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Jamna Lal Vs. Kanhaiya Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 107/1982
Judge
Reported in1982WLN751
AppellantJamna Lal
RespondentKanhaiya Lal
DispositionPetition dismissed
Cases ReferredBhubaneshwar Misra and Ors. v. Shakuntala Devi and Ors.
Excerpt:
.....interest and also his liability. he was not satisfied that the amount had been rightly calculated. time to deposit could be extended up to 13th march, 1979. when such a provision is required to be liberally construed and when the entire amount of rent has already been deposited, it was legitimate for the court to have extended the time with regard to the deposit of interest upto 9. 2.1979. thus looking to the facts and circumstances of the case, the defendant deserves extension of' the time, regarding the deposit of interest and an application for extension of time as well as orders thereon extending the time can be passed at any time after the expiry of the total period, to which the time can be extended by the court. therefore, clearly of the view that time upto 9. 2. 1979 has been..........extends only upto three months in the second case the power extends upto 15 days. beyond this period, time cannot be extended, but within this period the time can be extended by the court and it has been observed that the provision contained in sab-section (4) of section 13 of the act being a beneficial provision, should be liberally cons trued in favour of the tenant & reference has been made to the other decisions in jagannath v. jadharam 1980 rlw 42 & ramkishore v. rupesh kumar 1982 rlw 176. it was also observed in dwarkadas's case (supra) that.generally, in such provisions, the legislature introduces the expression 'sufficient cause'. but there is a significant omission of such an expression in sub-section (4) and that gives us clearly the legisla-lative intent. the legislative.....
Judgment:

M.C. Jain, J.

1. This petition has been filed by the plaintiff against the order dated 13-1-1982 of the Civil Judge, Pali, whereby he condoned the delay in depositing the amount of interest and further set aside the order passed on the applications dated 16-2-1979 and 19-2-1979 presented by the defendant. As a consequence of condation of delay and reversal of the order passed on the above applications, the order dated 16-2-1979 striking out the defence of the defendant, was also set aside.

2. The facts giving rise to the present revision petition may, briefly, be stated. The plaintiff Jamnalal instituted a suit for arrears of rent and ejectment on the ground of default. On 13-12-l978 the court. determined the provisional rent as well as interest. The provisional rent was determined to the tune of Rs. 357/- and the interest was determined as Rs. 16.07 and the Court directed the defendant to deposit the total amount of Rs. 373.07 by 31-1-1979. The amount of rent to the tune of Rs. 357/- was deposited by the tenant in court on the same date, that is, on 13-12-1978 but he failed to deposit the amount of interest upto 31-1-1979, as ordered by the Court. Instead he moved an application on 16-2-1979, in which he staled that he had deposited the amount of interest on 9-2-1979, but the plaintiff may be directed to give the account as to how this amount of interest has been arrived and till then the payment of interest may not be made to the plaintiff. He further submitted another application on 19-2-1979, in which he reiterated that the plaintiff is not entitled to the amount of interest and that amount of interest has been deposited by him on 9-2-1979 and the plaintiff may further be directed to submit reply to his application dated 16-2-79 and he prayed that proper orders may be passed. It may also be mentioned that the defendant was unrepresented before the trial court. On 16-2-1973 an application was also moved by the plaintiff for striking out the defence against eviction. On 16-2-1979, earlier the defendant absented, so exparte proceedings were drawn against him, but when he appeared, on his application order drawing ex parte proceedings was set aside and the court disposed of the plaintiff's application and the defendant's defence against eviction was struck off. It was recorded in the order dated 16-2-197 that the defendant has moved an application in reply to the plaintiff's application dated 16-1-1997 and in the reply he has stated that the total amount has been deposited. Despite, treating the defendant's application to be a reply to the plaintiff's application the trial court heard the arguments on the defendant's applications dated 16-2-1979 & 19-2-1979 & rejected the same by the order dated 28-8-1981. The defendant went in appeal. The learned Civil Judge heard the appeal, allowed the same and passed the order, as stated above. Dis-satisfied with that order, the present revision petition has been filed by the plaintiff.

3. I have heard Shri K.C. Samdaria, learned Counsel for the plaintiff petitioner and Shri R.S. Sharma, learned Counsel for the defendant-non-petitioner.

