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Siya Sadan Vs. Sagar Mal and ors. - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil S.A. No. 537/1973
Reported in1982WLN118
AppellantSiya Sadan
RespondentSagar Mal and ors.
Cases ReferredJagdish Prasad v. Firozabai
.....legislators and crusadors of 'social justice',by enacting 'merchant of venice and portia' to make tenants defenceless and deprive them from the valuable right of defence against the ejectment, by hypertechnical interpretation of sub-sections (2), (3), (4) & (5) of section 13 of the rajasthan premises (control of rent & eciction) act, 1950. 2. the pivot of debate in the instant case, 17. in this composite suit on the basis of the finding of the first appellate court it can be assumed that default was committed, by the tenant and that the tenant further did not comply with the requirement of sub-clause (4) in as much as he failed to deposit the rent by fifteenth of the next month, the logical and legal consequence was that under sub-section (6) his defence was struck off, this striking of..........for six months. sub-clause (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (1) provide different grounds for eviction. the present one is a composite suit in which there were various grounds in addition to the ground of default.17. in this composite suit on the basis of the finding of the first appellate court it can be assumed that default was committed, by the tenant and that the tenant further did not comply with the requirement of sub-clause (4) in as much as he failed to deposit the rent by fifteenth of the next month, the logical and legal consequence was that under sub-section (6) his defence was struck off, this striking of the defence was not limited to the ground of default only; but it was depriving tenant from an opportunity to lead defence evidence in respect of other.....

G.M. Lodha, J.

1. 'Shocking scarcity of a chhappar, roof to rest', results in stretching of the bones on pavements of Chopati, Kalba Devi, Bada Bajar, Dharam Tala, Chandni Chowk, Panch Batti and Sojati Gate, the prestigious shopping centres, exposing the hyprocratic flooded lights over dark dry skeletons of poor, down trodden, pavement dwellers of India, have compelled the patrogonists of 'social justice' to adopt beneficial interpretation for protecting tenants from evictions under the Rent Control laws of the land But the ingenuity of the resourceful segment of landlord lawyers want to overstep intention of the legislators and crusadors of 'social justice', by enacting 'Merchant of Venice and Portia' to make tenants defenceless and deprive them from the valuable right of defence against the ejectment, by hypertechnical interpretation of Sub-sections (2), (3), (4) & (5) of Section 13 of the Rajasthan Premises (Control of Rent & Eciction) Act, 1950.

2. The pivot of debate in the instant case, therefore is between the interpretation of rent laws in consonance with 'social justice' against the hair splitting interpretation based on blind law by accepting 'Pound of flesh and not a drop of blood', Shakespeare's Portia's obsolete and outdated classics.

3. I am far from having attraction of being rhetoric, when I recapitulate what Mahabharat's Abhimanyu said, when he was locked, unarmed in Chaker-Vyuh. National Poet Maithli Sharan Gupt in his famous verse 'Jaydrath Vadh' depicts what Arjun's son exclaimed to armed Kauravs:

^^ nks 'kL= igys rqe eq>s ]

fQj ;q) rqe eq>ls djks]

nks LokFkZ lk/ku ds fy,]

er iki iFk es ix /kjks AA^^

Give me the arms first and then fight with me. For your selfish motives, don't commit the sin of killing me unarmed.

4. Dharam Shastras emphasised Dharam Yudh. Are we to revert back to stone age in space age by interpreting rule of law to mean denial of defence on hypertechnicalities, and hair splitting unreal and anti-social legal gimmics and gymnastics

5. The tenant has been left 'high and dry' by accepting 'blind justice' interpretation by the lower courts, leading to his eviction, by depriving him of his basic right of defence. Should this Court ' Ditto it or Veto it', is the billion dollar question in this controversy where two unequals are pitched against each other.

6. The acid test for interpreting Sub-section (2), (3), (4) & (5) of Section 13 after introduction of Section 13-A would be 'Voices of Graves' v. ' Writing on wall', 'Station' v. 'Pragmatism and Dynamism', and ' Portia's pond of flesh Drama' v. 'Felt necessities of times', 'Social Justice v. Blind Justice', the latter many a times partakes the character of denial of justice and not only makes the phrase, 'justice' misnomer, but makes a mockery of it.

