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Jorawar Mal Vs. Gyan Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 170 of 1973
Judge
Reported inAIR1975Raj144; 1975()WLN104
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 19A; Code of Civil Procedure (CPC) , 1908 - Sections 141 - Order 23, Rule 1
AppellantJorawar Mal
RespondentGyan Chand
Appellant Advocate S.K. Mal Lodha, Adv.
Respondent Advocate P.C. Mathur, Adv.
DispositionRevision partly allowed
Cases ReferredPartap Chand v. Ram Swaroop
Excerpt:
.....1 and rajasthan premises (control of rent & eviction) act, 1950--sections 19a, 19b and 19c--rent deposited by tenant under section 19a--held, court can order refund of rent to tenant but it could do it for good reasons.;the court can pass an order that the amount deposited by the tenant may be returned to him.;the two courts below granted the application on the assumption that he had a right to withdraw his application and accordingly the money, by mere asking under the provisions of order 28 rule 1 c.p.c. i am unable to endorse this view and in my opinion and for the reasons recorded above the court has power to order refund in certain circumstances, but it can exercise its power only for good reasons. in the present case there being no reason whatsoever the tenant is not..........of rent, the court shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of rent to be paid to him and such payment of rent shall be a full discharge of the court from all liability to pay rent to the landlord :provided that no order for payment of any deposit of rent shall be made by the court under this sub-section without giving all persons named by the tenant in his application under sub-section (3), as claiming to be entitled to payment of such rent, an opportunity of being heard and such order shall be without prejudice to the rights of such persons to receive such rent being decided by a court of competent jurisdiction.explanation : for the purposes of this section and sections 19-b and 19-c, 'the court' with respect to.....
Judgment:

1. The facts leading to this revision application are as follows :

There is a shop situate in Merta City of which Jorawarmal is the landlord and Gyan-chand is the tenant. The shop has been on a monthly rent of Rs. 41/75 from 28-11-1965. The rent was payable according to Hindi calendar month. Jorwarmal served a quit notice on the tenant on 24-3-1968 calling upon him to surrender possession upto 28-4-1969. The tenant having failed to surrender possession, a suit for ejectment was filed on 19-8-1969 in the Court of Munsif, Merta. The eviction was sought on the ground of personal necessity. That suit for ejectment was dismissed by the trial Judge. Jorawarmal unsuccessfully appealed to the District Judge, His second appeal No. 162/1974 has been pending in this Court.

2. Gyan Chand submitted an application in the Court of Munsif under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') on 9-9-1970. It was alleged by him that he tendered rent to the landlord several times and also sent money orders but the rent was not accepted by Jorawar Mal. He made a last attempt on 31-8-1970 by which he remitted Rupees 835/- by money order towards rent for 20 months. But that money order was also refused by the landlord on 3-9-1970. Accordingly it was prayed by him that the money be deposited in the Court.

It was further prayed that the rent be paid to Jorawar Mal and it may be held that the rent was validly tendered to him. The payment of Rs. 835/- was offered by a tender. The learned Munsif allowed the payment to be made and issued a notice to Jorawar Mal. On 11-12-1970 on behalf of Jorawarmal a reply was filed. It was stated therein that he determined the tenancy of the tenant by his notice dated 24-3-1969 as he required the shop for his bona fide and personal necessity. He was not In a position to accept the rent when it was sent to him by money order after that date. It was also alleged by him that the tender was not made in accordance with law.

3. The controversy between the parties was going to be enquired, into by the learned Munsif but on behalf of Jorawar Mal the decision of this court in Partap Chand v. Ram Swaroop, 1972 WLN 498 = (AIR 1973 Raj 22) was referred to, in which it was held that it was not for that court to determine as to whether the tender was in accordance with law and it is for the Court, where a suit for ejectment on the basis of default is filed, to determine whether the amount was properly tendered and deposited under the Act, and whether the deposit has the effect of lawful discharge of rent. Gyan Chand then on 25-9-1972 submitted an application that he did not want to pursue his application under Section 19-A and desired to withdraw it. He prayed that his application under Section 19-A be dismissed and the amount deposited by him may be allowed to be withdrawn.

