Skip to content


MartIn and Harris Pvt. Ltd. Vs. Prem Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberFull Bench Civil Reference in Civil Revn. No. 173 of 1973
Judge
Reported inAIR1974Raj136; 1974(7)WLN140
ActsRajasthan Premises (Control) of Rent and Eviction) Act, 1950 - Sections 13, 13(4), 19A and 19A(2)
AppellantMartIn and Harris Pvt. Ltd.
RespondentPrem Chand
Appellant Advocate C.K. Garg and; S.R. Bhandari, Advs.
Respondent Advocate N.M. Kasliwal and; N.K. Jain, Advs.
Cases ReferredRelumal v. State of Bombay.
Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - section 19a--landlord refusing tender of rent--tenant depositing rent in court --whether tenant should obtain refusal every time subsequently before depositing rent in court.;section 19a of the act requires that every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by fifteenth day of the month next following the month for which it is payable and where the landlord does not accept the rent tendered to him within the time aforesaid the tenant may deposit such rent with the court. it is not necessary that on each subsequent occasion he should first tender the rent to the landlord and obtain his refusal and thereafter deposit the rent in court.;(b) rajasthan premises (control of rent.....beri, c.j.1. m/s. martin & harris private limited is the tenant-defendant whose defence was struck off by the order of the learned munsif, jaipur city (west), by his order dated december 30, 1972, under section 13 (61 of the rajasthan premises (control of rent & eviction) act, 1950 (hereinafter called 'the act'). feeling aggrieved by that order the tenant moved a revision-application before this court. kan singh. j., who heard the matter, on examination of the decided cases came to the conclusion that there was a conflict in the reported decisions of this court and he has therefore, referred two questions for the opinion of a larger bench.2. in order to appreciate the background, in which these two questions arise, it will be relevant to recall the broad facts of the case. the tenant took.....
Judgment:

Beri, C.J.

1. M/s. Martin & Harris Private Limited is the tenant-defendant whose defence was struck off by the order of the learned Munsif, Jaipur City (West), by his order dated December 30, 1972, under Section 13 (61 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter called 'the Act'). Feeling aggrieved by that order the tenant moved a revision-application before this Court. Kan Singh. J., who heard the matter, on examination of the decided cases came to the conclusion that there was a conflict in the reported decisions of this Court and he has therefore, referred two Questions for the opinion of a larger Bench.

2. In order to appreciate the background, in which these two questions arise, it will be relevant to recall the broad facts of the case. The tenant took on lease a portion of the premises called 'Khinduka Bhavan' situate in New Colony, Jaipur, for three years, by means of a registered lease-deed dated August 1, 1963, on a monthly rent of Rs. 200/-. Another portion of the same premises was taken on lease by the same tenant on June 1. 1966 at the rate of Rs. 180/-per month. The landlord's case, as disclosed in the plaint, is that the rent amounting to Rs. 1,200/- for the period beginning on November 1. 1970 and ending on April 30, 1971 of the portion taken on lease in the year 1963 had fallen in arrears and, therefore, he was entitled to evict the tenant. The landlord had impleaded the tenant-company at Calcutta and also its office at Jaipur as two distinct defendants. On August 31, 1971, the first date of hearing, a copy of the plaint was given to the defendant-company with the Calcutta address. On September 15, 1971, the tenant filed the written statement denying that any rent had fallen in arrears and contended that because the landlord had refused to accept rent since August. 1969 the tenant was depositing rent under Section 19-A of the Act for both the portions of the premises in the Court and the landlord was not entitled to a decree for eviction, The landlord, however, moved an application under Section 13 (6) of the Act praying that the tenant's defence against eviction be struck off. The tenant answered the application saying that the landlord wanted to enhance the rent: that he had refused to accept the cheque dated August 23. 1969 representing the rent which was sent to him; that the landlord refused to accept the rent for September 1969 which the tenant had sent by means of a money order in the sum of Rs. 426.85 and therefore, the tenant deposited the rent for August, September and October. 1969 in the Court under Section 19-A of the Act and he thereafter also deposited the rent for the subsequent months in the Court and his defence was, as such, not liable to be struck off under Section 13 (6) of the Act.

