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Mangal Ram and ors. Vs. Smt. Chandravati Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Rev. No. 657 of 1968
Judge
Reported in1969WLN257
AppellantMangal Ram and ors.
RespondentSmt. Chandravati Devi
DispositionApplication dismissed
Cases ReferredPadam Chand and Ors. v. Kunjbeharilal and Anr. S.B. Civil Revision No.
Excerpt:
.....in this sub-section that the court should pass an order directing the defendants to deposit or pay rent month by month.;(b) rajasthan premises (control of rent & eviction) act, 1950 - section 13(1)(a)--rent accepted under orders of court--whether defaults waived.;the appellate court rightly held that there could be no waiver of those defaults by the acceptance of rent by the plaintiff as this rent was accepted on the orders of the court under protest.;(c) rajasthan premises (control of rent & eviction) act, 1950 - section 13(4)--first date of hearing--meaning of.;the first hearing can be either for settlement of issues only or for final disposal of the suit. in small cause court cases the summons is issued for final disposal of the suit and in other suits it is issued for..........that rent upto 8-7-67 had been deposited in court and it was prayed that the plaintiff may be got paid rent which fell due after 8-7-67 in the presence of the court and if he was not willing to accept it then it may be got deposited in court.5. rent for 6 months from 9-7-67 to 1-1-68 was deposited by the defendants on 18-1-68. rent for the following 3 months was paid on 21-3-68 after the plaintiff had moved an application stating that rent for the months 2-1-68 to 3-1-68, 1-2-68 to 29-2-68 had not been paid within 15 days:(1) 2-1-68 to 31-1-68.(2) 1-2-68 to 29-2-68.(3) 1-3-68 to 30-3-68.6. on 22-2-68 issues were framed in the case. on that very day the plaint tiff filed an application praying that the defence of the defendants may be struck out under section 13(6) as they had neither.....
Judgment:

Jagat Narayan, J.

1. This is, a revision application by the defendants against an order of Munsif, Hindaun. striking out their defence under Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction Act 1950, which was confirmed on appeal by the Addl. District Judge, Gangapur city.

2. Smt. Chandravati Devi, plaintiff, is the landlord of a shop situated at Hindaun and Mangal Ram and Kedar Nath defendants, are the tenants of the shop. The monthly rent of the shop is Rs. 10/-. In addition to it the tenants have to pay a shop tax at 50 Paisa per month. The tenancy is monthly in accordance with the Hindi calendar. Rent falls due on Sudi 1 of every Hindi month. The present suit was instituted on 18-9-67 for the recovery of arrears of rent and for eviction on the, ground of default in the payment of rent due for six months under Section 13(1)(a) According to the plaintiff rent was paid by the defendants up to 10th July, 1966. Rent for 12 months from 19-7-66 to 8-7-67 was neither paid nor tendered to the plaintiff. It was admitted in the plaint that a notice was served by the defendants in which it was stated that rent for six months from -19-7-66 to 11-1-67 had been deposited on 25-1-67 under Section 19-A. The plaintiff sent a notice terminating the tenancy to the defendants on 31-7-67. This notice was served on them on 2-8-67. Rent for 14 months amounting to Rs. 147/- including shop tax was claimed in the suit and it was prayed that the defendants be evicted from the shop on the ground of default under Section 13(1)(a).

3. Summonses for settlement of issues were sent for service on the defendants for 20-10-67. On the latter date Mangal Ram defendant was present. Kedar Nath did not appear and he had not been served. The next date fixed in the case was 4-12-67. On that date Kedar Nath also appeared. 23rd December, 1967 was fixed for filing written statements. On the latter date on the prayer of the defendants time was granted to them upto 4-1-68 to file a written statement. On 4-1 68 the defendants filed their written statement. In (his it was alleged that rent from 19-7-66 to 11-1-67 was tendered but was not accepted and was deposited in court! under Section 19-A on 25-1-67. Further it was alleged that rent from 12-1-67 to 8-7-67 I was also tendered but was not accepted and was deposited under Section 19-A on 29-8-67. It was also stated in the written statement that the defendants were willing to pay forthwith rent which fell due after 8-7-67.

4. On the date of filing this written statement namely 4-1-68 the defendants also filed an application in which it was stated that rent upto 8-7-67 had been deposited in court and it was prayed that the plaintiff may be got paid rent which fell due after 8-7-67 in the presence of the court and if he was not willing to accept it then it may be got deposited in court.

5. Rent for 6 months from 9-7-67 to 1-1-68 was deposited by the defendants on 18-1-68. Rent for the following 3 months was paid on 21-3-68 after the plaintiff had moved an application stating that rent for the months 2-1-68 to 3-1-68, 1-2-68 to 29-2-68 had not been paid within 15 days:

(1) 2-1-68 to 31-1-68.

(2) 1-2-68 to 29-2-68.

(3) 1-3-68 to 30-3-68.

6. On 22-2-68 issues were framed in the case. On that very day the plaint tiff filed an application praying that the defence of the defendants may be struck out under Section 13(6) as they had neither paid the arrears of rent due on the first day of hearing nor paid or deposited the rent thereafter falling due month by month by the 15th of each succeeding month. On 21-3-68 a further application was filed for striking out the defence of the defendants in which it was pointed out that rent for the months from 2-1-68 to 31-1-68, and 1-2-68 to 29-2-68 had not been deposited within 15 days of its falling due. After hearing the parties the learned Munsif struck out the defence of the defendants under Section 13(6). This order was confirmed on appeal.

