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Gulab Chand Vs. Raghuvirnath - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Appeal No. 14 of 1981
Judge
Reported in1981WLN(UC)237
AppellantGulab Chand
RespondentRaghuvirnath
DispositionAppeal allowed
Cases ReferredIn Sew Delhi Nolty v. Kalu Ram
Excerpt:
.....13(3)--no direction regarding rate of monthly rent--held, tenant cannot be called upon to deposit rent month by month by 15th of subsequent month.;the requirement of law under sub-section (3) of section 13 of the act is that the court in the order must provisionally determine the arrears of rent at a monthly rate at which it was last paid or was payable. in the absence of any direction in the order under sub section (3) of section 13 of the act as to what was the monthly rate of rent the tenant cannot be called upon to deposit month by month by the 15th of sub-sequent month rent till disposal of the suit.;appeal allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir &..........the amount determined within the time allowed by the court and further fails to deposit the rent month by month by the fifteenth of the subsequent month under section. 13(4) there is no option with the court but to strike out the defence of the tenant against eviction under the provisions of sub-section (5) of section 13 of the act. according to him while considering the case under sub-section (5) of section 13 of the act it is no longer open to the court to see as to whether the arrears of rent were correctly determined under sub-section (3) of section 13 of the act or not.4. section 13 sub-sections (1)(a),(3),(4) and (5) which are relevant for the present purposes are to the following effect:section-13-eviction of tenants-(1) notwithstanding anything contained in any law or.....
Judgment:

Mahendra Bhusan Sharma, J.

1. The suit premises are situated in Dhan Mandi Ganga-nagar and the respondent filed a suit against the appellant in the court of Civil Judge, Ganganagar on May 17,1978 and one of the grounds set out in the suit was that the appellant has neither paid nor tendered rent due for six months before the filing of the suit and as such was liable to be evicted. So far as the allegations seeking eviction of the appellant from the suit premises, with ragard to non-payment of rent are concerned, they were that the rent for the period from April 1, 1977 to March 31, 1978, 13 months @ Rs. 2500/- per year, amounting to Rs. 2708.33 was due and has neither been paid nor tendered. After the written statement had been filed, in with a plea was raised that the suit on the ground of default was without any basis and was wrong, the learned trial court under the provisions of Sub-section (3) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act') provisionally determined the arrears of rent and interest amounting to Rs. 2678.50p. on October 17, 1979, and allowed adjustment of Rs. 1,000/- which had been deposited by the appellant in that court. The appellant was directed to pay a sum of Rs. 1678.50 within 15 days in the trial court. While determining the arrears of rent and interest in terms of Sub-section (3) of Section 13 of the Act, the court took into consideration yearly rent @ Rs. 1,000/- per year the rate at which it was last paid.

2. The amount determined by the court was paid within time in the court. Rent for the month of October, 1979 was also paid by the fifteenth of next month, but so far as the rent for the months of November, December 1979 and January, 1980 is concerned, it was not paid within 15 days of their becoming due. It was also not paid within next fifteen days upto which the court had discretion he extended the time for payment of monthly rent. An application under Sub-section (5) of Section 13 of the Act for striking out the defence against eviction of the appellant was filed on behalf of the respondent on Feb. 28, 1980 wherein it was mentioned that the rent for the months November, December 1979 and January, 1980 has not been paid in terms of Sub-section (4) of Section 13 of the Act. After reply to this application was filed the learned trial court under the impugned order directed that the defence against eviction of the appellant be struck out before I take up the main arguments in the appeal it may be stated that before filing the suit for eviction,which was filed on May 17, 1978, the appellant deposited advance rent Under Section 19CC of the Act for the period from April 1, 1977 to March 31, 1978 on February 7, 1978. When an application Under Sub-section (5) of Section 13 of the Act for striking out the defence against the eviction of appellant was filed, the appellant gave application to the effect that a sum of Rs. 1,000/-towards the rent for payment to the respondent had been deposited by him Under Section 19CCofthe Act and, therefore, the monthly rent for the months of November, December, 1979 and January 1980 may be adjusted out of that rent. An application was also filed that the time for the payment of rent for the aforesaid three months may be extended and a case was also set up that the suit itself was not based on non-payment as set out in Sub-section (1)(a) of Section 13 of the Act. Therefore, the defence against eviction could not be struck out.The learned trial court inspite of these objections passed the impugned order.