3. The learned Munsif accepted the landlord's application on the ground that the tenant could not take advantage of the deposit of rent in the Court under Section 19-A of the Act because the tenant had not tendered each month's rent first to the landlord and had not on his refusal deposited the same in the Court under Section 19-A of the Act and therefore the tenant could not escape the consequences contemplated by Section 13 (8) of the Act. Aggrieved by this order, the tenant came up in revision to this Court. Kan Singh. J., has now referred to a larger Bench the following two Questions :--

'1. Whether under Section 19-A of the Act it is necessary for the tenant every time before making a deposit of rent in Court to tender the same to the landlord and to have his refusal or once the landlord has refused the tender of rent, then for every subsequent deposit in Court the tenant will not be required to first tender the rent to the landlord and have it refused. In other words, which of the two cases, namely 1959 Raj LW 81 or 1970 Raj LW 315 lays down the correct law ?

2. Whether even in a 'case where rent has been deposited in Court under Section 19-A of the Act the tenant is required to make a fresh deposit of the rent in Court under sub-section (4) of Section 13 of the Act on the first date of hearing or to Rajse a dispute about the payability of the rent on the first date of hearing. In other words, whether the case reported in 1971 Weekly Law Notes, Part I. page 118 lays down the law correctly or requires any reconsideration ?'

First Question:

4. In order to answer this question, it will be proper to read Sec. 19-A of the Act which was inserted in the Statute by the Rajasthan Act No. 12 of 1965 with effect from June 9, 1965. It reads,--

'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 claim-ins 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 acknowledgment duo and also send a COPV 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 the rent to be paid to him and such payment of rent shall be a full discharge of the tenant, from all liability to pay rent to the landlord.

Provided that no order for payment of any deposit of rent shall 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 Munsiff having jurisdiction over the area.'

We are called upon to interpret Sub-section (2) of the aforesaid section. Kan Singh, J.'s own inclination on the interpretation of this section is recorded in the following words:--

'Section 19-A in my humble opinion was designed to afford an alternative to a tenant to pay the rent in Court in order to avoid future disputes about his tendering and the landlord refusing to accept the rent and thereby incurring the consequences of a default. This section would not override the provisions of Section 13 of the Act and consequently Clause (3) of Section 13 of the Act will stand intact. Apart from this Sub-section (2) of Section 19-A does not expressly use the words 'every time'. Therefore, if the tenant had already tendered rent to the landlord unmistakably by registered letter or a money order then unless the landlord himself indicates that he would hereafter be accepting rent the tenant would not be required to repeat the tender of the rent by money order or otherwise month by month before he would be entitled to deposit the rent in Court.'

5. The earlier view to which reference has been made in the question is reported in Baburam v. Naravan Dass, 1959 Raj LW 81 wherein Dave. J., as he then was, examined the provisions of Section 13 (4) of the Act, as it stood prior to the amendment, and on the authority of Gauri Shanker Agarwala v. Ganga Prasad, AIR 1949 Pat 192 made the following significant observations:--

'This document shows that an amount of Rs. 10/8/- was remitted by the appellant to the respondent but the money-order was returned to the appellant since it was not accepted by the respondent. Section 13, sub-section (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, lays down that 'For the purpose of Clause (a) of sub-section (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has remitted such amount to the landlord by postal money-order at his ordinary address'. The appellant having produced Ex. A-2, a presumption arises in his favour that he had tendered the amount of Rs. 10/8/- as rent and it was for the respondent to rebut that the said money-order did not reach him. There being no such evidence, it must be deemed that the money was tendered to the respondent. In AIR 1949 Pat 192, it was observed that clause 13 of the Bihar House Rent Control Order (1942) protected a tenant who was in the arrears of rent from ejectment so long as he was willing to pay rent. It was further held that it was not the intention of the law that the tenant should be forced to make useless offer and send money to the landlord by money-order which would without doubt be refused. The provisions of the Rajasthan Premises (Control of Rent and Eviction Act, 1'950, are similar to the provisions of the law referred in the above case. In the view which was taken in the case cited above it would be difficult to hold that the appellant was a defaulter.'

This case in fact was dealing with the interpretation of Section 13, Sub-section (3) of the Act and not Section 19-A of the Act which came to be introduced, as already observed, in the year 1965. In this context, we might also refer to Jagdish Kumar v. Roopchand. 1970 Raj LW 315 wherein Jagat Naravan. J., as he then was, without specifically referring the case of Baburam v. Naravan Dass, 1959 Raj LW 81 made certain observations in the following words:--

'There was a decision of this Court that if the tenant sends rent by money-order to the landlord and the latter refuses to accept it then the tenant need not send the rent again to him either by money-order or tender it to him personally. It was to nullify the effect of that ruling that Section 19-A was introduced in the Act. Clause (I) of it lays down that every tenant shall pay rent within the time fixed by contract or in the absence of such contract by the 15th day of the month next following the month for which it is payable. Clause (2) lays down that 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.