4. In this revision petition an application has been moved on behalf of the defendant for extension of time with regard to deposit of the amount of interest. The defendant sought extension upto 9-2-1979 under Sec 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). It was stated in the application that the defendant Kanhaiya Lal was unrepresented in the trial court and further that he was not aware of the consequence of non-deposit of interest in time and he further wanted to get the clarification of the interest, so a bonafide mistake was committed by him, and, as such nine day's time may be extended Reply to this application was filed by the plaintiff-petitioner.

5. The first question that arises for consideration in the present revision petition, is as to whether nine clay's time can be extended, as prayed by the defendant-opposite-party. Mr. Samdaria, contended that the defendant did not move any application before the trial court or before the first appellate court for extension and also did not make any prayer at the time when his defence against eviction was struck off on 16-2-1979. Now at this stage of the case, the defendant is not entitled to any extension of time, nor such time can be extended by the court. In support of his contention reliance has been placed by him on a decision of this Court in Daulat Ram Smt. Champa Devi (1980 (2) R.C.J. 359 . It may be mentioned that it appears that the amended provision of Section 13(4) was not brought to the notice of the learned Judge & the learned judge proceeded to pass his judgment on an earlier decision of this Court in Hira lal v. Hari Bux 1975 R.C.J. 328 : 1975 WLN 236, The case of Hiralal v. Hari Bux was considered by this Court in Lalchand v. Sant Ram 1973 R.L.W 119. In that case Section 13(4), as amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976, was considered and it was observed as under;

In my view, the provision of Section 13 have been amended so as to remove the hardship to the tenant, where he is unable to deposit the rent month by month within the specified time on account of some genuine difficulties or unforeseen obstacle in his way or for reasons beyond his control and beneficial construction should be given to the amended provisions of Sub-section (4), in she light of the purpose for which the amendment has been introduced in Section 13 of the Act. It has not been laid down by the Legislature that the tenant should submit an application within the period of 15 days after the expiry of the month, if he desires an extension of the period specified for depositing the monthly rent, in Sub-section (4) of Section 13 of the Act. In the absence of any restrictive provisions in that respect, the Court could extend the time for making the deposit at any time, subject to the only condition which is prescribed by the Legislature viz. that further extension could not be made for a period of more than 15 days, after the expiry of 15 days from the end of the month. Of course, it must be understood that it is not the right of a tenant to obtain such an extension but the Court has a discretion, which should always be exercised in a judicial manner.

In Lalchand's case (supra) it was held that the application for extension can be moved within the time to which extension may be allowed and even after expiry of that time and even the order of the court on such an application for extension of time may be passed before the period specified in Sub-section (4) or thereafter. Under Sub-section (4) of Section 13, the tenant is required to deposit the amount determined by the court under Sub-section (3) within 15 days from the date of determination or within such further time not exceeding three months, as may be extended by the court. Thus, the power of extension upto a period of three months vests in the court.

6. I had occasion to consider the provision of Sub-section (4) of Section 13 in S.B. Civil Revision No. 7/1982-Dwarkados v. Smt. Dropadi decided on November 17, 1982. In that case, the question relating to the deposit of rent in respect of each succeeding month, after the deposit or payment of rent as determined under Sub-section (3), was considered. In respect of rent for every succeeding month, power of extension is restricted to 15 days. The provision relating to the deposit of amount determined under Sub-section (3) and the provision relating to the deposit of rent of each succeeding month, so far as the power of extension is concerned, are on equal footing. In the first case the power extends only upto three months in the second case the power extends upto 15 days. Beyond this period, time cannot be extended, but within this period the time can be extended by the court and it has been observed that the provision contained in sab-section (4) of Section 13 of the Act being a beneficial provision, should be liberally cons trued in favour of the tenant & reference has been made to the other decisions in Jagannath v. Jadharam 1980 RLW 42 & Ramkishore v. Rupesh Kumar 1982 RLW 176. It was also observed in Dwarkadas's case (supra) that.

Generally, in such provisions, the legislature introduces the expression 'sufficient cause'. But there is a significant omission of such an expression in Sub-section (4) and that gives us clearly the legisla-lative intent. The legislative intent appears to be that power of extension should vest in the court to be exercised liberally.