7. The battle lines of interpretation of law have now become patent on the legal horizon where one terms it as legislation in the name of interpretation or expanding new dimension of 'social justice'. It is visible that two divergent Schools of Interpretation can safely be termed as Krishna Iyer J., Gajendragadkar J., Holmes J., v. Hidayatullah, J., Lord Denning school. The Iyer J., school tries to be radical, dynamic and pragmatic as crusaders of 'social justice'. Hidayatullah J., School emphasises static and precedents oriented strict legal approach by preferring to remain blind to the social needs and sccic-economic evolution or revolution warrants of the country.

8. And now the traditional facts. The plaintiffs filed a suit for ejectment with regard to a shop, against the defendant on the ground of non-payment of rent, material alteration, subletting and nuisance. The defendant contested the suit on all counts. Regarding non-payment of rent, the defendant admitted that six months refit was due against him but his plea was that he offered the rent to the plaintiffs but they refused to accept it. The appellant, therefore, sent the rent by money order but that too was refused. The defendant was therefore, not a defaulter. On 8-11-67, 'the court ordered the appellant to deposit arrears of rent and also future rent by the fifteenth every month. 7he appellant deposited the arrears and also continued depositing the rent monthly. The trial court framed issues on 19-12-67 but no issue regarding default was framed. The plaintiffs filed an application on 25-9-68 under Section 13(6) stating therein that the defendant has not deposited rent within time for the months of June, July and August, 1968 and so his defence should be struck off. The defendant submitted that since 4-8-1968 he had been suffering from Peptic Ulcer and was an indoor patient in the Hospital. He has deposited the rent and the delay be condoned. The trial court cordoned the delay and dismissed the application of the plaintiffs. On appeal, the learned District Judge held that the lent for the month of August has been deposited late by ore day, so he struck off the defence of the appellant. Thereafter, the defendant moved an application for framing an issue regarding the plea of default and the trial court framed the same. The plaintiffs filed revision petition in this Hon'ble Court and the issue regarding default was deleted. The trial court then recorded the evidence of the plaintiffs and decreed the suit, on all counts. The defendant went in appeal, and the learned appellate court reversed the finding of the trial court on the issue of sub-letting, but confirmed the finding on other issues and dismissed the appeal.

9. In this second appeal Mr. Tikku, learned Counsel for the appellant submitted that the defence of the defendant was wrongly struck off. It was pointed out that the respondent was indoor patient in the hospital on 17-9-68. The monthly rent was to be deposited by 15-9-68. The cash-challan was presented on 13-9-68, but was signed by the Munsarim on 14-9-68 15-9-69 14-9-68 15-9-69 was Sunday, so the challan was given to the defendant on 16 9-68. As the respondent was indoor patient in the hospital, the rent was deposited on 17-9-68.

10. Mr. Tikku also submitted that in any case, since his application under Section 13-A of the Rajasthan Premises (Control of Rent & Eviction) Act, has been accepted and the amount of arrears of rent, cost, interest have been deposited now, the order striking off the defence has become nugatory and cannot be given effect to. According to Ms. Tikku the effect of compliance of Section 13-A is that the order striking off defence should also be treated as nullity and ineffective. On this hypothesis Mr. Tikku argues that since he was not allowed to lead defence evidence on various other grounds of nuisance etc. the case should now be remanded to the trial court after setting aside the decree of eviction.

11. Mr. Bhandari has controverted the above submissions of Mr. Tikku. According to Mr. Bhandari, the defence of medical certificate was never pressed before the trial court and the trial court condoned the delay on the ground that there were two holidays and this has been found to be wrong by the first appellate court.

12. Mr. Bhandari then contended that this Court in(1) Jagdish Prasad v. Firozibai 1981 RLW 171, has held that the Amending Act, of 1965 would not affect the liability created on the tenant by the earlier law so far Sub-section (4), (5), (6) of the Act is concerned. It was observed as under: >

A combined reading of the provisions of Sub-section (4), (5) and (6) of Section 13 of the Act, as they existed prior to the amendments of 1975 and 1976, and which have been reproduced above, would show that if a tenant fails to deposit or pay the the rent for any month by the fifteenth of the succeeding month, the court has no option but to strike out the defence and proceed on with the hearing of the suit. In other words, the tenant by committing a default in that behalf incurs a liability of his defence against eviction being struck cut mandatorily under Sub-section (6) reproduced above. In view of the provisions of Section 6, Rajasthan General Clauses Act, 1955, it is obvious that the tenant's defence against eviction in the present case could be struck out under Sub-section (6) of Section 13, as it existed before the amendments enacted therein during the pendency of the suit.