3. The main contention of the learned Counsel for the appellant is that before the provision of Sub-section (5) or Sub-section (4) of Section 13 of the Act could be attracted it was necessary that the suit must have been based on default in payment or tender of rent to the respondent by the appellant for a period of six months or more. According to the learned Advocate notwithstanding the fact that the order Under Sub-section (3) of Section 13 of the Act provisionally determining the arrears of rent and interest was not challenged and the appellant also deposited rent for the month of October, 1979, the appellant can still raise a plea that the defence against eviction cannot be struck out because the suit is not based on the ground of non-payment of rent for six months as set out in Section 13(1)(a) of the Act. The contention of the learned Counsel for the appellant is that even from the bare reading of the plaint, it will be clear that the mode of payment of rent was yearly and as such the rent for the period from April 1, 1977 to March 31, 1978 could have only become due on March 31, 1978 or on April 1, 1978. Thus, the yearly rent for the period was not in default for a period of six months and, therefore, the case was not and could not be Under Section 13(1)(a) of the Act. The contention of Mr. Parakh, learned advocate for the respondent is that once the court provisionally determines the rent and arrears in terms of Sub-section (3) of Section 13 of the Act and no appeal is filed against that order, that order becomes final, though in view of Nanneh Shah v. Ram Kumar (1966 RLW, page 446) it could be challenged in the final appeal as and when filed, against the decree. Mr. Parakh submits that once the tenant does not comply with the order under Sub-section (3) of Section 13 of the Act, inasmuch as he does not deposit the amount determined within the time allowed by the court and further fails to deposit the rent month by month by the fifteenth of the subsequent month Under Section. 13(4) there is no option with the court but to strike out the defence of the tenant against eviction under the provisions of Sub-section (5) of Section 13 of the Act. According to him while considering the case under Sub-section (5) of Section 13 of the Act it is no longer open to the court to see as to whether the arrears of rent were correctly determined under Sub-section (3) of Section 13 of the Act or not.

4. Section 13 Sub-sections (1)(a),(3),(4) and (5) which are relevant for the present purposes are to the following effect:

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 (xxx) 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 iix months; or

(3) In a suit for eviction on the ground set for forth in Clause (a) of Sub-section (1) with or without any of the other grounds referred to in that Sub-section, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to the land-lord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have make default including the period subsequent there to upto the end of the month previous to that in which such determination 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 up to the date of determination:

Provided that while determining the amount under this Sub-section the court shall not take into account the amount of rent which has barred by limitation on the date of the filing of the suit.(4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under Sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under Sub-section (3).

(5) If a tenant fails to deposit or pay any amount referred to in Sub-section (4) (xxx) 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.

A bare perusal of the above extracted relevant provisions of Section 13 of the Act will make it clear that before a Court can be called upon to provisionally determine the arrears of rent and interest in terms of Sub-section (3) of Section 13 of the Act a suit for eviction must be on the ground as set out in clause (a) of Sub-section (1) with or without any other ground.