7. Two contentions were put forward on behalf of the defendants before the trial court. One was that rent for the Hindi month beginning from 2-1-68 and ending on 31-1-68 fell due on 1-2-68 and was payable under Section 13(4) by the fifteenth of March, Similarly it was contended that rent for the month 1-2-68 to 29-2-68 fell due on 1-3-68 and was payable by 15th April 1968. Now the rent for the month 2-1-68 to 31-8-61 was not paid even by 15-3-68 and so this argument could not help the defendants. The language used in Section 13(4) is:

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.

8. The plain meaning of this is that the rent for a particular Hindi month was to be paid by the 15th of the succeeding Hindi month. In other words it means that the rent for a particular month is to be paid within 15 days of the expiry of that month. The rent for the month 2-1-68 to 31-1-68 had to be paid by the 15th February 1968 and the rent for the month 1-2-68 to 29-2-68 had to be paid by 15-3-68.

9. The other contention put forward by the defendants in the trial court was that there was no specific order of trial court, directing the defendants to deposit rent month by month. No specific order is required to be passed specifically by the trial court as their is a statutory provision requiring its payment or deposit in Section 13(4). It is not laid down in this Sub-section that the court should pass an order directing the defendants to deposit or pay rent month by month.

10. Before the appellate court the only argument which was put forward of behalf of the defendants was that the defendants paid the rent for 3 months on 31-3-68 which was accepted by the plaintiff who could not therefore rely on the defaults made in making those payments. The appellate court rightly held that there could be no waiver of those defaults by the acceptance of rent by the plaintiff as this rent was accepted on the orders of court under protest. The plaintiff filed an application drawing the attention of the court to the fact that there was default in the payment of rent for the months 2-1-68 to 31-1-68 and 1-2-68 to 29-2-68 and praying that the defence be struck out. It was after this application was made that the defendants offered rent for 3 months from 2-1-68 to 30-3-68 and the court directed the plaintiff to accept this rent.

11. The argument which the learned Counsel for the defendants put forward in this Court was that as the defendants had disputed that rent for 12 months was in arrears they were not required to deposit any rent under Section 13(4) or 13(5) till that dispute was decided by the trial Court.

Sub-sections (4), (5), (6) and (7) of Section 13 run as follows:

(4)--In a suit for eviction on the ground set forth in clause (a) of Sub-section (1), within 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 percent 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.

(7)--If a tenant makes deposit or payment as required by sub-section(4) or Sub-section (5) decree for eviction on the ground specified in clause (a) of Sub-section (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord.

12. In interpreting the above sub-sections it is necessary to bear in mind the fact that Section 13 only gives protection to tenants who are ready and willing to pay rent of the premises to the full extent allowable under the Act.

13. There was some controversy about the meaning of the words 'the first clay of hearing which occur in Sub-section (4). These words are not defined in the Act. As to what first hearing means came up for consideration before their Lordships of the Supreme Court in Sangram Singh v. Election Tribunal Kotah : [1955]2SCR1 . It was held that the first hearing can be either for settlement of issues only or for final disposal of the suit. In Small Cause court cases the summons is issued for final disposal of the suit and in other suits it is issued for settlement of issues. In the present case the summons for the defendants were issued for the settlement of issues The date fixed for the settlement of issues is, thus the date of the first hearing within the meaning of Sub-section (4) of Section 13. In Dhansukhlal v. Dalichand which was a case under the Bombay Rents, Hotel& Lodging House Rates Control Act it was observed:

The date fixed for settlement of issues was Sept. 3, 1956 which can be taken to be the date of the first hearing of the suit for the purposes of the Act.

14. It was held by this Court in the following cases that the first day of hearing under Section 13(4) is the date for which summons is issued to the defendant for the settlement of issues:

1. Suraj Bhan v. Chandra Prakash S.B. Civil Revenue No. 484/1968 decided on 16-12-68.

2. Padam Chand and Ors. v. Kunjbeharilal and Anr. S.B. Civil Revision No. 446/1967 decided on 19-9-68.

15. The first day of hearing in the case was thus 4-12-67. Neither of these defendants made an application on that date to fix a time for depositing in court or paying to the landlord the arrears of rent due upto the date of making the deposit or payment together with interest. Nor did they make any application on the first day of hearing asking the court to determine the amount which was payable by them as arrears of rent. From their application dt. 4-1-68 it quite clear that there was no doubt in their mind that what they were required to deposit on the day of first hearing was the rent from 9-7-67 upto the date of payment. There was no dispute whatsoever about it. The case put forward in the plaint was that there was default in the payment of tent from 19-7-66 to 8-7-67, because the rent for this period was neither paid nor tendered to the plaintiff. The case of the defendants was that they had rendered this rent to the plaintiff but it was not accepted and therefore it was deposited in court under the provisions of Section 19-A. This rent for 12 months having been already deposited in court the defendants could not be required to deposit it again under Section 13(4) even if the plaintiff's allegations that it was not tendered to her was true.

16. It will thus be seen that there was no dispute as to the amount of rent payable by the tenants under Section 13(4). No order of the court was required under Section 13(5). On the first day of hearing namely 4-12-67 the defendants should have deposited rent for 5 months from 9-7-67 to 3-12-67 under Section 13(4). The trial court should have struck out the defence of the defendants under Section 13 (4) on that ground.

17. The defendants committed two further defaults in depositing the rent in accordance with Section 13(4). The rent for the month 2-1-68 to 31-1-68 was not deposited by 15-2-68. The rent for the month 1-2-68 to 29-2-68 was not deposited by 15-3-68. For these defaults also the plaintiff was entitled to have the defence of the defendant struck out under Section 13(6).

18. The revision application is accordingly dismissed with costs.


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