There was no dispute between the parties in the present case as to the rate at which rent was payable by the tenants. They admitted the rate to be Rs. 25/- per mensem and deposited the amount of arrears calculated at that rate on April .5, 1973. They had, by that token alone, incurred a liability under Sub-section (4) of Section 13 .. continue to deposit or pay month by month, by the fifteenth of each succeeding month the rent at the rate of Rs. 25/- per mensem. The repeal of Sub-section (4) of Section 13 and its replacement by a new provision during the pendency of the suit could not, to quote the language of Section 6(c) Rajasthan General Clauses Act, 1955, 'affect any liability incurred under any enactment so repealed' and it could not, as Section 6 (c) further provides, 'affect any. legal proceeding or remedy in respect of any such liability...and any such. legal proceeding or remedy may be.. continued or enforced.. as if the repealing law had not been passed'. These quotes from Section 6 leave no manner of doubt that, in the absence of any thing to the contrary in the Rajasthan Ordinance No. 26 of 1975 or the Amending Act No. 14 of 1976 which repealed and replaced Sub-sections (4), (5) & (6) of the then existing Section 13 by substantially altered provisions, the rights and the liabilities of the parties as they existed at the time of repeal and re-enactment had to be enforced and the suit had to be continued as if the repealing law had not been passed. There is nothing in Ordinance No. 26 of 1975 or Amending Act No. 14 of 1976 which may be legitimately construed as destructive of old rights and liabilities acquired and incurred under 13(4), (5), and (6) of the Act prior to the supersession of these provisions by the Amending and Repealing enactments aforementioned.

13. Mr. Tikku, learned Counsel for the appellant controverted this submission made by Mr. Bhandari. Mr. Tikku pointed out that the amendment introduced by incorporation of Section 13A was expressly meant to provide benefit to the tenant as would be evident from its objects and reasons. It was pointed out that Section 13A provides a complete remedy and protective umbrella to a tenant against ejectment on the ground of default in case he avails of the opportunity of moving an application as contemplated under Sub-clause (b) of Section 13 A and pays the amount in compliance of order. Emphasis was laid on the following words : proceedings shall be disposed of if tenant has not committed any default,' contained in Sub-section (b) of Section 13A.

14. Mr. Tikku also pointed out that Section 13A was not under consideration and adjudication in the decision of (1) Jagdish Prasad v. Firozibai (supra) referred by Mr. Bhandari. The learned Counsel pointed out that the provision contained in Section 13A were aimed at providing benefit and protection to the tenants and since it is a beneficial legislation this Court should not interpret it strictly in such a manner that while on the one hand the Legislature intended to give benefit and provide protection the interpretation done by this Court takes that away by holding that although he would not be evicted on the ground of default, yet, there is no remedy for his eviction on the other ground for which he had no opportunity to lead defence evidence and cross-examination solely because his defence was struck off for non-payment of rent as contemplated by Sub-clause (3) and (4) of Section 13. Mr. Tikku pointed out that Sub-clause (3), (4), (5) and (6) come into play only if there is a bedrock and ground (a) of Section 13, which means that unless there is ground of default sub Clause (3) (4), (5) and (6) of Section 13 cannot be invoked. On these premises it was argued that once that ground disappeared on account of effect of Section DA and the tenant complying with the requirement of the legislation by paying the rent within the time prescribed under Sub-clause (b) thereafter Sub-clauses (3), (4), (5) and (6) of Section 13 will have no application at all.

15. Mr. Bhandari confronted with the above situation that rights and liabilities incurred under Sub-sections (3), (4), (5) and (6) were never intended to be taken away by the introduction of Section 13A by the Amendment Act of 1976. It was argued that it was intended that protection must be provided against default and nothing more. It was also argued (hat if the view as canvassed by Mr. Tikku is taken then it will also become nugatory and tenant would be protected even from ejectment in case of second default.

16. I have carefully considered the submission of the learned Counsel for !he parties and have given my thoughtful consideration to the issue involved. As there is no precedent on this particular point as it has emerged during argument in this case. It is note worthy that Section 13(1)(a) provides for evicting tenant on the ground of non-payment and non-tendering of rent for six months. Sub-clause (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (1) provide different grounds for eviction. The present one is a composite suit in which there were various grounds in addition to the ground of default.

17. In this composite suit on the basis of the finding of the first appellate Court it can be assumed that default was committed, by the tenant and that the tenant further did not comply with the requirement of Sub-clause (4) in as much as he failed to deposit the rent by fifteenth of the next month, the logical and legal consequence was that under Sub-section (6) his defence was struck off, This striking of the defence was not limited to the ground of default only; but it was depriving tenant from an opportunity to lead defence evidence in respect of other grounds viz. sub-letting, nuisance, material alteration etc.

