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Mohan Lal Vs. Lakhe Khan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 457 of 1969
Judge
Reported in1969WLN370
AppellantMohan Lal
RespondentLakhe Khan
DispositionPetition dismissed
Cases ReferredKaluram v. Baidyanath
Excerpt:
.....and interest thereon by the time fixed in this behalf the tenant must continue to deposit or pay rent month by month by the 5th of each succeeding month and if he fails to do that the court has no option but to strike out the defence of the tenant against eviction. in other words the court has no discretion in the matter and the tenant must discharge the statutory obligation laid upon him by compliance with the provisions of sub-section (4).;section 13(4) constitutes a statutory obligation on the tenant which he must comply f with, if he wants to get the protection of the provisions of section 13 of the act lest the inevitable consequence of his defence against eviction being struck off under sub-section (6) must follow.;in order that he may claim protection from eviction on the ground..........and interest thereon by the time fixed in this behalf the tenant must continue to deposit or pay rent month by month by the 15th of each succeeding month and if he fails to do that the court has no option but to strike out the defence of the tenant against eviction. in other words the court has no discretion in the matter and the tenant must discharge the statutory obligation laid upon him by compliance with the provisions of sub-section (4). a somewhat similar situation had arisen in kaluram v. baidyanath air 1966 sc.1909. it was a case under the west bengal premises tenancy act, 1956 (act no. 12 of 1956) the landlord brought a suit on 11-12-1961 against the tenant for ejectment on several grounds one of which was that the tenant had failed to pay or deposit the rent for the last.....
Judgment:

C.M. Lodha, J.

1. This revision application has been filed by the defendant-tenant from an order of the Additional District Judge No. 2, Jodhpur dated 17-7-1969 by which the learned Judge upheld the order of the Additional Munsiff-Magistrate No. 1, Jodhpur dated 18-1-1969 whereby the defence of the defendant was struck out under Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act').

2. The non-petitioner Lakhe Khan filed the suit out of which this revision applicatian arises on 4-7-1967 against the petitioner for ejectment from the premises in question inter alia on the ground that the defendant had neither paid nor tender - the amount of rent due from him for more than six months. On 12-9-1967 the defendant-petitioner made an application under Section 13(4) of the Act on which the Court passed an order on 20-12-67 directing the defendant to deposit the arrears of rent, along with interest thereon at the rate of 6% per annum. The defendant actually deposited the arrears of rent in the Court as also the interest and the costs of the suit, Rs. 783/- on 20-11-1967, but did not deposit month to month rent thereafter as provided in Section 13(4) of the Act. Consequently on 8-11-1968 the non-petitioner filed an application under Section 13(6) of the Act praying that since the defendant-tenant has not deposited month to month rent as provided in Sub-section (4) of Section 13 of the Act his defence against eviction be struck out. This application was allowed and the Learned Munsiff struck out the defendant's defence against eviction. The defendant consequently filed an appeal in the Court of District Judge, Jodhpur which was transferred to the Court of Additional District Judge No. 2, Jodhpur For disposal. As already stated above the defendant was unsuccessful in the appeal and has consequently come in revision to this Court.

3. Learned Counsel for the petitioner has urged that the defendant had pleaded in his written statement that he had regularly tendered the amount of rent due from him but the plaintiff out of ulterior motive did not accept the same. He has also contended that the issues were framed in the case on 6-1-68 but the plaintiff did not press for an issue on the the question of default on the part of the defendant to pay the rent for more than six months. It is thus argued that the plaintiff had abandoned this ground and consequently could not rely upon it. It is however admitted on behalf of the petitioner that after having deposited the arrears of rent and interest on 20-11-1967 the defendant did not deposit month to month rent thereafter.

4. Learned Counsel for the respondent has however contended that whenever a landlord brings a suit on the ground of non-payment of rent by the tenant for a period of more than six months with or without any of the other grounds referred to in Section 13(1), it is obligatory on the part of the defendant to make an application under Section 13(4) if he wants to save himself from eviction on the ground of default, and also to comply with the conditions laid down in Section 13(4) thereafter. His contention is that if the tenant fails to comply with the provisions of S, 13(4), then the Court has no option but to strike out his defence as provided in Sub-section (6) of that section. He submitted that there is no question of that ground on the part of the plaintiff-landlord in view of the statutory obligation imposed upon the tenant by virtue of Sub-sections (4) and (6) of Section 13 of the Act.

5. For a correct appreciation of the rival contention arised on behalf of the parties it would be proper to reproduce, here, some of the relevant provisions of Section 13 of the Act. Section 13(1)(a) which is relevant for our purpose reads thus:

Section 13. Eviction of tenants:

(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied-

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

Sub-clause (4) of this Section is as follows:

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, 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.

Then comes Sub-section (6):

(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.

