judgment of the learned single Judge, under which he has derived the benefit. Reliance is placed on Dexters, Ltd. v. Hill Crest Oil Co. (Bradford), Ltd. (1926) 1 KB 348 Kadar Nath Gangagopal Mishra v. Sitaram Narayan Moharil AIR 1969 Bom 221 and Bhau Ram v. Baii Nath Singh AIR 1961 SC 1327.
6. We see no force in the above preliminary objection raised by the learned counsel for the respondents. Learned single Judge allowed six months time to the defendant to vacate the suit premises provided he paid rent during this period and gave an undertaking in the trial court to hand over vacant, possession after expiry of his aforesaid period. There is no question of deriving any benefit by the defendant-appellant so as to disentitle him to file an appeal challenging the aforesaid judgment and decree passed by the learned single Judge. Merely because time is granted to a tenant to vacate the premises and further he is required to give an undertaking to hand-over vacant possession after the expiry of the aforesaid period, it cannot be said that there is any act of approbation and reprobation on the cart of the tenant if he gives an undertaking in pursuance of the aforesaid order. There is no conduct of the defendant appellant so as to disentitle him to file an appeal. The right of appeal is a statutory right and it cannot be denied unless some statutory provision or a well recognised principle of equity deprives him to pursue a statutory right of appeal. In none of the aforesaid cases cited by the learned counsel for the respondent, it has been laid down that a tenant who has been Granted time to vacate the premises and further to give an undertaking that after the expiry of the aforesaid period he shall handover vacant possession, the tenant was denied a right to go in appeal on merits against the judgment and decree of eviction. In Bhau Ram v. Bail Nath Singh's case (AIR 1961 SC 1327) (supra) even their Lordships of the Supreme Court did not approve the proposition as advanced by the learned counsel for the respondents before us. While dealing with the contention raised by Mr. N C Chatarjee on behalf of plaintiff-respondent No. 1 to the effect that, the defendant-appellant was precluded from proceeding with the appeal because subsequent to grant of special leave to appeal he withdrew the price of pre-emption which was deposited by the respondent No. 1 in the court below, it was observed, (at p. 1330).
'It seems to us that a statutory right of appeal cannot be presumed to have come to an end because the appellant has in the meantime abided by or taken advantage of something done by the opponent under the decree and there is no justification for extending the rule in Tinklar's case, (1849) 154 ER 1176 to cases like the present. In our judgment it must be limited only to those cases where a person has elected to take a benefit otherwise than on the merits of the claim in the lis under an order to which benefit he could not have been entitled except for the order. Here the appellant, by withdrawing the pre-emption price has not taken a benefit de-hors the merits. Besides, this is not a case where restitution is impossible or inequitable. Further, it seems to us that the existence of a choice between two fights is also one of the conditions necessary for the applicability of the doctrine of approbate and reprobate. In the case before us there was no such choice before the appellant, and. therefore, his act in withdrawing the preemption price cannot preclude him from continuing his appeal. We, therefore overrule the preliminary objection. The appeal will now be set down for hearing on merits. The costs of this hearing will be costs in the appeal.'
From a perusal of the above observation it would be clear that the defendant-appellant in the case before us has not taken any benefit on the merits of the claim in the lis. So far the period of six months allowed by the learned single Judge has not expired and it is not a case where by any conduct the defendant-appellant has rendered the execution of the decree impossible or inequitable after a period of six months granted to him for vacating the premises by the learned single Judge. The defendant-appellant had neither withdrawn the appeal before the learned single Judge nor had given any statement or undertaking that he would not press the appeal in case six months time was granted to him. In view of these circumstances, if he is availing his right of not vacating the premises within six months and has furnished an under-taking to do so after the expiry of the aforesaid period of six months, it cannot be said by any stretch of imagination that he had in any way lost his right of appeal. Thus we find no force at all in the preliminary objection raised by the learned counsel for the respondent and the same is dismissed.
7. Now we come to the merits of the case. Before dealing with the respective contentions raised by the learned counsel for the parties, it would be profitable to refer the relevant provisions of the Act : Section 13 (1) (a) :
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months. Section 13 (3)
(3) In a suit for eviction on the ground set forth in Clause (a) of subsection (1) with or without any of the other grounds referred to in that subsection, the court shall, 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 filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable 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 such determination 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 determination: Section 13 (6) :
(6) If a tenant makes deposit or payment as required by Sub-section (4) no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the court against him :Provided that a tenant shall not be entitled to any relief under this subsection, if having obtained such benefit or benefits under Section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months.
