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Achal Chand and ors. Vs. Hukam Kanwar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Nos. 397 and 398 of 1971
Judge
Reported inAIR1972Raj308; 1972()WLN291
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13(4), 13(5) and 13(6)
AppellantAchal Chand and ors.
RespondentHukam Kanwar and ors.
Appellant Advocate R.L. Maheshwari, Adv.
Respondent Advocate P.C. Mathur and; V.L. Mathur, Advs.
DispositionRevisions dismissed
Cases ReferredIn Bishan Paul v. Mothu Ram.
Excerpt:
.....written statement, all that can be said is that when ever he files the written statement, his defence plea, if raised by him, against eviction, shall be, in view of the order already passed against him, ignored and not be considered at all. - - 10. then it was urged that when the plaintiffs brought it to the notice of the trial court that the defendants had not deposited the full amount due, it was for the trial court to determine that amount under section 13 (5) of 'the act'.there is no force in this contention as well. in other words the tenant knew well the amount of rent due from them. there is no substance in this argument as well. 13. for all what has been stated above, both the revisions fail and the same are dismissed with costs......premises (control of rent and eviction) act, 1950 (hereinafter referred to as 'the act'). in the suit filed against achal chand only it was stated in the application that the defendant was ready and willing to pay the rent from 23-11-1966 to the end of february. 1969, which amounted to rs. 2591/- and interest on that amount, which according to the defendant was rs. 155/-, in all rs. 2746/-. similarly in the other suit the defendants showed their willingness to pay the arrears of rent as rs. 1711/-, interest rs. 96/-. in all rs. 1807/-. it was further contended in the applications that rent was sent by money order, but it was not accepted by the plaintiffs and as such it was prayed that the amount of rent and interest payable to the plaintiffs may be determined and two months' time may.....
Judgment:
ORDER

R.D. Gattani, J.

1. The respondents have sot a property in Katla Bazar. Jodhpur. That was rented out in different portions by means of three rent-notes. Shri Achal Chand since deceased and now represented by petitioners No. 1/1 to 1/7 in both the writ petitions, was tenant in respect of two rent-notes, whereas the third rent-note was in the name of Firm P. M. Bhandari through Manager Kesarimal. Shri Punwanchand Bhandari son of Achal Chand is the present tenant in respect of that property. One of the rent-notes executed by Achal Chand is dated 3-5-1956. It relates to one shop and the rent fixed in it is Rs. 65/- per month. He executed it for carrying on his business in the name of Achal Ayurved Sewashram in it. The other rent-note executed by Achal Chand is dated 5-5-1956. It is in respect of some rooms on the first and second floors of the property. The rent fixed in it is Rs. 30/- per month. The third rent-note is dated 8-5-1956. It is in respect of one shop and the rent fixed is Rs. 65/- per month. The plaintiffsfiled one suit for ejectment against both the tenants i. e. in respect of whole of the property on the ground of personal necessity. The suit was decreed by the trial Court on 31-7-1969 and the first appeal filed by the defendants was dismissed on 18-5-1970. They preferred second appeal to this Court, which was decided on 18-3-1971. In this Court the decree in respect of the rent-note dated 3-5-1956 (Ex. 3) i. e. executed by Achal Chand regarding one shop was affirmed, but it was set aside in respect of the other two rent-notes.

2. During the pendency of that suit in the trial Court i. e. before it was decided by the trial Court, the plaintiffs on 21-12-1968 filed two suits for arrears of rent and ejectment -- the first was against Achal Chand in respect of two rent-notes executed by him on 3-5-1956 and the other on 5-5-1956. The amount of arrears of rent/mesne profits claimed in the suit was Rs. 2363/-. The second suit was filed against Punwan Chand Bhandari and Achal Chand in respect of the rent-note executed on 8-5-1956 regarding one shop. The amount of arrears of rent/mesne profits claimed in the suit was Rs. 1620/-. It might be stated here that in both the suits arrears of rent/ mesne profits were claimed from 23-11-1966 to the date of the filing of the suit.