5. The contention of the learned Advocate for the appellant is that even while hearing an appeal against the order Under Sub-section (5) of Section 13 of the Act the court should examine as to whether the suit is based on nonpayment or non tender of rent as set out tn Sub-section (1) (a) of Section 13 of the Act. There is no authority of this Court directly on the point. Admittedly in this case when the court provisionally determined the arrears of rent and interest in terms of Sub-section (3) of Section 13 of the Act on 17-10-79, no appeal was filed against that order though the order was appealable Under Section 22 of the Act. The controversy as to whether the suit is really based on the ground as set out in Sub-section (l)(a) of Section 13 of the Act can only be decided after framing proper issue and after taking evidence of the parties. A perusal of Sub-section (5) of Section 13 of the Act which has already been extracted above will make it clear that if the tenant fails to deposit or pay any amount referred to in Sub-section (4), namely, the amount determined Under Sub-section (3) of the Act by the court and/or fails to deposit monthly rent thereafter month by month by 15th of subsequent month, the court has no option but to order that the defence against eviction of the tenant should be struck out. Therefore, I am of the opinion that while considering the case as to whether for non-compliance of the provision of Sub-section(4) of Section 13 of the Act the defence against eviction of a ten-ant should be struck out or not the court is not called upon to decide afresh as to whether the determination of the amount Under Sub-section (3) of Section 13 of the Act was in accordance with law. The learned Advocate has placed reliance on Kaajulal v. Amerchand (1973 Weekly Law Notes para 1 page 841), but that was a case where in second appeal against the decree in an eviction suit it was observed by the learned Judge that a suit for eviction on the ground of non-payment of rent Under Section 13(l)(a) of the Act could only be decreed in case on the allegation of the plaint the suit can be said to be based on a ground of default. In that case yearly rent was payable and before it was in default for a continuous period of 6 months a suit for eviction on the ground of non-payment was filed. Observing that in case the rent is payable yearly, the default clause will only be attracted in case the yearly rent is not paid for a period of six months, it was held that the suit was not based on non-payment of rent and as such on that ground it could not be decreed. It cannot be disputed in view of Ramkumar's case (1966 RLW 446) in an appeal which may be filed against the decree of eviction, the order striking out the defence will be open to challenge. But as already stated earlier while considering as to what is the effect of contravention of Sub-section (4) of Section 13 of the Act the Court will only confine itself to the point as to whether a tenant has complied with the provisions of Sub-section (4) of Section 13 of the Act or not. Therefore, I am unable to agree with the learned Advocate that even in an appeal against an order under Section 13(5) the Court should see as to whether the suit is based on the ground of default or not. It may be observed here that even if defence against eviction for non compliance of the provisions of Sub-section (4) of Section 13 of the Act is struck out and as a result thereof the tenant is precluded from producing evidence in support of his defence or in rebuttal, if any it will ultimately not make much difference because if in the appeal which may have to be filed, it is held by the Court that the defence was wrongly struck out then the decree will have to be set aside and an opportunity will have to be granted to the tenant to lead evidence in support of his case.

6. The next contention of the learned Advocate is that the provision of Sub-section (5) of Section 13 of the Act are of a penal nature and unless there is order under Sub-section (3) of Section 13 of the Act as to at what monthly rate the tenant is required to pay rent month by month by the 15th of the subsequent month during the tendency of the suit, the defence against eviction cannot be struck out because it cannot be then said that the tenant has not complied with the latter part of Sub-section (4) of Section 13 of the Act. In reply the Advocate for the respondent submits that this point was never urged either in the trial court nor taken in the memo of appeal and, therefore, the appellant should not be allowed to argue on this point. But this point arises from a bare reading of the provisions of section 13 of the Act and I am of the opinion that notwithstanding it does not appear to have been argued in the trial court and further notwithstanding that a ground has not been taken in the appeal to that effect, the question being purely a question of law and the facts being not disputed can be allowed to be agitated.

7. Before I take the above point it may be stated here that Under Section 19-CC of the Act the appellant (tenant) had deposited a sum of Rs. 1000/- (on 7-2-78 as advance rent of Rs. 1000/-for the period 1st April, 1977 to 31st March, 1978. This fact was brought to the notice of the court at the time the court passed an order Under Sub-section (3) of Section 13 of the Act, but the court without assigning any reason refused to adjust this amount of Rs. 1000/- The law is settled that a tenant who has deposited rent under Section 19 A of the Act before the suit, is entitled for its adjustment and out of the amount determined, he can only be asked to deposit the balance after adjustment of the aforesaid amount. Similarly, I am also of the opinion that in case advance rent is deposited by a tenant Under Section 19 CC of the Act before the suit for eviction is filed, the tenant is entitled to the adjustment of that amount and he can only be called upon to deposit the balance amount determined under Sub-section (3) of Section 13 of the Act. Though as already stated earlier the order passed under Sub-section (3) of Section 13 of the Act is not open to consideration either at the time when the defence against eviction is struck out under Sub-section (5) of Section 13 of the Act or in an appeal against an order Under Sub-section (5) of Section 13 of the Act, but the fact cannot be lost sight of that in the instant case a sum of Rs. 1000/- had been deposited by the tenant on Feb. 7, 1978 by way of advance given Under Section 19 CG of the Act. If this amount would have been adjusted, which should have been adjusted, in the amount determined Under Section (3) of Section 13 of the Act than much more amount then due would have been available with the land lord. Be that as it may as I shall presently show that the court did not discharge its duty as enjoined on it under Sub-section (3) of Section 13 of the Act and, therefore, the tenant cannot be penalized for noncompliance with the latter part of Sub-section (4) of Section 13 of the Act.

