1. This is a second appeal by the plaintiffs in a suit for ejectment.
2. Appellants Daulat Ram and his two sons Deo Raj and Madan Ram instituted a suit against Lakhu Mal and Sobhagmal for recovery of arrears of rent and ejectment, on the allegation that the defendants had taken on rent the plaintiffs' three shops in the town of Barmer at a certain rent, but in proceedings relating to the fixation of standard rent the rent of two shops Nos. 9 & 10 was fixed at Rs. 20/- p.m. from 1-7-49 and that of shop No. 21 was fixed at Rs. 12/- p.m. from 1-9-49.
It was alleged that the rent had fallen in arrears to the extent of 258/3/- and the defendants were not prepared to vacate the shops in spite of notice. The plaintiffs claimed Rs. 258/3/- and also prayed that the defendants be ejected. The suit was instituted on 2-7-53.
3. The defendants pleaded that they were ready and willing to pay rent and claimed certain deductions about the remittances which they alleged they had made. They also made an application that the court should determine the arrears, which they were willing to pay with costs and interest, and relieve the defendants from the liability of ejectment. The learned Munsif determined that a sum of Rs. 393/7/- was due to the defendants and the amount was paid by the defendants within the period permitted by the court.
The learned Munsif dismissed the suit by placing reliance on Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The plaintiffs filed an appeal which was dismissed by the District Judge Balotra. They filed a second appeal which came before a learned Single Judge of this Court. It was contended before the learned Judge that the protection afforded by Section 13(4) was not available to a tenant who was in arrears on more than three occasions for a period of 2 months each within a period of 18 months. The learned Judge was of opinion that the decisions of this Court were not uniform as to the interpretation of Section 13(4) and referred the following question for decision to a division bench:--
'Whether the second proviso to Section 13(1) (a) would prevail over Section 13(4) and if the tenant had made the defaults mentioned in the second proviso to Section 13(1) (a) as it stood before the Amendment Act, he could not get the benefit of Section 13(4)'.
The division bench in turn has referred this question to a Full Bench.
4. In Girraj Prasad v. Dhakan Bai, 1955 Raj LW 378 Sharma J. and in Suraj Narain v. Khawas Bala Bux, 1955 Raj LW 379: ILR (1955) 5 Raj 487 Ranawat J. were of opinion that the protection given by Section 13(4) was not available to a tenant when he was in default in the payment of rent on three occasions for 2 months at a time within a period of 18 months. A contrary opinion was held in Daulatram v. Bhomraj, 1955 Raj LW 373 : ILR (1955), 5 Raj 454 to which one of us Dave J. was a party and the view taken in that case was that a tenant in the circumstances mentioned above was also entitled to protection under Section 13(4).
5. The point came up for discussion before a division bench of this Court in Shambhuram v. Mangal Singh, 1958 Raj LW 574: ILR (1958) 8 Raj 501: (AIR 1959 Raj 59) but no opinion was expressed as the case could be decided on other points. The relevant provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (as it stood prior to Amendment Act No. XXIV of 1958) are as follows:--
''Section 13. Eviction of tenants:--
(1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied--
(a) that the tenant has neither paid nor tendered the amount of rent due from him for any two months;
Provided that no eviction shall be ordered under this clause if the tenant pays in court on the first day of hearing such arrears of rent together with the costs of the suit.
Provided further that the tenant shall not be entitled to the benefit of protection against eviction under this clause if he has made a like default in payment of rent on three occasions with-in a period of eighteen months; or
(4) In a suit for eviction on the ground set forth in Clause (a) of Sub-section (1), if it is not dismissed for either of the reasons stated in the provisos thereto, the court shall on the first day fixed for the hearing thereof by order determine the amount of rent due from the tenant, which is in arrears, up to the date of such order as also the amount of interest thereon at the rate of six per centum per annum and of the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amounts so specified on or before a date fixed thereby, which shall not be beyond the fifteenth day from, but exclusive of the date thereof. If on or before the date so fixed for payment, the tenant deposits in court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord'.