On the first date of hearing, which was 10-2-1969, the defendants filed in both the suits applications purporting to be under Section 13 Sub-section (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). In the suit filed against Achal Chand only it was stated in the application that the defendant was ready and willing to pay the rent from 23-11-1966 to the end of February. 1969, which amounted to Rs. 2591/- and interest on that amount, which according to the defendant was Rs. 155/-, in all Rs. 2746/-. Similarly in the other suit the defendants showed their willingness to pay the arrears of rent as Rs. 1711/-, interest Rs. 96/-. in all Rs. 1807/-. It was further contended in the applications that rent was sent by Money Order, but it was not accepted by the plaintiffs and as such it was prayed that the amount of rent and interest payable to the plaintiffs may be determined and two months' time may be given for the deposit of the amount. The plaintiffs did not file any reply of these applications, but were prepared for arguing the same. On 6-3-1969 the defendants were asked to deposit the amount of the arrears of rent and interest by 7-4-1969 according to law. No specific amount was, however, mentioned by the trial Court.

3. On 12-4-1969 applications in both the suits were filed by the plaintiffs under Section 13 (6) of 'the Act' allegingthat rent from 3-4-1966 was due from the defendants and that was not deposited and the amount of rent and interest deposited by the defendants as due from 23-11-1966 was also not full. It was, therefore, prayed that the defence against eviction be struck out.

4. It may be stated here that in the first suit the defendant deposited a sum of Rs. 2841/-, whereas according to the plaintiffs that amount came to be Rs. 2903.78 up-till 7-4-1969. Thus an amount of Rs. 62.78 was deposited less and the order of the trial Court dated 30-10-1969 disposing of the application of the plaintiffs shows that the learned counsel for the defendant during the course of the arguments admitted that the amount was really deposited less to the extent of Rs. 62.78. Similarly in the other suit during the course of the arguments in the trial Court in connection with this application of the plaintiffs dated 12-4-1969 the learned counsel for the defendants admitted that a sum of Rupees 114.86 was deposited less. The defendants had deposited an amount of Rupees 1872/- on 3-4-1969, whereas the amount by that came to be Rs. 1986.86. In the reply filed on both the suits, the stand taken by the defendants was that even though rent from 3-4-1966 to 23-11-1966 was due from the defendants, it could not be taken into consideration because that was a subject-matter of another suit pending in the Court of the Civil Judge, Jodhpur. Regarding the amount deposited for the period after 23-11-1966 it was contended that the defendants had filed application under Section 13 (4) of, 'the Act' to which the plaintiffs did not give any reply; that the defendants had shown in that application what was the amount payable and after the orders of the Court deposited also that amount and as such the plaintiffs were not entitled to raise the objection, if the amount deposited was less, as the defendants deposited the amount with the consent of the plaintiffs and the order of the Court.

5. The trial Court by separate orders in both the suits on 30-10-1969, found favour with the plaintiffs and ordered the defence against eviction to be struck out under Section 13 (6) of 'the Act'. The defendants preferred appeals in both the suits against the order under Section 13 (6) of 'the Act'. The appeals were disposed of by the Addl. District Judge No. 1. Jodhpur on 15-7-1971. Both the appeals were dismissed. Hence these two revisions.

6. Since common questions of fact and law are involved in both the revisions, they shall be disposed of by one order.

7. It is an admitted position that the amount of rent and interest deposited by the defendants in both the suits was not the full amount payable by them. In one case deposit of Rs. 114.86, whereas in the other an amount of Rupees 62.78 less than payable was made. It is therefore, to be seen whether the defendants in the circumstances of the case incurred the liability provided in Section 13(6) of 'the Act' or not. In order to appreciate the points raised in these revisions Sub-sections (4), (5) and (6) of Section 13 of 'the Act' are reproduced below:--

'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 up to 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 Sub-section (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'.