8. A look at Sub-section (3) of Section 13 of the Act will show that it is the duty of the court to provisionally determine the arrears of rent at the rate of rent which was last paid or was payable. The amount is to be calculated at the monthly rent for the period for which the tenant may have made default including the period subsequent thereto upto the find of the month previous to that in which such determination is made. Interest at the rate of six per cent per annum on the amount calculated is also to be allowed. Under Sub-section (4) of Section 13 of the Act, it is the obligation of the tenant to continue to deposit in court or pay to the landlord month by month the monthly rent subsequent to the period upto which the determination had been made by 15th of the each succeeding month or within such time not exceeding 15 days as may be extended by the court at the monthly rat e at which the rent was determined by the court under Sub-section (3) of Section 13 of the Act. A close reading of the provisions of Sub-sections (3) and (4) of Section 13 of the Act will make it clear that the tenant can only be called upon to continue to deposit monthly rent at such rate at which the rent is determined by the court under Sub-section (3) of Section 13 of the Act. In the instant case a bare look at the plaint will show that it is not mentioned therein as to what was the monthly rate of the rent or that at rate monthly rent was paid by the appellant. It is only averted that the rate of rent was Rs. 1000/-yearly. Now, if we look to the order dated October 17, 1919 of the learned trial court which order was passed under Sub-section (3) of Section 13 of the Act, it will be clear that the court has not mentioned therein the monthly rent at which the amount of rent and interest was determined in terms of Sub-section of Section 13 of the Act. In Pirubhai v. Trikamlal : AIR1969Guj285 the provisions of Section 11(4) of the Bombay Rent Hotel and Lodging Houses Rates Control Act 57 of 1947 were under consideration. The last part of Sub-section (4) of Section 11 of that Act provided that Under Sub-section (4) of Section 11 of the Act the Court was empowered to direct that if the tenant fails to comply with any such of the order made by the court within such time as may be allowed by it, he shall not be entitled to appear in or to defend the suit except with the leave of the court. It was held that such an order must precede the consequences. In para 4 at page 287 (Pirabhai's case) it was observed as follows:

The last part of Sub-section is relevant for the present purpose. Under that part of the Sub-section the Court is empowered to direct that if the tenant fails to comply with any such order of deposit made in the Court; within such time as may be allowed by it, he shall not be entitled to appear in or defend, the suit except with leave of the Court. Therefore, the consequence that the tenant shall not be entitled to defend the suit except with leave of the Court is a consequence of the direction issued by the Court in that behalf. On a plain reading of the provision the direction must, precede the consequence. The direction contemplated is one under which the tenant knows that if he fails to comply with the order of deposit, the consequence as set out in the direction shall follow. Till such direction has been issued, the penal consequences provided cannot follow. This is as it should be, because the tenant is to be deprived of the right to defend a right normally available to him and inherent in the rule of law. Before he is deprived of that right, there must be clear indication that the Court was going to exercise the power available to it under this provision because of his failure to comply.

In Sew Delhi Nolty v. Kalu Ram AIR 1976 Supreme Court 1937 it was observed that when a duty is cast on an authority to determine the arrears of rent the determination must be in accordance with law. I am therefore, of the opinion that the requirement of law under Sub-section (3) of Section 13 of the Act that the court in the order must provisionally determine the arrears of rent at a monthly rate at which it was last paid or was payable. In the absence of any direction in the order Under Sub-section (3) of Section 13 of the Act as to what was the monthly rate of rent the tenant cannot be called upon to deposit month by month by the 15th of subsequent month rent till disposal of the suit. As already stated earlier in this case monthly rent has not been specified. And therefore, the appellant could not comply with the latter part of Sub-section (4) of Section 13 of the Act. Merely because the appellant himself worked out the monthly rate of rent taking the yearly rent of Rs. 1000/- and deposited the monthly rent for the month of October 1979 and thereafter failed to deposit the rent for the months of November, December, 1979 and January 1980 within the time allowed by the court in the facts and circumstances of this case, the consequence under Sub-section (5) of Section 13 of the Act could not have followed. It may be stated here that except for the rent of aforesaid three months there is no dispute between the parties.

9. In the result the appeal is allowed, the order of the trial court passed under Sub-section (5) of Section 13 of the Act striking out the defence against eviction of the tenant appellant is set aside. Cost of this appeal is made easy. The trial court is now directed to clearly specify as to at what rate the monthly rent is to be deposited.


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