Skip to content


Kanhaiya Lal Vs. Amendra Kumar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 261 of 1974
Judge
Reported in1981WLN(UC)101
AppellantKanhaiya Lal
RespondentAmendra Kumar
DispositionAppeal allowed
Cases ReferredRam Kumar v. Jagdish Chandra
Excerpt:
.....purposes of section 13(4) of the act.;when the tenant is required to deposit or make payment of rent month by month, he can pay or deposit rent in court for a longer period in advance, which can be adjusted towards the monthly rent, as and when the same fell due. the defendant had fully complied with the provisions of sub-section (4) of section 13 of the act, in the present case and his defence against eviction was thus erroneously struck off by the first appellate court.;the rent deposited on november 28, 1967 by the tenant, though could not be considered to be a valid tender for purposes of section 19a of the act or even for the purposes of sub-section (3) of section 13 of the act, as they stood at the relevant time, yet the same was a valid deposit for the purposes of section 13(4)..........under sub-section (4) of section 13 of the act. the first appellate court also held that the rent deposited by the tenant under section 19-a of the act on november 28, 1967 was not in accordance with law as by then more than six month's rent had fallen due and thus the defendant was a defaulter in payment of rent. consequently, the plaintiff's appeal was allowed and the suit for ejectment was decreed by the first appellate court.5. in this second appeal it has not been argued that the tenancy was yearly, but learned counsel for the appellant submitted that the defendant-tenant could not be held to be a defaulter even according to the provisions of sub-section (4) of section 13 of the act and the defence of the appellant against ejectment could not have been struck off by the first.....
Judgment:

D.P. Gupta, J.

1. This second appeal relates to ejectment of a tenant from a shop situated in the town of Sujangarh on the ground of defaults for payment of rent.

2. The suit was filed on December 20, 1967 and the plaintiff claimed that the defendant had not paid rent for a period of over seven months. The tenancy was alleged to be monthly and the rent was said to be Rs. 33.75 paisa per month. The defendant's case was that the tenancy was annual and although the rent earlier was Rs. 201/- per annum it was subsequently raised to Rs. 401/- per annum. The defendant pleaded that he had deposited a sum of Rs. 401/-, towards yearly rent of the premises in dispute, in the trial court on November 28, 1967 under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (here in after called 'the Act') and that the rent so deposited should be considered to have been paid to the plaintiff landlord. Thus according to the defendant no amount was due towards rent on the date of the institution of the suit.

3. The trial court held that the rent agreed upon between the parties was yearly and not monthly as alleged by the plaintiff and that the defendant was making payment of yearly rent and the deposit of Rs. 401/- by the defendant on November 28, 1967 in the trial court under Section 19-A of the Act was sufficient compliance of the provisions of Section 13(1)(a) of the Act and the defendant could not be held to be a defaulter in payment of rent. Having come to the above conclusion, the trial court dismissed the plaintiff's suit.

4. On appeal, the learned Additional District Judge reversed the finding of the trial court on the question as to whether the tenancy between the parties was monthly or yearly. According to the first appellate court, the tenancy was monthly and not yearly. It was held that as the alleged tenancy between the parties was oral and no document was executed in respect thereof and as the tenancy was not for agricultural or manufacturing purposes, so under Section 106 of the Transfer of Property Act the tenancy must be deemed to be a monthly one. The first appellate court also proceeded to strike off the defence of the defendant against eviction, under Sub-section (6) of Section 13 of the Act, on the ground that rent was not deposited by the defendant tenant in the trial court month by month during the pendency of the suit, as required under Sub-section (4) of Section 13 of the Act. The first appellate court also held that the rent deposited by the tenant under Section 19-A of the Act on November 28, 1967 was not in accordance with law as by then more than six month's rent had fallen due and thus the defendant was a defaulter in payment of rent. Consequently, the plaintiff's appeal was allowed and the suit for ejectment was decreed by the first appellate court.