8. The first point urged in this connection was that when the defendants filed application in both the suits under Section 13 (4) of 'the Act' showing what specific amounts as arrears of rent and interest they were prepared to deposit, the plaintiffs did not raise any objection. nor did the Court give any other sum which was to be deposited. As such the plaintiffs were estopped from raising theplea later on that full amount was not deposited. A perusal of Section 13 (4) of 'the Act' would reveal that no such application as filed by the defendants inrespect of disclosing the amounts they wished to deposit is contemplated. Of course under that sub-section a tenant may apply for some time for depositing the amount of rent and interest payable and the Court may subject to the provisions of that sub-section in suitable cases may allow him time. But it is the sole responsibility of the tenant to calculate and find out the amount which is payable. It is no job of the Court to give its assent to the amount proposed by the defendant. Likewise it is not the duty of the landlord to say yes or no to the amount so proposed. The law does not cast any such duty upon the landlord. Moreover, the defendant-tenant is to pay or deposit the interest on arrears of rent up to the actual date of payment or deposit and since it is in his mind when he wishes to deposit or pay the amount, how can the landlord say whether the amount proposed by the tenant is full or not.

9. It was next urged that in the application filed by the landlords under Section 13 (6) of 'the Act' it was not shown by how much the amount deposited by the defendants fell short. Since it is an admitted position that the tenants in both fine cases did not deposit the full amount payable, this point looses its importance. Moreover, all that is expected from the landlords is to prove that the amount deposited or paid by the tenant is not the full amount. It is not fatal for their case if they do not disclose the exact amount falling short in their applications.

10. Then it was urged that when the plaintiffs brought it to the notice of the trial Court that the defendants had not deposited the full amount due, it was for the trial Court to determine that amount under Section 13 (5) of 'the Act'. There is no force in this contention as well. It is to be noted that whereas Section 13 (4) of 'the Act' speaks of the arrears of rent and the interest due upon those arrears; Section 13 (5) of 'the Act' is confined to the dispute, if any as to the amount of rent payable by the tenant. Can it be said in the present cases that there was any such dispute between the parties? The amount of the monthly rent was fixed and admitted as stated above. There was no dispute as to the amount of rent last Paid by the tenants and the period for which it was paid. In other words the tenant knew well the amount of rent due from them. As such there was no dispute as to the amount of the rent payable by the tenants. If the tenants while calculating the amount of arrears of rent and interest thereon committed mistake and for that reason full amount was not deposited in either case, then this is a case pure and simple of not depositing thetotal amount payable and by no stretch of imagination it can be said that such a case falls under the provisions of Section 13 (5) of 'the Act'.

11. Then it was urged that on theday the trial Court made the impugned orders in both the suits, written statements had not been filed and as such the question of striking out the defence against eviction did not arise. There is no substance in this argument as well. If a tenant incurs the liability envisaged in Section 13 (6) of 'the Act' he will not be held immune from that liability simply because he had not filed his written statement by that time. If the defendants' view is to prevail that would not only lead to confusion, but would grant indulgence to the defaulting tenant which certainly is against the spirit of legislation. If when an order against the tenant is passed under Section 13 (6) of 'the Act', the tenant in fact has not filed the written statement all that can be said is that when even he files the written statement, his defence plea, if raised by him, against eviction, shall be, in view of the order already passed against him, ignored and not be considered at all.

12. Lastly, relying upon Bundu v. Smt. Hashmat, 1972 WLN 19 - (AIR 1972 Raj 238) it was urged by the learned counsel for the petitioners that 'the Act' has been passed to give protection to the tenants and as such a mistake in calculation of the amount should not be to the extent of penalty provided under Section 13 (6) of 'the Act'. 'The Act' has no doubt been made for giving reliefs to the tenants; at the same time a tenant is to Set benefit of 'the Act' to the extent of its provisions. Beyond that it is not possible for a Court also to help a defaulting tenant. In the present cases it is an admitted position that Rs. 114.86 and Rs. 62.78 were deposited less than the amounts which were due. In Bishan Paul v. Mothu Ram. AIR 1965 SC 1994 the amount of rent deposited fell short by Rs. 4/12/- only and still the Supreme Court could not give any relief to the tenant and he had to vacate the premises. It might be stated here that, before filing the present suits the plaintiffs gave two notices in each case, on 23-5-1968 and 25-11-1968 and demanded the arrears of rent, but the tenants gave replies that because the previous suit was pending, the notices were invalid and did not pay the arrears of rent.

13. For all what has been stated above, both the revisions fail and the same are dismissed with costs.


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