7. Whether the facts the present case warrant extension of time or not, deserve consideration. The defendant was unrepresented in the trial court. He had deposited the entire amount of rent on the very day of determination and the amount of interest was deposited within nine days. He could have moved an application in the trial court for extension of the period and the court could have extended the period up to three mouths from the date of determination of the provisional rent under Sub-section (3) of Section 13 of the Act. When the defendant was unrepresented, the court could have asked the defendant for moving an application for extension of time, more particularly when the court considered the defendant's application dated 16. 2. 1979 to the reply of the plaintiff's application for striking out the defence and the defendant in his application dated 16. 2. 1979 has clearly stated that the amount of interest has already been deposited on 9.2.1979. The defendant was contesting the calculation of the amount of interest and also his liability. He was not satisfied that the amount had been rightly calculated. If the court would have asked the defendant to move an application for condonation of delay, the defendant would have moved such an application. When an ex parte order was passed against the defendant, an application for setting aside the ex parte order must have been sought. Similarly, the defendant could have been asked to move an application for extension. Time to deposit could be extended up to 13th March, 1979. When such a provision is required to be liberally construed and when the entire amount of rent has already been deposited, it was legitimate for the court to have extended the time with regard to the deposit of interest upto 9. 2.1979. Thus looking to the facts and circumstances of the case, the defendant deserves extension of' the time, regarding the deposit of interest and an application for extension of time as well as orders thereon extending the time can be passed at any time after the expiry of the total period, to which the time can be extended by the court. The first appellate court, in my opinion, was justified under the circumstances of the present case to extend the time, although there was no written application before the first appellate court. If written application is required, then the defendant has submitted the written application in this Court. Looking to the spirit of Section 13 (4) of the Act, it would be too harsh in the facts and circumstances of this case, not to extend the time. I am. therefore, clearly of the view that time upto 9. 2. 1979 has been rightly extended in the present case for depositing the amount of interest.

8. If once the time is extended, then the order dated 16. 2.1979 striking cut the defence automatically falls, as the very basis of the order goes away. It will be taken that the defendant has deposited the amount of rent and interest, as required of him under Section 13(4), of the Act. The order striking out the defence is an order passed on account of non-compliance of Section 13 (4) has been made, no order for striking out the defence can stand. Mr. Samdaria, learned Counsel for the plaintiff-petitioner, submitted that the order dated 16. 2. 1979 was an appealable order and no appeal has been filed, so that became final and even the principle of res judicata applies to interlocutary orders. In this connection suffice it to say that the first appellate court has extended the time, which extension has been upheld by this Court, so the order dated 16. 2. 1979 as a consequence thereof does not remain and so no question of applicability of res judicata arises. The finality of that order comes to an end when it is taken that Sub-section (4) of Section 13 of the Act has been complied by the tenant.

9. It is next urged by Shri Samdario that against the order dated 28. 8. 1981 passed by the Munsif, appeal was not competent under Section 22 of the Act. Mr. Samdaria contended that as a matter of fact the applications dated 16. 2 . 1979 and 19. 2. 1979 presented by the defendant were not maintainable. It may be pointed out that by moving all these applications, what the defendant actually intended was that the calculation of the amount of interest may be got clarified and if that is clarified, he could have sought extension of the time. When this fact was brought to the notice of the court that the interest has been deposited, on these applications time could be extended by the court and they should have been first heard and decided. As the defendant was unrepresented, they were not decided and the plaintiff 's application for striking out the defence was decided. Virtually they were applications under Section 13 (3) and (4) of the Act and on that basis it can be said that the order rejecting the application was passed under the provisions of the Act. Besides that, in my opinion, the first appellate court has done substantial justice between the parties and where substantial justice has been done, I am not prepared to interfere with the order of the first appellate court in exercise of revisional jurisdiction under Section 115, C. P. C. Reference in this connection may be made to a decision of the Orissa High Court in Bhubaneshwar Misra and Ors. v. Shakuntala Devi and Ors. AIR 1978 Orissa 37. In that case has it been observed that where substantial justice has been done by the appellate court, though in had no jurisdiction, the appellate order need not be interfered with under Section 115, C. P. C. The exercise of jurisdiction under Section 115, C. P. C, is discretionary and it should be exercised only to advance the cause of justice,

10. In the above view of the matter, I find no force in this revision petition.

11. No other point has been pressed before me.

12. In the result, the revision petition, being devoid offeree, is hereby dismissed with no order as to costs.


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