It might be noticed here that after the deposit of Rs. 835/- on 9-9-1970 the rent for subsequent months was also deposited by Gyan Chand and in this manner the amount deposited by him under the Act came to be approximately Rs. 1,800/-. The application for withdrawing the amount deposited under the Act was opposed on behalf of Shri Jorawarmal. It was argued on his behalf that the Act does not envisage the withdrawal of the money deposited by a tenant under the provisions of the Act. On behalf of Gyan-chand it was contended that by virtue of Section 141, Civil P. C. the provisions of Civil P. C. were applicable and Order 23, Rule 1 of the Code permitted a party to withdraw his application which includes withdrawal of money. The learned Judge by his order dated 6-10-1972 allowed the application of withdrawal and permitted the withdrawal of the money deposited by him. He, however, levied costs of Rs. 25/- to be paid to the landlord by the tenant. This order was challenged by Jorawar Mal in appeal and the case was dealt with by Civil Judge, Merta. He agreed with the view taken by the learned Munsif and affirmed the order passed by him on 12-3-1970. It is this that has been challenged in revision in this Court.

4. Learned counsel for the parties have addressed this Court at length. The main submission of Mr. Mathur is that the provisions of the Civil P. C. are applicable to the proceedings under the Act. He invited my attention to Section 28 of the Act which reads as under :

'Section 28-- Act not to be derogatory of other laws : The provisions of this Act shall be in addition to and not derogatory of, any other law on the subject for' the time being in force in the whole or any part of Rajasthan.'

5. According to this, Act is not derogatory to the other laws. The provisions of this Act shall be in addition to it and not derogatory to any other law on the subject for the time being in force in whole or in part thereof. The submission of Mr. Mathur is that those provisions contained in Civil P. C. which are not inconsistent to the provisions of this Act are clearly attracted by virtue of Section 28 of the Act and Sec. 141, Civil P. C. Section 141 lays down :

'The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.'

6. Mr. Lodha, on the other hand, contended that the provisions contained in the Act are complete in themselves. The provisions regarding deposit of rent and its disposal are set out in Sections 19-A, 19-B and 19-C. It was also urged by him that even if the provisions of Civil P. C. are applicable the tenant has no right to withdraw the money once deposited by him in view of the provisions in Section 19-C of the Act. Here reference may be made to Sections 19-A, 19-B and 19-C.

'Section 19-A-- Deposit of rent by tenant-- (1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.

(2) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Sub-section (1) or where there is bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Court and such deposit of rent shall be a full discharge of the tenant from the liability to pay rent to the landlord.

(3) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely--

(a) The accommodation for which the rent is deposited with a description sufficient for identifying the premises;

(b) the period for which the rent is deposited;

(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;

(d) the reasons and circumstances for which the application for depositing, the rent is made.

(4) The application referred to in Sub-section (3) shall bear a Court fee stamp of Rs. 2/- and shall be accompanied by requisite postal stamps for sending the notice and a copy of application under Sub-section (5).

(5) On such deposit of the rent being made, the Court shall send notice of the deposit by registered post acknowledgement due and also send a copy or copies of the application to the landlord or persons claiming to be entitled to the rent with an endorsement of the date of deposit; and a copy of such notice shall be affixed on the notice board of the Court.

(6) If an application is made for the withdrawal of any deposit of rent, the Court shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of rent to be paid to him and such payment of rent shall be a full discharge of the court from all liability to pay rent to the landlord :

Provided that no order for payment of any deposit of rent shall be made by the Court under this sub-section without giving all persons named by the tenant in his application under Sub-section (3), as claiming to be entitled to payment of such rent, an opportunity of being heard and such order shall be without prejudice to the rights of such persons to receive such rent being decided by a Court of competent jurisdiction.