5. In this second appeal it has not been argued that the tenancy was yearly, but learned Counsel for the appellant submitted that the defendant-tenant could not be held to be a defaulter even according to the provisions of Sub-section (4) of Section 13 of the Act and the defence of the appellant against ejectment could not have been struck off by the first appellate court. The finding that the defendant tenant was a defaulter in payment of rent, within the meaning of Section 13(1)(a) of the Act, was also contested. Learned Counsel for the respondent supported the judgment of the first appellant court and argued that the defendant having failed to deposit the arrears of rent along with interest on the first date fixed in the suit, his defence against eviction was rightly struck off by the first appellate court under Section 13(6) of the Act and that the finding that the defendant-tenant was a defaulter was fully justified.

6. A lease of immoveable property from year to year or for any term exceeding one year or reserving an yearly rent can only be made by a registered instrument, as provided in Section 107 of the Transfer of Property Act. In the present case the tenancy was alleged to be oral and according to the defendant himself the rent payable was yearly but an yearly lease did not come into existence between the parties in the absence of a registered instrument. The consequence is that the contract between the parties reserving a yearly rent cannot be looked into and as held by their Lordships of the Supreme Court in Ram Kumar v. Jagdish Chandra AIR 1952 SC 21 the tenancy could not fairly presumed to be from month to month, in the case of a lease of immoveable property, which is neither for agricultural nor for manufacturing purposes. As the express contract of lease between the parties cannot be looked into, a lease implied by law from month to month can be presumed, as contemplated by Section 106 of the Transfer of Property Act. The contract between the parties reserving a yearly rent was no contract in the eye of law, as in the absence of a registered instrument, the same was in contravention of the provisions of Section 107 of the Transport of Property Act. Both the parties have admitted the relationship of landlord and tenant and payment and acceptance of rent in their pleadings in the suit, an implied lease shall be deemed to have come into existence and the provisions of Section 106 of the Transfer of Property Act would become operative and regulate the duration of the lease. No doubt when the rent reserved is annual, as in the present case, the ordinary presump'ion is that the tenancy was an annual one. But the difficulty in applying this presumption to the present case arises from the fact that a tenancy from year to year or reserving a yearly rent could only be made by registered instrument, as laid down in Section 107 of the Transfer of Property Act The tenancy in the present case, not being for manufacturing or agricultural purpose, could therefore be deemed to be a monthly tenancy and would be regulated by the provisions of Section 106 of the Transfer of Property Act. So far as the nature of tenancy is concerned, the finding of the first appellate court appears to be well founded.

7. The further question which arises in the present appeal is as to whether the first appellate court was justified in striking off the defence of the defendant-tenant at the appellate stage ?. It is clear from a perusal of the record of the trial court that on the first date fixed in the suit viz. February 15,1968 the defendant appeared and filed his written statement and also filed an application purporting to be under Sub-section (4) of Section 13 of the Act, as it stood at the relevant time. In the written statement, the defendant has taken the plea that the tenancy was not monthly but it was yearly and that rent payable by him was not Rs. 33.75 p. per month, but it was Rs. 360/-per year. In the application filed under Section 13(4) of the Act, it was stated by the defendant-tenant that on receiving the plaintiff's notice he deposited a sum of Rs. 401/- in the trial court under Section 19-A of the Act on November 28,1967 and that nothing was due against him in respect of arrears of rent and that if any amount was due in respect of arrears of rent or interest thereon, he was prepared to deposit the same. The plaintiff in his reply to the application submitted that the deposit made by the defendant was not in accordance with Section 19-B of the Act and that besides rent, interest and costs ought to have be?n deposited under Section 13(4) of the Act. The trial court by its order dated February 24, 1969 held that the main question which was required to be decided in the suit was when the rent became due and payable and as to whether any default was committed by the defendant. He, however, did not direct the defendant to make payment of any amount under Section 13(4) of the Act.

8. The provisions of Sub-section (4) of Section 13 of the Act, as they stood at the relevant time were as under:

(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 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.