The main controversy centers round the effect and interpretation of the proviso to Sub-section (6) of Section 13 of the Act. There can be no dispute that when a suit for eviction on the ground setforth in Clause (a) of Sub-section (1) is filed for the first time by a landlord, in that case the court is bound to provisionally determine the amount of rent to be deposited in court or to be paid to the landlord by the tenant under Sub-section (3) of Section 13 of the Act. In such a case under Sub-section (4) of Section 13 of the Act the tenant is required to 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. The tenant is also required to continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period as to which determination has been made, by 15th of each succeeding month or within such further time not exceeding 15 days as may be extended by the court, at the monthly rate at which rent was determined by the court under subsection (3). Under Sub-section (5) of Section 13 of the Act if a tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck down and shall proceed with the hearing of the suit; Then Sub-section (6) of Section 13 lays down that if a tenant makes deposit or payment as required by Sub-section (4) no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the court against him. Proviso to Sub-section (6) then lays down that a tenant shall not be entitled to any relief under this Sub-section, if having obtained such benefit or benefits under Section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months. The question thus calls for determination is whether the case of the defendant-appellant falls within the ambit of the above proviso to Sub-section (6) of Section 13 of the Act or not. Admitted facts of the case are that earlier suit was filed on the basis of default in the payment of rent for more than six months. Suit was contested by the defendant on the ground that he was not a defaulter. The defendant had neither paid nor tendered the amount on the first date of hearing in the suit. He had also not moved an application under Sub-section (5) of Section 13 of the Act as it stood prior to the amendment of 1975. The Court, therefore, had ordered on August 7, 1975 that the defence against eviction of the defendant be struck out. Thereafter Section 13A came as a special legislation by amending Ordinance No. 26 of 1975 replaced by amending Act No. 14 of 1976 granting benefit to the tenants in pending cases. Under Clause (b) of Section 13A it was provided; 'In every such proceedings, the Court shall, on the application of the tenant made within 30 days from the date of commencement of the amending Ordinance notwithstanding any order 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 cent per annum and cost of the suit allowable to the landlord, and directing the tenant to pay the amount as determined within such tune, not exceeding 90 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.' A perusal of the aforesaid provision clearly shows that if an application was made by a tenant within 30 days from the date of the commencement of the amending Ordinance and he deposited the amount determined within the time fixed by the Court and made such payment then as regards the question of default is concerned, there was no question of making any inquiry and the proceeding had to be disposed of as if the tenant had not committed any default. Thus it was a special benefit granted to tenant in cases based on default and which were pending at the commencement of the Ordinance. Thus there is no scope of any argument as contended by Mr. Kasliwal, learned counsel for the defendant-appellant that an inquiry was necessary in the earlier suit on the point of default as the defendant had taken a specific plea that he was not a defaulter. In our view the special provisions relating to pending and other matters made under Section 13-A did not envisage any inquiry and it was for the tenant to seek any benefit or not under the aforesaid provision. In case he had moved an application under the aforesaid provision and the court determined the amount and he paid such amount, the proceeding had to be disposed of as if the tenant had not committed any default. As the defendant in this case had also neither paid nor tendered the rent on the first date of hearing as such his defence against eviction was struck out on 7-8-1975. That suit filed by the plaintiff has been dismissed by the Additional Sessions Judge No. 1, Jaipur City, Jaipur by his judgment dated 28-7-1980 filed under Order 41, Rule 27 C.P.C. before the learned single Judge and a perusal of that Judgment shows that the question of default was decided against the plaintiff on the ground that the defendant had taken benefit of Section 13-A. Mr. Kasliwal, learned counsel for the defendant-appellant though contended before us that the defendant did not take any benefit of Section 13-A but we are in agreement with the finding of the learned single Judge in this regard that he took benefit of the provisions of Section 13-A in the earlier suit and that is why the court did not pass a decree in favour of the plaintiff on the ground of default. In case the defendant would not have taken benefit of Section 13-A in that case the order striking of his defence against eviction passed on 7-8-1975 would have come in his way.
8. Learned single Judge while interpreting the language of Proviso to subsection (6) of Section 13 took the view that the use of word 'again' is not without significance. According to him the common dictionary meaning of 'again' as given in Chambers's 20th Century dictionary is 'once more at some future time'. In this view of the matter he took the view that in order to see as to whether the Proviso to subsection (6) of Section 13 of the Act is attracted or not in a suit based on default in the payment of rent of an accommodation for six months. It is necessary for the court to see as to whether earlier also the tenant had made an earlier default in the payment of rent for the accommodation. As otherwise, it will not be possible for the court to see as to whether the tenant has again made a default in the payment of rent of the same accommodation for six months. Learned single Judge, therefore, held that in his opinion in second suit based on default it was the duty of the court also to record a finding as to whether on an earlier occasion the tenant had made a default in the payment of rent of the accommodation for six months. Having taken the aforesaid view the learned single Judge examined on merits the question whether the defendant-appellant had made a default on an earlier occasion or not. On this question the learned single Judge took the view that in the facts and circumstances of this case, on the material on record, the learned trial court had rightly come to a finding that the tenant had committed a default in the payment of rent for a period of six months on an earlier occasion also. Mr. Kasliwal, learned counsel for the appellant, has vehemently contended that, this finding of the learned single Judge, on merits, that the defendant-appellant committed a default on an earlier occasion, was not correct.
