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Hanuman Prasad Vs. Gaindi Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 473 of 1972
Judge
Reported inAIR1974Raj41; 1973()WLN626
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(4), 13(5), 13(6), 13(7) and 13A
AppellantHanuman Prasad
RespondentGaindi Lal
Appellant Advocate N.M. Kasliwal and; S.R. Joshi, Advs.
Respondent Advocate K.N. Tikku, Adv.
DispositionRevision allowed
Excerpt:
.....13(4)(5)(6) & (7) and 13a--tenant having obtained benefit under section 13a again makes a default in payment of rent for 6 months--whether his defence be struck out under sub-section (6) or pay amount under sub-section (4) or (5).;even though the defendant cannot save himself from ejectment by making the deposit or payment under sub-section (4) of sub-section (6) of section 13 of the act, yet he is liable to have his defence struck out on account of non compliance of the same. it appears to me therefore that sub-section (6) of section 13 cannot be pressed into service against a tenant to whom the benefit under sub-section (7) is not available. since the case of the defendant falls under the proviso to sub-section (7), the penalty provided under sub-section (6) of striking out..........plaintiff made an application on 15-7-1971 under section 13 (6) of the act praying that since the tenant's application under section 13 (4) of the act had been dismissed and the had not deposited the arrears of rent along with interest on the first date of hearing i.e. 22-11-1968 his defence may be struck out. the learned munsiff by 'his order dated 2-8-1971 allowed the application and struck put the defence of the tenant against eviction.3. aggrieved by the order of the learned munsiff, the defendant-tenant filed appeal but the same was dismissedby the learned additional district judge no. 2. jaipur city by his order dated8-8-1972. hence this revision by the defendant-tenant.4. learned counsel for the petitioner has urged that the courts below had no jurisdiction, to strike out the.....
Judgment:
ORDER

C.M. Lodha, J.

1. This revision application by the defendant-tenant raises an interesting question though a short one. The question is whether a tenant who having obtained benefit under Section 13-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') again makes a default in the payment of rent for six months is liable to have his defence against eviction struck out under Section 13 (6) of the Act on account of his failure to deposit or pay any amount referred to in sub-section (4) or sub-section (5)? It arises in the following circumstances:--

2. The defendant-petitioner took the suit shop on rent from the plaintiff-non-petitioner on 1-12-1953 on a monthly rent of Rs. 25/-. The plaintiff filed a suit for ejectment on the ground of default in payment of rent. During the pendency of the suit Section 13-A was introduced and in accordance with Section 13-A the tenant paid the rent, interest and costs with the result that thesuit for ejectment was dismissed on 4-7-1966. Thereafter the plaintiff brought a second suit for ejectment on 4-7-1968 inter alia on the ground that the defendant had again committed default in payment of rent for the period commencing from 1-8-1966 to 19-6-1968. The date of first (hearing of the suit was 22-11-1968. After taking one adjournment the defendant filed written statement on 3-1-1969. He pleaded inter alia that he remitted monthly rent to the landlord time and again by money orders but the landlord went on refusing with a view to create a ground for ejecting him on the ground of default. He further pleaded that in spite of refusal of the landlord to accept the money-orders, he deposited the full arrears of rent under Section 19-A of the Act and nothing was due from him upto 17-8-1968. Thus his case was that he had not committed any default in payment of rent and the suit for ejectment on the ground of default was not maintainable. On 25-2-1969 the defendant submitted an application under Section 13 (4) of the Act stating that he had deposited an amount by way of rent more than claimed by the plaintiff, yet by way of abundant caution he prayed that it may be determined whether after making allowance for the default under Section 19-A, any amount remained due from him, and if so a direction may be given in accordance with the law so that the defendant may deposit the same. This application was opposed by the landlord who filed a written reply wherein he contended that the defendant had already taken benefit of Section 13-A in the previous suit and therefore he was not entitled to save himself from ejectment by making the deposit under Section 13 (4). After hearing arguments on this application the Court by its order dated 26-4-1969 directed that an issue be framed whether the defendant has committed a second default in payment of rent. It was, however, held that the application under Section 13 (4) was not maintainable. The case then proceeded to trial After some evidence had been recorded, the plaintiff made an application on 15-7-1971 under Section 13 (6) of the Act praying that since the tenant's application under Section 13 (4) of the Act had been dismissed and the had not deposited the arrears of rent along with interest on the first date of hearing i.e. 22-11-1968 his defence may be struck out. The learned Munsiff by 'his order dated 2-8-1971 allowed the application and struck put the defence of the tenant against eviction.