This clause is applicable where the rent is tendered to the landlord personally or by money-order. If the landlord refuses to accept rent when it is tendered to him either personally or by money-order, then it is the duty of the tenant to deposit the rent in Court.'

There are two points which this case clearly brings out for our consideration. The first is the observation that 'it was to nullify the effect of that ruling that Section 19-A was introduced in the Act'. We are unable to subscribe to this view in the context of the Statement of Objects and Reasons of Act 12 of 1965, which we shall notice a little later. The second point that deserves notice is that in this case the tenant had deposited under Section 13 (4) of the Act on the first day of hearing the entire arrears of rent as determined by the Court but the tenant defaulted in paying off rent for the subsequent months and therefore, his defence was struck off. The learned Judge was not called upon to consider the provisions of Section 19-A of the Act and, therefore, it will not be correct to say that there is any conflict between Baburam's case, 1959 Raj LW 81 and this case, as indicated in question No. 1.

6. As a matter of fact, there is, however a judgment of Bhargava, J. reported in Vishwanath Singh v. Gopil, 1970 Raj LW 223 which takes the view that the language of Section 19-A (2) is plain and unambiguous' and it means that 'Whether it be the first deposit or subsequent deposit, the condition precedent of tender and refusal by the landlord has to be satisfied otherwise it will not be regarded as a valid deposit so as to be a full discharge of the tenant from liability to pay rent to the landlord.' Bhargava, J, relied on two decisions of the Calcutta High Court, namely, Kabiraj Srinarayan v. Baiinath Bhartia, AIR 1968 Cal 56 and Manickchand Durgaprasad v. Bulakidas Baheli, AIR 1969 Cal 104 to which we shall presently advert. There is thus a conflict between Baburam's case, 1959 Raj LW 81 and Vishwanathsingh's case, 1970 Raj LW 223 to the extent that it has been held in Vishwanath Singh's case that the tender of rent by the tenant should be repeated month after month.

7. The object for the insertion of Sections 19-A. 19-B, 19-C and 19-D in the Act could be gathered by a reading of the Statement of Objects and Reasons and it will be proper to reproduce it so as to appreciate whether the observations of Jagat Narayan, J. in Jagdish-kumar's case were justified and to ascertain the mischief which these sections were intended to remedy--

'The Rajasthan High Court has held that sub-section (4) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act. 1950, provided a last protection to the tenant in a suit for eviction on the sole ground of non-Payment of rent and in which the tenant agrees not to contest the suit. The consequences have been aptly described in 1963 RLW Journal Part (1)) as : 'To Contest or Not to Contest. The Tenant's Torment'.

The result is that a landlord can, by bringing a composite suit or by pleading three defaults in a period of eighteen months, deprive the tenant of the protection provided in the aforesaid sub-section.

The same High Court has further held that where there is no proceeding pending in a Court for the recovery of possession of premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant does not operate as a waiver of such default.

It has, therefore, been considered necessary to remedy the aforesaid mischief in the existing law and to provide for certain other matters with a view to ameliorating the condition of tenants and to save them from un-necessary harassment.

Hence the Bill.'

(Emphasis is ours)

It is clear that the amendments in the Act were made 'with a view to ameliorating the condition of tenants and to save them from unnecessary harassment.'

8. In interpreting a Statute such as this, in bur opinion, the rules in Heydon's case deserve to be remembered. In Craies on Statute Law. Seventh Edition, at page 96, it has been stated--

'The most firmly established rules for construing an obscure enactment are those laid down by the Barons of the Exchequer in Heydon's case which have been continually cited with approval and acted upon, and are as follows: 'That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) What was the common law before the making of the Act ?

(2) What was the mischief and defect for which the common law did not provide ?

(3) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.

(4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according, to the true intent of the makers of the Act pro bono publico. These rules are still in full force and effect, with the addition that regard must now be had not only to the common law, but also to prior legislation and to the judicial interpretation thereof.'