6. A bare perusal of Sub-section (4) shows that after depositing the arrears of rent and interest thereon by the time fixed in this behalf the tenant must continue to deposit or pay rent month by month by the 15th of each succeeding month and if he fails to do that the Court has no option but to strike out the defence of the tenant against eviction. In other words the Court has no discretion in the matter and the tenant must discharge the statutory obligation laid upon him by compliance with the provisions of Sub-section (4). A somewhat similar situation had arisen in Kaluram v. Baidyanath AIR 1966 SC.1909. It was a case under the West Bengal Premises Tenancy Act, 1956 (Act No. 12 of 1956) The landlord brought a suit on 11-12-1961 against the tenant for ejectment on several grounds one of which was that the tenant had failed to pay or deposit the rent for the last three years in accordance with law. The deference of the tenant was that the rent had been regularly paid to the landlord in time upto August 1960 and thereafter it was pleaded that when the owner was not prepared to accept the same, the tenant deposited them with the House Rent Controller from month to month. During the pendency of the suit the landlord made an application under Section 17(3) of that Act, and claim that the defence of the tenant against the eviction should be struck out because he failed to deposit or pay the amount Court as required by Section 17(1) of the Act. This application was opposed by the tenant on the ground that Section 17(3) could not be invoked against him in view of the fact that he had been depositing the rent from month to month with the House Rent Controller and that the deposit of rent amounted to payment of rent by him to the landlord and therefore no default had been committed by him at all. Section 17(1) of the West Bengal Premises Tenancy Act which was under consideration before their Lordships lead thus:

On suit or proceeding being instituted by landlord on any of the grounds referred to in Section 13, the tenant shall, subject to the provisions of Sub-section (2) within one month of the service of the writ or summons on him, 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 eight and one third 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 the sum equivalent to the rent at that rate.

7. In these circumstances their Lordships were pleased to observe:

It is thus clear that whatever may be the cause on which the landlord's claim for eviction is based, Section 17(1) provides that subject to the provisions of Sub-section (2), within one month of the service of the writ or summons on him, the tenant is required to deposit in Court the amount in the manner prescribed by it. If he fails to comply with the requirement of Section 17(1), Section 17(3) steps in and enables the landlord to claim that the defence of the tenant against delivery of possession should be struck out. If Sections 17(1) and (3) are read by themselves, there is no doubt that appellant No. 1 has failed to comply with Section 17(1), and so, Section 17(3) can be legitimately invoked against him.

As to the argument advanced on behalf of the tenant in that case that the deposit made by the tenant with the Rent Controller under Section 21 of that Act, should be considered as sufficient compliance with Section 17(1), their Lordships were pleased to hold that the deposit of rent with the Rent Controller was based on the contractual obligation of the tenant to pay the rent, whereas the deposit of rent made in Court Under Section 17(1) is the result of a statutory obligation imposed by the said Sub-section and consequently the deposit of rent by the tenant with the Controller of Rent could not save the tenant from the inevitable consequence which flows under Section 17(3) on account of non compliance with the provisions of Section 17(1). In the present case, however, there is no plea of payment of month to month rent by the tenant to anybody at all.

8. It will be noticed that Section 17(1) of the West Bengal Premises Tenancy Act is similar to Section 13(4) of our Act. Section 17(2) of that Act deals with the cases where there is a dispute as to the amount of rent payable by the tenant as we have got Section 13(5) in our Act. But that provision is not relevant. Section 17(3) of that Act which is similar to Section 13(6) of our Act provides that if a tenant fails to deposit or pay any amount referred to in Sub-section (1) or Sub-section (2) the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit.

9. Thus it is clear from the judgment of their Lordships referred to above that Section 13(4) constitutes a statutory obligation on the tenant which he must comply with, if he wants to get the protection of the provisions of Section 13 of the Act lest the inevitable consequence of his defence against eviction being struck off under Sub-section (6) must follow.

10. It may also be relevant here to point out that the issues were framed in the present case on 6-1-1968 whereas the application had been made by the defendant under Section 13(4) of the Act on 20-10-1967, and the arrears of rent had actually been deposited on 20-11-1967. I might at this juncture also refer to Sub-section (7) of Section 13 which lays down that if a tenant makes deposit or payment as required by Sub-section (4) or Sub-section (5), no 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. Thus in a suit for eviction brought by the landlord on the ground of nonpayment of rent, it is compulsory for the tenant to comply with Section 13(4) of the Act irrespective of all other considerations and if he does not do so the benefits of the Act would not be available to him, In this view of the matter there is no room for argument that the plaintiff had abandoned by the the ground of default by the tenant in payment of rent.

11. Learned Counsel for the petitioner urged that the opening words of Section 13(1) create a bar against a decree for eviction being passed against the tenant unless it was satisfied that the tenant has neither paid not tendered the amount of rent due from him for six months, and, therefore, irrespective of the provisions of Sub-section (4) and Sub-section (6) it is obligatory on the part of the Court to enquire whether the default as contemplated by Clause (a) has been committed by the tenant? The answer to this question is furnished by the provisions of Sub-sections (4), (6) and (7), Sub-section (4) makes it obligatory on the part of the tenant to deposit the rent in arrears and to continue to deposit or pay the monthly rent thereafter in the manner provided therein and Sub-section (7) makes it clear that if the tenant does so then he cannot be evicted even though he may have committed default in payment of rent as provided Under Sub-section (1), Clause (a). But in order that he may claim protection from eviction on the ground set-forth in Clause (a)of Sub-section (1) of Section 13, it is obligatory for him to comply with the provisions of Sub-section (4) and if he does not do so, his defence against eviction under the Act has to be struck out under Sub-section (6). In other words the safeguards provided to the tenant under Section 13 of the Act which is a special law ceases to be available to him on his failure to carry out the statutory obligations imposed upon him by that section itself.

12. No other ground was pressed in support of this revision appplication.

13. The net result of the fore-going discussion is that the trial court was right in striking out the defence of the defendant under Section 13(6) of the Act, and the first appellate court was justified in upholding that order.

14. This revision is therefore without force and is hereby dismissed, In the circumstances of the the case parties are left to bear their own costs.


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