18. In a situation like this it is not in dispute that if the ground of default would not have been there the defendant would not have been deprived of that opportunity to lead defence evidence and there would not have been occasion of striking off the defence. In other words, the situation of striking of defence arises only because there was a ground of default and on account of Sub-clause (4) it became applicable.

19. The crucial question which requires consideration is, whether in a case where there are a number of grounds for eviction in addition to the ground of default if a tenant fails to deposit the rent and interest etc. within the prescribed time, then Sub-clauses (3), (4) and (5) will apply.

20. In order to test the proposition advanced by the learned Counsel for the parties which are divergent it would be proper to take an illustration of a case in which the suit remains pending, The tenant takes the benefit of Section 13A, then the entire amount with interest is deposited, and on account of that the ground of default disappeared, but the evidence continues for other issues regarding sub-letting, nuisance and material alterations After some time, he fails to deposit the rent on 15th of the next month as per the earlier order passed and as per the effect of Sub-section (3). In a situation of this nature whether the court would be competent to strike off the defence now In other words, the question posed above raises a serious question whether after the main ground of default has gone and disappeared the subsidiary and secondary Sub-clauses (3), (4), (5) and (6) would continue to apply.

21. It is to be noted that this Court as well as the Hon'ble Supreme Court has repeatedly held that in interpretation of beneficial legislation like the Rajasthan Premises (Control of Rent & Eviction) Act, or any such Pent Control Laws, the approach of the Court should be liberal so as to protect the tenant from eviction. In (2) Santosh Mehta v. Omprakash : [1980]3SCR325 , their Lordships of the Supreme Court have observed as under:

Striking out defence of a tenant is a harsh extreme and having regard to the begin scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed. Striking out a party's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be failure to pay rent which in the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect the tenant may forfeit his right to be heard in defence. It will be noted that Section 15(7) is not couched in mandatory language. It uses the word 'may'. There is no indication what so ever in the Act to show that the exercise of the power of striking out of the defence under Section 15(7) was imperative when ever the tenant failed to deposit or pay any amount as required by Section 15. The provisions contained in Section 15 (7) of the Act are directory and not mandatory. The effect of striking out of the defence under Section 15(7) is that the tenant is deprived of the protection given by Section 14 and, therefore, the powers under Section 15(7) must be exercised with the circumspection.

In (3) Jagannath v. Jodha Ram 1980 RLW 42, I had an occasion to discuss this aspect of the case. It was observed as under:

15. This Act has been made for providing protection to the tenants against ejectments, merely on whom or caprice of landlord permitting the ejectments on certain grounds only and on the basis of the certain conditions only.

16. This legislation in the urban areas is analogous to the Rajasthan Protection of Tenants Ordinance, wherein protection was provided to cultivators of agriculture field in village. The problem of getting a roof over the head, is problem of serious magnitude. The housing problem and the fast changing notions of social economic philosophy, in this country, gave rise to various rent control legislations Hon'ble Justice Iyer in B. Banerjee v. Smt. Anita Pan (5) has described it as problem of 'shocking scarcity of a roof to rest'. Lakhs of down trodden, poor labourers, workmen, stretch their bones on footpaths, pavements of Chopati & Kalb Devi in Bombay, Bada Bazar and Dharamtalla in Calcutta, Chandhi Chowk & Cannaught Circus of Delhi, Panch-batti Mirza Ismail Road of Jaipur and Sojati Gate of Jodhpur, whether it is chilling cold of December or scorching heat of June, after working for the whole day like chattels and struggling for two square meals.

17. 'Calcutta or Cochin, for the urban people of India, the shocking scarcity of a roof to rest one's tired bones is an unhappy problem of social justice for that enactment of control of rent and eviction laws', observed Hon'ble Justice Iyer of Supreme Court.

18. The Rent Control Legislations are therefore beneficial legislations to protect tenants from being thrown on roads merely on the wagers, whims, fancy and greed of landlords Such being the beneficial nature of legislation aimed for 'social justice' the interpretation and construction of such statute should also be beneficial & liberal' in favour of tenants, of course without doing any violence to statute. It is also on account of this, that I have taken the view that Section 10 of the General Clauses Act would apply for counting the period of payment of rent in compliance of provisions of Section 13(3) and (4) of the Act.