The state of law prior to the Amendment Act of 1965 was such that it had no machinery to provide for the deposit of rent by an anxious tenant in Court when a landlord declined to accept rent, presumably to fabricate a case of default to attain his coveted end namely, a tenant's eviction. The legislature by amendment provided a machinery in Section 19-A. The first sub-section of Section 19-A specifies the time when the rent is payable. It provides that the contract shall be respected in regard to the time fixed thereby for the payment of rent but in the absence of a contract, rent is payable by a tenant by the fifteenth day of the month next following the month for which it is payable. Sub-section (2) envisages the situation where the landlord does not accept any rent tendered by the tenant within the time referred to in Sub-section (1). Then 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. We are leaving out the other situation where a tenant is in a bona fide doubt as to the person or persons to whom the rent is payable, where also this step is permissible, because we are not concerned with a case of such a nature. Sub-section (3) lays down the procedure for making the payment and the contents of the application which is to accompany such a deposit in Court. Sub-section (4) provides for the court-fee on such an application and also that the application shall accompany the requisite postal stamps for sending a notice and a copy of the application under sub-section (5) to the landlord. Sub-section (5) provides that on such deposit of the rent, the Court shall send a notice of the deposit by registered post acknowledgment due and also send a copy or copies of the application to the landlord with an endorsement of the date of deposit; and a copy of such notice shall be 'affixed on the notice board of the Court. Sub-section (6) provides that 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 the rent to be paid to him and such payment shall be a full discharge from all liability of' the tenant for the payment of rent. Then the explanation indicates the Courts where such rent would be deposited. These provisions, as we read them, provide a machinery to immunise a tenant from being labelled as a defaulter if despite the tenant's tender the landlord refuses to accept rent. The deposit of rent is notified to the landlord personally but is also published by its being fixed on the notice board. The landlord may if he chooses, withdraw such rent. The payment to the Court by fiction of the law would mean payment to the landlord so far as the tenant's liability for rent is concerned.

9. The short but interesting question is whether the tenant should first tender the rent each month to the landlord and, on his refusal to accept it, he should proceed to the Court to deposit the rent as is the view taken by Bhargava. J. in Vishwanath Singh's case 1970 Raj LW 223 or whether we should prefer the view to which an inclination has been given by Kan Singh. J. in his order of reference We are clearly of the opinion that a law which was introduced to ameliorate the lot of the tenants and to save them from harassment should not be interpreted to add to the tenant's troubles and tribulation by insisting that, month after month, he should tender rent to the landlord, obtain his refusal, and then make an application for the deposit of rent in Court and get it notified to the landlord. This would be a futile multiplication of steps which could not have been the intention of the law. The only conceivable virtue in such a procedure would be to ascertain the mood of the landlord at regular intervals, in the distant hope that he may become co-operative. The language employed in Section 19-A (2) is, 'any rent tendered by the tenant'. If the legislature had intended that the tenant should tender each month's rent to the landlord and after obtaining his refusal deposit the refused rent in Court, there was no difficulty in saying so. The purpose set out in the Statement of Objects and Reasons was of ameliorating the tenant's lot and it is difficult to hold that the legislature intended this repetitive ritual to torment the tenant. We are prepared to hold that it is necessary on the first occasion to tender rent to the landlord and it is on his refusal that the, tenant becomes entitled to deposit the rent in Court. For, if that was not so, a troublesome tenant, instead of directly paying rent to the landlord might adopt the option of routing his rent through the Court and thereby put the landlord to the trouble and expense of withdrawing the rent from the Court. Such an intention of the legislature is inferable from the requirement of Section 19-A (3) (d) which calls upon the tenant depositing the rent to state the reasons and circumstances which make him to adopt that course. According to the interpretation given by Bhargava. J. the tenant is called upon to perform the monthly ritual of offer-rejection before depositing the rent in Court. Such an interpretation would frustrate the object of ameliorating the lot of tenant. Technically speaking, when the tenant once offers the rent and the landlord refuses to accept it, that is the first tender. Thereafter rent is deposited by thetenant in Court. Under Sub-section (5) a notice is sent to the landlord to receive the rent so deposited by the tenant. That is again an offer to the landlord, by the tenant, through the Court, to receive the rent. Thus each deposit in Court and a notice thereof to the landlord would imply a tender enabling the landlord to ask the tenant to Pav the rent directly. The landlord is thus given repeated options to ask for the rent directly, if he so wishes.