Explanation : For the purposes of this section and Sections 19-B and 19-C, 'the Court' with respect to any local area means any civil court which may be specially authorised by the State Government by notification in this behalf, or where no civil court is so authorised,

(i) the court of the Munsiff, and

(ii) the court of the Civil Judge, where there is no court of Munsif having jurisdiction over area.'

'Section 19-B-- Time for deposit and effect of deposit made within time. No rent deposited under Section 19-A shall be considered to have been validly deposited under that section, unless the deposit is made within fifteen days of the time referred to in Sub-section (1) of that section for payment of the rent; and the deposit made within the lime aforesaid shall constitute payment of rent, to the landlord, as if the amount deposited had been validly tendered.'

'Section 19-C-- Saving as to expenses of rent and forfeiture of rent in deposit--(1) The withdrawal of rent deposited under Section 19-A in the manner provided therein shall not operate as an admission against the person withdrawing it of the correctness of the rent, the period of default, the amount due, or of any other facts stated in the tenant's application for depositing the rent under the said section.

(2) Any rent in deposit which is not withdrawn by the landlord or by the persona entitled to receive such rent shall be forfeited to Government by an order made by the court, if it is not withdrawn before the expiration of three years from the date of posting of the notice of deposit.

(3) Before passing an order of forfeiture the Court shall give notice to the landlord or the person or persons entitled to receive the rent in deposit by registered post acknowledgement due at the last known address of such landlord or person or persons and shall also publish the notice on the notice board of the court and if the amount of rent exceeds one hundred rupees shall also publish it in any local newspaper.'

7. These provisions were added in the Act in the year 1965 by the Amending Act No. XII of 1965 and they were introduced to ameliorate the lot of the tenants and save them from harassment by landlords. Section 19-A authorises the tenant from whom the landlord does not accept the rent tendered by him within time or where there is bona fide doubt as to the person or persons to Whom the rent is payable, to deposit the rent in the Court which shall be treated to be the full discharge of the tenant from liability to pay rent to the landlord. Sub-sections (3), (4) and (5) lay down the procedure as to how the application has to be made, and what it should contain, how notice has to be issued after deposit, and provides for the payment of the amount of the landlord.

8. Section 19-B relates to the time as to when the deposit can be validly made and the effect of deposit, if made within time. Section 19-C lays down that the withdrawal of rent will not operate as an admission as to the correctness of the facts stated by the tenant in his application for deposit. It also provides for the forfeiture of the amount to the Government, if it has not been withdrawn within three years. Sub-section (3) of this section again lays down that before the Court passes an order forfeiting the amount to the Government a notice has to be given to the landlord in the manner prescribed in this section. The object of this notice is, as urged by Mr. Lodha, to give him a last opportunity to accept the rent. The question that needs be answered is as to whether these provisions permit the withdrawal of the money by the tenant who deposited the amount. There is no manner of doubt that Section 19-A, 19-B and 19-C do not say so. Mr. Mathur places reliance on Order 23, Rule 1, Civil P. C. Assuming for a moment that the provisions of Civil P. C. are applicable to the proceedings under the Act even then I am unable to see how Rule 1 of Order 23, Civil P. C. helps the tenant in this case. The application for deposit was made on 9-9-1970 by a tender. It was requested by the tenant in his application that the rent be deposited and it may be paid to Jorawar Mal. In pursuance to this, rent was deposited and notice issued to Jorawar Mal. It was further prayed that it may be held, that the rent was validly tendered. As a matter of fact this was no job of the Munsif receiving the money. This position has been made clear by Jagat Narayan, J. as he then was, in 1972 WLN 498 = (AIR 1973 Raj 22). The amount that was offered by tender was deposited. Thus the act was accomplished, Order 23, Rule 1, Civil Procedure Code does not contemplate in my opinion to undo what has been done or to return what has been deposited or spent. Order 23, Rule 1, Civil P. C. reads as follows :

'Rule 1 : At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.

(2) Where the Court is satisfied--

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.

(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.'