9. We have given our careful consideration to the interpretation given by learned single Judge to the Proviso to Sub-section (6) of Section 13 of the Act, and in our opinion the view taken by the learned single Judge was not correct. The plain reading of the Proviso to Sub-section (6) of Section 13 shows that a tenant shall not be entitled to any relief under this Sub-section if having obtained such benefit or benefits under Section 13-A in respect of such accommodation, and thereafter the words are if he again makes a default in the payment of rent of that accommodation for six months. Thus as regards applicability of the Proviso is concerned nothing more has to be proved by the landlord except that the tenant had obtained a benefit under Section 13-A in respect of such accommodation on an earlier occasion. In our view it is not at all necessary to make an inquiry in the second suit whether the tenant had made a default or not. The intention of the legislature in laying Proviso was to find out whether such tenant had obtained benefit or benefits under Section 13-A or not. Once such benefit was obtained under Section 13-A on an earlier occasion it was a sine qua non for ft tenant to resist a second suit on the basis of default in the payment of rent for six months. The word 'again' used in the context and background here means nothing more than a subsequent action of making a default for 6 months. As already observed above Section 13-A was brought into force as a matter of general benefit to all the tenants against whom suits were pending on the ground of default. Once having taken that benefit, legislature clearly laid down a mandate in the Proviso to Sub-section (6) of Section 13 that such tenant shall not be entitled to get determination of rent and the benefit of its deposit as contemplated in Sub-section (4) of Section 13. In this view of the matter there hardly arises any question if holding an inquiry in the second suit about the question whether a tenant was in fact defaulter 'or not in the earlier suit, if he had obtained such benefit under Section 13-A. The intention of the legislature also becomes clear from the fact that in the Proviso to Sub-section (6) only the circumstance regarding benefit obtained under Section 13-A has been mentioned and it does not speak of any benefit derived by the tenant where he had paid or tendered the amount of arrears of rent on the first date of hearing in the earlier suit or had paid or deposited the amount after determination of such amount on his application moved under Sub-section (5) of Section 13 of the Act as it stood prior to the amending Act No. 14 of 1976. This shows a clear intention of the legislature that no inquiry can be held in case where benefit has been obtained on an earlier occasion under Section 13-A. We are further of the opinion that when under the Provisions of Section 13-A itself no inquiry was contemplated, how could it be granted in proceedings in a subsequent suit. We find support in our view in the following observations made by C. M. Lodha J. (as he then was) in Sobh Rai v. Bhanwar Lal, 1974 Rai LW 251 (252) : (AIR 1975 Rai 196 at P. 199):
'Another point urged by the learned counsel for the appellant is that proviso to Section 13 (7) cannot apply fn the present case inasmuch as it is not proved that the appellant had committed default previously. It is true that in the previous suit no enquiry was held into the allegations of default because the appellant had applied under Section 13A of the Act within the time prescribed therein, and consequently the suit for ejectment was dismissed without holding any inquiry into the allegations made by the parties. The proviso however makes it clear that a tenant shall not be entitled to any relief under this Sub-section (Sub-section (7)) if having obtained such benefit or benefits under Section 13-A in respect of any such accommodation, he again makes a default in the payment of rent of that accommodation for six months. It is not the requirement of law that there must be a finding as to the previous default. What is required is that the tenant must have obtained the benefit under Section 13-A. That the appellant has admittedly done that previously. As already held above he has again made a default in the payment of rent for more than six months and consequently he cannot save himself from eiectment by making deposit under Section 13 (4)'.
10. Mr. Kasliwal, learned counsel for the appellant, also contended that the learned trial court neither allowed an opportunity to cross-examine the plaintiffs nor a specific issue was framed on the point of default in the earlier suit and the case of the defendant has been seriously prejudiced on that account. Learned single Judge in this regard has taken the view that the parties were conscious of the controversy and led evidence. We are in agreement with the aforesaid view of the learned single Judge, that apart as we have taken the view that no enquiry with regard to the previous default was necessary in this case, in this view of the matter also there is no force in the contention raised by Mr. Kasliwal.
11. Thus we find no force in the appeal and the same is dismissed with no order as to cost.
12. The defendant appellant is allowed three months time from today, to vacate the suit premises, provided he furnishes an undertaking within 10 days in the court of District Judge, Jaipur City, Jaipur to vacate the suit premises within the aforesaid time.