According to the aforesaid provisions, the tenant was required to deposit in the court or pay to the landlord, on the first day of hearing of the suit or on or before such date as may be fixed by the trial court on an application made to it, an amount calculated at the rate of rent at which it was last paid for the period for which the tenant may have been in default and the period subsequent thereto upto the end of the month previous to that in which the deposit or payment was made, together with interest on such amount calculated at the rate of 6 percent per annum from the date when such amount was payable upto the date of deposit. The second part of the aforesaid provision requires the tenant to continue to make payment or deposit the rent in court, month by month by the 15th of each succeeding month, at a rate equivalent to the rent last paid. In the present case, it is not in dispute between the parties that the rent was last paid at the rate of Rs. 360/- per annum, which means that the rent was last paid at the rate of Rs. 30/- per month. If the amount deposited by the defendant-tenant on November 28, 1967 could be taken as a valid deposit of rent in the court, for purposes of Sub-section (4) of Section 13 of the Act, then it cannot be disputed that even on the first date of hearing of the suit, namely on February 5, 1968 the amount of Rs. 401/- would have been much more than the amount which was payable or required to be deposited by the defendant-tenant in accordance with the provisions of Section 13(4) of the Act, as they stood at the relevant time, in respect of arrears of rent upto the end of January 1968 and the interest thereon.

9. It cannot be lost sight of that the plaintiff claimed that only 8 months' rent was in arrears on the date of institution of the suit and even if rent for the subsequent two months before the first date of hearing of the suit be added and interest at the prescribed rate is added thereto, then also the sum of Rs. 401/- deposited by the defendant on November 28, 1967 would be far in excess of the amount which was payable or was required to be deposited in accordance with the provisions of Section 13(4) of the Act on the first date fixed in the suit. The rent, for the purposes of Section 13(4) of the Act was to be calculated at the rate at which it was last paid and not at the rate agreed upon by the parties for the current year. It is also borne out from the record that during the pendency of the suit, the defendant tenant had deposited rent at the rate of Rs. 401/- per year in advance. The deposit of Rs. 401/-in the first instance was made on April 6, 1968. A further sum of Rs. 434.45 paisa was deposited on April 12, 1969 which was for 13 months, as during that year there was an additional month according to the Vikram Sarawat. The first appellate court was thus apparently in error in holding that the defendant tenant had failed to make a deposit either of the arrears of rent in the first instance according to Section 13(4) of the Act or of the rent for subsequent period month by month during the pendency of the suit. Even assuming that the first appellate court was right in holding that it was the duty of the defendant-tenant under Sub-section (4) of Section 13 of the Act, as it then stood, to calculate the amount of rent due upto the last month prior to the first date of hearing of the suit and that the defendant was also required to pay interest on such amount, yet it was not correct to hold that the amount calculated on the aforesaid basis was more than the amount deposited by the tenant on November 28, 1967 under Section 19-A of the Act. The error appears to have crept in the decision of the first appellate court as the provisions of Section 13(4) of the Act, which existed at the relevant time, escaped its attention and it presumed that Rs. 401/-represented the amount of rent payable by the defendant tenant for the whole year. It was on this assumption that the defendant-tenant had failed to deposit the interest payable on over due rent. If the rent was to be paid by the defendant-tenant at the rate of Rs. 30/- per month, at which it was last paid, prior to the institution of the suit, then the amount of Rs. 401/- could very well be assumed to include not only the arrears of rent which had fallen due prior to February 5, 1968 but also the interest payable on that amount. The amount of Rs. 401/- had already been deposited by the defendunt tenant under Section 19-A of the Act on November 28, 1967 and the said amount was in deposit on the date of institution of the suit as also on February 5,1968 which was the first date fixed for hearing in the suit. The amount so deposited by the defendant tenant could very well have been considered as a valid deposit for purposes of Section 13(4) of the Act. The amount deposited by the tenant on November 27, 1968, under Section 19-A may not be a proper or valid payment for purposes of Section 19-A or 13(1)(a) of the Act, yet the same would amount to a valid deposit of arrears of rent and interest for purposes of Section 13(4) of the Act.