10. The doctrine of tender came to be examined as early as 1845 in Hunter v. Daniel, (1845) 67 ER 712. This doctrine was reiterated by Montague Smith in Forbes v. Baboo Luchmeeput Singh, (1870) 14 Moo Ind App 330 (PC) and later on in Venkayarayanim v. Subadrayamma, AIR 1923 PC 26 and it is to the following effect:

'The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence, it appears the tender would have been a mere form and that the Party to whom it was made Would have refused to accept the money.'

Dave. J. as he then was, followed it and propounded his view in Baburam's case, 1959 Raj LW 81. An equitable construction of the doctrine of tender does not justify repeated tender on the part of a tenant when his first tender has been refused, and he can reasonably proceed on the assumption that the second and the subsequent tenders will meet with no different fate unless advised to the contrary.

11. Let us now examine the two Calcutta cases on which Bhargava, J. relied in Vishwanath Singh's case, 1970 Raj LW 223. In the first place, Sec. 21 of the West Bengal Premises Tenancy Act (12 of 19561 contained a proviso to the effect that in the case of deposits of rent for successive months during any continuous period no affidavit in support of the application shall be required after the first deposit If the reasons and circumstances which led to the first deposit remained the same. It was on the basis of this proviso that the learned Judges proceeded to say in AIR 1968 Cal 56 that the law insists on first a tender being made before any deposit could be made. The exact words used by the learned Judges are:--

'This specific mention dispensing with the filing of an affidavit in the case of subsequent deposits shows that all other requirements and formalities involved in making a deposit should be the same in the case of such subsequent deposits as in the case of a first deposit.'

In the Rajasthan law. Section 19-A of the Act has no such proviso. The other reason is that the tenant In the Calcutta case deposited less than the standard rent which had already been fixed with regard to the premises and, therefore, the learned Judges held that the defendant had defaulted in the payment of rent for four months in the course of a year and was liable to be evicted. So, both on the language of the Statute as well as on facts, the Calcutta case is clearly distinguishable from the case before us and we decline to adopt the reasoning of the Calcutta case. AIR 1969 Cal 104 merely followed the case of AIR 1968 Cal 56 and the Bench consisted of the same learned Judges. The implications of the futility of repeated tenders and the principles underlying it was not urged and considered in the Calcutta cases.

12. We might notice another case of this Court Chirmoli v. Jasanlal, 1973 WLN 857. In this case Kan Singh, J. by his judgment dated August 1, 1973. subsequent to the reference before us, seems to have taken a contrary view when he observed in para. 7 as under:--

'the application Ex. A/9 did not state that earlier to the application the rent had been tendered to the landlord.' and, therefore, presumably following the Calcutta cases to which he has made a reference, he has come to the conclusion that Ex. A/9 -- the application-- was not in conformity with Section 19-A of the Act and the tenant had defaulted. With respect, for the reasons given above, we cannot hold this to be the correct view. Our answer to the first question is therefore as follows:-- 'Section 19-A of the Act requires that every tenant snail pay rent within the time fixed by contract or in the absence of such contract, by fifteenth day of the month next following the month for which it is payable and where the landlord does not accept the rent tendered to him within the time aforesaid the tenant may deposit such rent with the Court. It is not necessary that on each Subsequent occasion he should first tender the rent to the landlord and obtain his refusal and thereafter deposit the rent in Court'

That being so, the view taken by Bhargava, J. in Vishwanath Singh's case, 1970 Raj LW 223 and by Kan Singh J. in 1973 WLN 857 is not correct.

Second Question:

13. The second question relates to the decision of this Court in Saligram v. Narottam Lal, 1971 WLN 118 = (AIR 1972 Raj 127). Jagat Narayan, C J.speaking for the Bench laid down the following propositions in the case--

(1) That even in a case wherein the plaint contains a false allegation that the tenant has committed default as envisaged in Clause (a) of Sub-section (1) of Section 13, the tenant may, if he has actually paid the full amount of rent to the landlord, Rajse a dispute about it on the first day of hearing and the Court shall determine it under Sub-section (5) of Section 13 whether the allegation made by the tenant is true or not.

(2) If the tenant had merely tendered rent to the landlord who had declined to accept it and the case of the tenant is that he is not a defaulter on that account the tenant is not absolved from the liability to pay the rent which was merely tendered and not accepted illegally by the landlord.