6. Section 13(4) says that if the suit for eviction is not dismissed for either of the reasons stated in the provisos to Clause (a) of Sub-section (1), the court shall determine the amount of arrears due as also the interest and costs, and if the same are paid on the date fixed, the suit shall be dismissed. The applicability of Sub-section (4) arises when the suit is not dismissed for either of the reasons stated in the provisos to Clause (a) of Sub-section (1).
The first proviso says that a suit shall be dismissed if the tenant pays in court on the first day of hearing the arrears of rent together with costs of the suit. This is, therefore, one contingency when the suit will not be dismissed i.e. when the tenant does not pay the arrears and costs. Now, the second proviso says that the protection which is afforded to the tenant in 'this clause' i.e. the first proviso will not be afforded to him if he has made a default in payment of rent for two months on three occasions within a period of 18 months.
According to this proviso, even if the tenant pays the arrears of rent and costs, but the default as mentioned in the proviso is made, the suit will continue and the tenant will not be given the protection. Each of the two provisos thus discloses contingencies in which the suit shall not be dismissed, and Sub-section (4) therefore comes into play when suit is not dismissed in either of the two contingencies viz., (1) when the tenant does not make payment as provided by the first proviso or (2) when he has acted in a manner mentioned in the second proviso and he is not permitted to get protection available to him under the first proviso.
According to the plain language of Sub-section (4) of Section 13, power has been conferred on the court to grant protection in either case if the tenant pays the amount found due and payable to the landlord according to the calculation to be made by the court. As stated above, Sub-section (4) is applicable if the suit for arrears is not dismissed 'for either of the reasons stated in the provisos' to Clause (a) of Sub-section (1) of Section 13, As discussed above each one of the provisos refers to contingencies when the suit is not to be dismissed.
7. It may be mentioned that the protection given by the first proviso to Clause (a) of Sub-section (1) becomes available on payment of arrears of rent and costs. The protection under Sub-section (4) imposes a further liability of interest on theamount due. It may also be noted that while the protection under the first proviso to Clause (a) of Sub-section (1) becomes available when the tenant pays the arrears for which the suit is brought, under Sub-section (4) it is not only the arrears claimed which have to be paid, but also the arrears up to the date of the order have to be paid.
8. The scheme of the Act can be understood by reference to the opening words of Sub-section (1). It is directed that no court shall pass any decree or make any order whether in execution of a decree or otherwise evicting a tenant so long as he is ready and willing to pay rent to the full extent allowed by the Act, Certain exceptions and certain riders or provisos are then mentioned. Then, comes Sub-section (4).
It appears to us that the legislature intended that so long as the landlord can get all the rent which is due to him, relief is to be given to the tenant except in certain special cases. The relief is provided at one stage in Clause (a) of Sub-section (1) where on voluntary payment the eviction of the tenant is to be withheld. A further stage has been provided under Sub-section (4) where on payment of certain additional amounts the same protection is afforded to the tenant.
9. It may be mentioned that even under the ordinary law Section 114 of the Transfer of Property Act allows a court in its discretion to grant relief against forfeiture of tenancy on non-payment of rent if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days.
The preamble of the Act discloses the purpose for which the enactment was made and it was fof the control of evictions from, letting of and to provide for rent of certain premises and for other ancillary matters. We do not see anything incongruous or out of harmony in the Act in providing protection to the tenant against eviction, as provided in Clause (a) of Sub-section (1) and Sub-section (4) of sec. 13, to be taken advantage of by the tenant at different stages. We are of opinion that the view of law taken in 1955 Raj LVV 373: ILR (1955) 5 Raj 454, is correct.
10. The question referred by the Single Bench is, therefore, answered as follows :
11. The second proviso to Section 13(1) (a) does not prevail over Section 13 (4), but on the other hand Section 13(4) is applicable when the tenant does not take advantage of the first proviso or is prevented from taking advantage thereof owing to defaults mentioned in the second proviso. In other words the tenant is entitled to the protection provided by Section 13(4) even if he has made default mentioned in the second proviso to Section 13(1) (a) as it stood prior to Amendment Act No. XXIV of 1958.
12. The case will now go back to the learned Single Judge for decision according to law.