3. Aggrieved by the order of the learned Munsiff, the defendant-tenant filed appeal but the same was dismissedby the learned Additional District Judge No. 2. Jaipur City by his order dated8-8-1972. Hence this revision by the defendant-tenant.

4. Learned counsel for the petitioner has urged that the Courts below had no jurisdiction, to strike out the tenant's defence under Section 13 (6) of the Act for allegedly not depositing or paying the amount referred to in sub-section (4) or sub-section (5) of the Act, because 'the 'benefit of the deposit even if made would not have been available to the tenant on 'account of proviso to sub-section (7) of Section 13.

5. It is incontrovertible that the defendant is not entitled to any relief under sub-section (71 of Section 13 on account of 'his having obtained benefit under Section 13-A and this is precisely the plaintiff's case. For the sake of convenience I may reproduce (here Section 13 (4) to (7) :--

'(4) 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 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 therein upto 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 upto 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.

(5) If in any suit referred to in subsection (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 this 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).

(6) If a tenant fails to deposit or pay any amount referred to in sub-section (4) or sub-section (5), on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.

(7) If a tenant makes deposit or payment as required by sub-section (4) or sub-section (5), no decree for eviction onthe ground specified in Clause (a), ofsub-section (1) shall be passed by the Court but the Court may allow such costs as it may deem fit to the landlord: Provided that a tenant shall not be entitled to any relief under this subsection if having obtained such benefit or benefit 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.'

6. Now the point is Whether even though the defendant is not entitled to the benefit available to a tenant under sub-section (71 on account of 'proviso below it, is he still liable to be penalised under sub-section (6) for non-compliance with the provisions of subsection (4) or sub-section (5)? Learned counsel for the parties submit that there is no case law available on the point. The matter is therefore to be decided on first impression and on the interpretation of the provisions of the Act.

7. It may be pointed out that sub-sections (4) and (5) have been introduced for the benefit of the tenant so that in case of first default he may protect himself against ejectment by making the required deposit or payment as provided therein. But in case of a tenant who has 'Committed a second default, as mentioned in the proviso to sub-section (7) no such benefit is available. It is a principle of jurisprudence that rights and liabilities are correlative. Consequently if a certain provision of law provides a benefit to a class of persons on performance of the act mentioned therein the penaly prescribed for non-performance of the act cannot be meted out to a person who cannot avail of the benefit of such provision. It would, thus be incongruous to say that even though the defendant cannot save himself from ejectment by making the deposit or payment under sub-section (4) or sub-section (5) of Section 13 of the Act, yet he is liable to have his defence struck out on account of non-compliance of the same. It appears to me therefore that sub-section (6) of Section 13 cannot be pressed into service against a tenant to whom the benefit under subsection (7) is not available. Since the case of the defendant falls under the proviso to Sub-section (7), the penalty provided under sub-section (6) of striking out the defence cannot be meted out to him.

8. There is yet another aspect of the case, which must not be lost sight of. The plaintiff-landlord has 'taken a queer position. The tenant came forward with a plea that he had not committed any default and that he had made the full deposit of the amount of rent as required by sub-section (4) ofSection 13, under Section 19-A of the Act. By way of abundant caution he also made an application under Section 13 (4) on 25-2-1969. It is true that this application was not made on the first date of hearing but that is not material, for the plea taken by the plaintiff in the reply filed by him to that application was that no application under Sec. 13 (4) was maintainable as the tenant had committed a second default. Having succeeded in getting that application dismissed on the ground of second default, he turned round and made an application under Section 13, sub-section (6) praying that since no application had been made under Section 13 (4), 'the defendant's defence should be struck out. This is nothing but a game of hide and seek which Courts cannot countenance. Apart from that due attention must also be paid to the fact that according to the case set up by the defendant he had made full deposit as required by law even after the institution of the suit under Section 19-A and his case in nutshell is that he had deposited the amount an excess of the rent claimed by the landlord and nothing was due from him to 'be deposited on the first date of hearing. However, no enquiry was made on this point apparently because the plaintiff did not want any such enquiry to be made and he tried to snap the defendant's case by resorting to the provisions of Section 13 (6) which, as held by me in 'the earlier part of this judgment, has no application to the facts and circumstances of the present case.

9. The result of the foregoing discussion is that the defendant's defence has been wrongly struck out. This revision application is, therefore, allowed; the orders of the courts below are set aside and the trial Court is directed to proceed in accordance with law. No order as to costs.


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