(3) If the tenant had made a deposit under Section 19-A the tenant could point out in his application made on the first day of hearing and the Court could direct the payment of rent already deposited under Section 19-A to the landlord. The tenant will not be required to Pay again the amount of rent which he has already deposited under Section 19-A.'

14. Mr. Kasliwal learned counsel for the landlord, does not dispute the correctness of the aforesaid decision. Mr. C. K. Garg, learned counsel for the tenant, has however agued that it was not incumbent for the tenant to Rajse the dispute about the rent deposited by him under Section 19-A on the first day of hearing and that he can do so even by his written statement later.

15. By a long series of decisions which this Court has noticed in para. 9 of the case Rampal v. Manager Sasta Sahitya Press Ltd.. AIR 1974 Raj 43 it has been held that 'the first day of hearing' appearing in sub-section (4) of Section 13 is the date for which the summons is issued to the defendant for settlement of issues.' We have no reason to depart from this long accepted interpretation. The Question which arises an account of the submission made by Mr. Garg is that if a tenant has deposited rent under Section 19-A of the Act, should he Rajse the dispute of his not being a defaulter on the first day of hearing or could he Rajse it subsequently in the written statement The basis of Mr. Garg's contention is that Sub-sections (4) and (5) of Section 13 of the Act are independent provisions and while Section 13 (41 speaks of the first day of hearing, there is no such mention in Section 13 (5), and as the non-raising of the dispute would result in a serious handicap to the tenant in the nature of a penalty because his defence would be struck off the provisions of Section 13 (5) should be construed liberally. He has relied on the decisions in Seksaria Cotton Mills Ltd. v. State of Bombay, AIR 1953 SC 278 = (1953 Cri LJ 1116) and Tola-ram Relumal v. State of Bombay. AIR 1954 SC 496 = (1954 Cri LJ 1333). The learned counsel has urged that there was no magic attached to the expression first day of hearing.

16. Let us read sub-sections (4) and (5) of Section 13 of the Act:--

'13 (4) In a suit for eviction on the ground set forth in Clause (a) of sub-section (1), with or without any of the other grounds referred to in that sub-section, 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 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).' A close reading of these provisions indicates that, put together, they cover a situation in a case of eviction claimed on the ground of default in Payment or tender of rent. In such a suit the tenant, on the first day of hearing, may 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, upto the end of the month previous to that in which the default or the payment is made, together with interest on such amount calculated at the rate of 6 per cent per annum, from the date when any such amount was payable upto the date of the deposit. The tenant 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.' and provides that the Court shall determine it in accordance with the provisions of Sub-section (4). When should such a dispute be Rajsed Obviously, Sub-sections (4) and (5) constitute an integrated provision to adjust the conflicting contentions between the landlord who savs rent has not been paid or tendered and the tenant who has an answer to make. If the tenant is ready and willing to pay the rent, the landlord is not entitled to eviction subject to the provisions of the Act. If the tenant is in default, but he deposits the rent on the first day of hearing or within such time as may be extended, envisaged by Section 13 (4) of the Act, then too the tenant shall not be liable to eviction, and, if there is any dispute in regard to the rent payable by the tenant, that dispute must be Rajsed on the first day of hearing because if it is Rajsed at the end of the trial then Sub-section (4) would not be workable as it insists on a deposit of the rent for each succeeding month, by the fifteenth of the month. There is also an underlying purpose in insisting that the dispute should be Rajsed on the first day of hearing. The tenant is given a locus penitential, as it were, for making amends for the default made by him in paying the rent. Such a latitude, if enlarged, would work hardship on the landlord and would be encouraging dilatoriness on the part of the tenant. Sub-section (51 is closely correlated to the situation envisaged by Section 13 (41.

17. Our answer, therefore, to the second question is as under:--

In case a tenant has deposited rent under Section 19-A of the Act, he would not be required to make a fresh deposit of the same amount in Court under Subsection (4) of Section 13 of the Act. But such a tenant must Rajse a dispute in respect thereof, on the first dav of hearing of the suit, under Sub-section (5) of Section 13 of the Act and, in that event, the Court would allow the tenant an adjustment of the amount so deposited by him while calculating the amount payable to the landlord under the aforesaid provision and would direct the landlord to receive payment of the amount already in deposit under Section 19-A of the Act and also direct the tenant to make payment of the remaining amount, if any, to the landlord In this view of the matter, Saligram's case has been correctly decided.

18. The two questions referred to us are answered accordingly. Let the case go to the learned Single Judge for disposal according to law.


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