9. Under this rule the tenant could have asked the court that he did not want to press the prayer that he had made. The rule does not permit him to take the money back which was deposited in the Court by tender. The matter which was pending at that time when the tenant made the application under Order 23, Rule 1, Civil P. C. was only this much as to whether the amount was tendered validly by the tenant to the landlord. He could have very well withdrawn this prayer. I am also unable to accept the contention submitted by Mr. Lodha on the extreme that the Court had no power to order the refund of the money deposited by the tenant since it is not covered by the provisions of the Act referred to above. It is true that Sections 19-A, 19-B and 19-C do not contemplate that power. But I very well see that a situation may arise when the refund of the money deposited by the tenant may become necessary. I am not prepared to hold that the Court is powerless in not ordering the refund of the money deposited by a tenant in any circumstances. To illustrate my point there may be a case where the tenant settles the dispute with the landlord out of Court and pays him the money doe to him out of Court. The money deposited by him earlier under Section 19-A will have to be refunded in these circumstances. Again, after the expiration of three years a notice will have to go to landlord to give him the last opportunity if he is prepared to accept the rent. The Court may not like to forfeit the amount of rent to the Government looking to the circumstances of the case or the financial condition of the tenant. The Court 'can pass an order that the amount deposited by the tenant may be returned to him. In this view of the matter I am unable to hold that the Court has no such power as suggested by Mr. Lodha relating to the return of the money to the tenant who has once deposited in the Court.

10. Next question that deserves consideration is as to whether the two Courts below were right in allowing the application of withdrawal filed by the tenant. On the perusal of the application dated 25-9-1972 I find that no reasons have been given by the tenant as to why he claimed the withdrawal. The only fact stated by him in the application is that the opposite party has raised some technical objection. As to what the technical objection was, has not been stated, and on this ground he claimed the return of the money. This power which I have held above vests in the Court cannot be exercised merely on the whim of the tenant. In this case he made the deposit on 9-9-1970 and in subsequent months, which deposit comes to nearly Rs. 1,800/-. Mere asking for the return of the money for no good or cogent reason could not have been allowed. The two Courts below granted the application on the assumption that he had a right to withdraw his application, and accordingly the money, by mere asking under the provisions of Order 23, Rule 1, Civil P. C. I am unable to endorse this view and in my opinion and for the reasons recorded above the Court has power to order refund in certain circumstances, but itcan exercise its power only for good reasons.In the present case there being no reasonwhatsoever the tenant is not entitled to claimthe refund of the money deposited by himunder Section 19-A of the Act.

11. One of the contentions of Mr. Mathur is that when the rent is deposited under Section 19-A the title to the money does not pass to the landlord. He drew my attention to the tender form and the rules relating to the deposit. I am unable to accept this contention on the simple ground that a tenant deposits the rent under Section 19-A of the Act. He has to mention in his application by virtue of Section 19-A (3) (c) as to whom the amount is payable. I, however, accept that the money thus deposited does not, ipso facto, become the property of the landlord but at the same time the tenant has no hold over it since he bad deposited the money within special provisions of the Act to be paid to the person specified by him. The landlord of course has a right to withdraw the money. Section 19-A (6) has also been relied upon but in my opinion it does not help him. It is true that the landlord has to make an application for withdrawing the money. It does not, however, lend support to the argument that the tenant can also withdraw the money at his choice. As discussed above the money thus deposited will remain in deposit unless it is forfeited to the Government by an order of the Court, which order cannot be passed without once again giving a notice to the landlord within the meaning of Section 19-C (3).

12. Another argument of Mr. Mathur that deposit of rent in Court is only an offer is hardly tenable. It has been noticed above that he deposits the rent under the provisions of Section 19-A of the Act making it payable to the landlord. It remains deposited in the Court irrespective of the fact that the landlord accepts it or not.

13. In the result the revision application succeeds in part. Order passed by the two courts below permitting refund of the amount of rent to the tenant is set aside. In the circumstances of the case there will be no order as to costs.


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