22. Almost similar view was taken by another Hon'ble Judge of this Court in (4) Lal Chand v. Sant Ram 1978 RLW 119, in which it was observed as under:

Raj. Premises (Control of Rent & Eviction) (Amendment) Act, 1976--Section 13(4)--Amendment in the provision of Section 13(4) have been made so as to remove the hardships to the tenant, where he is unable to deposit the rent month by month within the specified time on account of some genuine difficulties of unforessen obstacles in his way or for reasons beyond his control and beneficial construction should be given to the amended provisions of Sub-section (4) in the light of the purpose for which the amendment has been introduced in this section of Act.

23. Even if strict interpretation is taken of Section 13 and its various clauses, I have not got the slightest hesitation in holding that the entire, pyramid of Sub-clauses (3), (4), (5) and (6) of Section 13 which provides for determination of arrears of rent, giving of time for payment of it, requiring the tenant to pay the rent by fifteenth of the next month and consequent default in such compliance is based on and has been built on the bedrock of Sub-clause 13 (1) (a), which reads as under:

(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months.

The amended Section 13A later introduced is as under:

13 A. Special provisions relating to pending and other matters: Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Amending Ordinance or in any other law:

(a) no court shall, in any proceeding on the dale of commencement of the amending Ordinance) pass any decree in favour of landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under Clause (b) and pays to the landlord, or deposits in court; within such time such aggregate of rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause.

24. If in a given case, on account of the application of Section 13 A the effect of Sub-clause 13(1) (a) disappears and which in the eye of law, becomes non-existent for all intents and purposes then the entire pyramid falls flat on the floor It is difficult to imagine a situation where a tenant can be deprived of the opportunity of leading evidence in defence for sub-letting or for other grounds even after the ground of default under Sub-clause (a) disappeared on account of compliance of Sub-clause (b) of Section 13A of the Act. In my considered view, Sub-clauses (3), (4), (5) and (6) of Section 13 of the Act ceased to apply in a composite suit which was based also on the ground of default, but that ground of default disappeared and has become non-existent in the eye of law on account of payment of rent after its adjudication under Section 13 A of the Act. I am of the opinion that Sub-clauses (3), (4), (5), and (6) are subsidiary and sub-servient and corollary to Sub-clause (a) of Section 13(1) and they are dependent and not independent. I am of the considered view that they have no separate existence of their own. Once the ground (a) disappears and becomes non-existent on account of legislative mandate of Section 13A (b), then any order passed under Sub-clauses (3), (4), (5) and (6) will not adversely affect the rights of the tenant.

25. I am in agreement with the submissions made by Mr. Tikku while deciding the of Jagdish Prasad v. Firozibai (1) Neither Section 13A was under debate, nor it was adjudicated upon. It would be too much to read in this judgment that Section 13A has been discussed and decided by implication.

26. In view of the above, I am not required to consider whether the principle laid down in Jagdish Prasad v. Firozabai (1) lays down good law, although Mr. Tikku has termed it 'bad law''.

27. So far as the present case is concerned, I am convinced that both on the principle of beneficial interpretation as well as strict interpretation the only logical and legal interpretation which is possible is that the moment the tenant complied with the order of Section 13A (b) and deposited the rent etc. the ground of default disappeared and along with it all these corollaries and subsidiaries in the form of Sub-clauses (3), (4), (5) and (6) the liabilities arising from them disappeared for all intents and purposes.

28. It is not in dispute in this case that the defence was struck out and the tenant was not allowed to lead the evidence in defence on the ground of material alteration, nuisance and subletting.

29. Before parting with this case, I must state that if the legislature wanted or wants that a tenant who cannot pay rent, has got no right to stay, then it should amend Section 13 (2), (3) & (4) in explicit terms to apply them to all suits for eviction under Section 13 of the Act. In other words, Sub-section (2) should not be kept related to only ground of default under Sub-section (a) but it should be extended to all sub-clauses from (a) to (1) to cover all grounds viz., material alteration, subletting, denial of title, etc., unless that is done, the interpretation which I have taken of Sub-sections (2),(3),(4),(5) of Section 13 is the only possible interpretation.

30. The result of the above discussion is that this appeal succeeds. The judgments and decrees of both the lower courts are set aside and the suit is remanded to the first appellate court with the direction that treating the order of striking out the defence as ineffective, as the tenant has taken advantage of Section 13A of the Act, the trial court should allow the defendant to lead evidence on all the issues. Thereafter the trial court should decide the case according to law.

31. The parties would bear their own costs of this appeal as well as of the first appellate court, as this would be the first case of interpretation of the Sub-section (2) to (6) of Section 13 and there was no precedent.

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