10. The first appellate court was also in error in holding that the defendant-tenant had failed to deposit rent month by month by the 15th day of the next succeeding month. Although the first appellate court was right in holding that even if the rent agreed upon between the parties to be paid for the premises might be yearly, yet the amount of rent required to be paid or deposited by the tenant, under the provisions of Section 13(4) of the Act, was month by month by the 15th of the next succeeding month. However, in the present case, as I have already pointed out above, the defendant tenant had deposited rent for a whole year in advance, even during the pendency of the suit. Further the amount so deposited was much more than that which was required to be paid or deposited under the provisions of Sub-section (4) of Section 13 of the Act, as they stood at the relevant time. The tenant had deposited a sum of Rs. 401/, while according to the provisions of Section 13(4) of the Act he was only required to pay or deposit Rs. 30/- per month during the pendency of the suit, at the rate at which rent was last paid before the institution of the suit. As the tenant had not paid or deposited rent month by month, the first appellate court presumed that the defendant had failed to deposit rent according to the provisions of Sub-section (4) of Section 13 of the Act, without taking into consideration the fact that rent was deposited by the defendant tenant in advance for a whole year and such deposit was far in excess of the rent which was payable according to the aforesaid provisions for the entire year. When the tenant is required to deposit or make payment of rent month by month, he can pay or deposit rent in court for a longer period in advance, which can be adjusted towards the monthly rent, as and when the same fell due. In this view of the matter, I am unable to agree with the first appellate court that the defendant-tenant had failed to comply with the provisions of Section 13(4) of the Act and that his defence against eviction was liable to be struck off. The facts narrated above lead to the conclusion that the defendant had fully complied with the provisions of Sub-section (4) of Section 13 of the Act, in the present case and his defence against eviction was thus erroneously struck off by the first appellate court.

11. Sub-section (7) of Section 13 of the Act, as it stood at the relevant time, provided that if the tenant made a deposit or paid rent, as required under Sub-section (4) or Sub-section (5) of that Section no decree for eviction on the ground specified in Clause (a) of Sub-section (1) of Section 13 of the Act could be passed against him. As in the present case, according to the findings arrived at by me above, the defendant tenant had deposited the amount of rent and interest as required by Sub-section (4) of Section 13 of the Act, a decree for ejectment could not be passed on the ground of defaults in payment of rent. The only course open to the court in such circumstances was to dismiss the suit for ejectment, but it could have allowed such costs to the plaintiff as it might have considered proper. In view of the fact that the tenant had already deposited a sum of Rs. 401/- on Novembsr 28, 1967 under Section 19-A of the Act and a notice in respect of such deposit had already been served on the plaintiff even before the institution of the suit, yet the plaintiff' proceeded to file the suit for eviction and as such he is not entitled to any amount by way of costs.

12. It may be true that the amount deposited by the defendant tenant under Section 19-A of the Act could not be said to have been deposited properly and validly, in compliance with the provisions of Section 19-A of the Act, as the said amount was not deposited within 15 days of the expiry of the month for which the same was payable, yet the amount so deposited could very well be taken into consideration for the purposes of Sub-section (4) of Section 13 of the Act. Thus the rent deposited on November 28, 1967 by the tenant, though could not be considered to be a valid tender for purposes of Section 19-A of the Act or even for the purposes of Sub-section (3) of Section 13 of the Act, as they stood at the relevant time, yet the same was a valid deposit for the purposes of Section 13(4) of the Act. In this view of the matter, the only course open to the court was as indicated in Sub-section (7) of Section 13 of the Act. As the defendant tenant had complied fully with the provisions of Sub-section (4) of Section 13 of the Act, the plaintiff's suit for eviction deserves to be dismissed. The landlord plaintiff would be at liberty to withdraw the amount deposited by the defendant tenant under Section 19-A of the Act in the trial court during the pendency of the suit, if the said amounts have not already been withdrawn by him.

13. In the result, the appeal is allowed, the decree passed by the learned Additional District Judge, Churu dated February 8, 1974 is set aside and the plaintiff's suit is dismissed. In the circumstances of the case, the parties are directed to bear their own costs in all the courts.


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