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Hukam Singh and anr. Vs. Shankar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 9 of 1974
Judge
Reported in1979WLN495
AppellantHukam Singh and anr.
RespondentShankar and ors.
DispositionPetition allowed
Cases ReferredIn Saligram v. Narottamlal and Ors.
Excerpt:
.....have been such material defects of procedure which bad affected the decision of the case.;the learned additional district judge has, therefore, exercised his jurisdiction illegally in as much as, he has acted in breach of provisions of section 13(1)(a) of the act and, i have therefore, no alternative but to interfere with the order under revision.;(b) rajasthan premises (control of rent and eviction) act, 1950 - section 13(1)(a)--default--eviction sought under section 13(1)(a) as rent is due for more than 6 months--held, addl. district judge acted illegally in holding that suit is not based on ground under section 13(1)(a).;it is quite apparent that rent for more than six months was due from the tenant and the eviction was sought under section 13(1)(a) of the act. i, am, therefore,..........dismissed the application under section 13(6) of the act being dissatisfied with the order of the learned additional district judge no. 2, jodhpur, dated september 10, 1973, this revision has been filed by the' plaintiffs as aforesaid.5. i have heard mr. chopra, learned counsel for the petitioners and mr. s.n. chhangani, learned counsel for the non-petitioners and have also carefully gone through the record of the case. the judge of the first appellate court has recorded the following findings:(1) that the plaintiffs, suit for eviction is not based on the ground mentioned in section 13(1)(a) and as such the provisions of section 13(5) and (6) of the act are not attracted;(2) that it was not necessary for the trial court to have determined the rent under section 13(5) of the act as it.....
Judgment:

S.K. Mal Lodha, J.

1. This is an application in revision under Section 115, CPC by the plaintiffs' against the order of the Additional District Judge, No. 1, Jodhpur, dated September 10, 1973, by which, fee reversed the order of the Additional Munsif. No. 1, Jodhpur, dated January 22, 1973.

2. A suit was instituted by Ramlal, Hukamsingh and Prithvisingh against Shankar for arrears of rent and ejectment in the court of Munsif City, Jodhpur on October 24, 1968. Ramlal and Hukamsingh have died and their legal representatives were brought on record. It was averred that certain apartments mentioned in para 2 of the plaint forming a portion of building situate at Station Road. Jodhpur, described in para 1 of the plaint were taken situate defendant. The rate of rent as stated was Rs. 65/- p.m. exclusive Rs. 40/- p.m. as charges for electricity and water. In para 5 of the plaint, it is alleged that the plaintiffs field a suit for ejectment in respect of premises in dispute against the defendant-non-petitioner, on November 12, 1954. One of the grounds for ejectment m that suit was that the defendant had committed default in payment of rent. One of issues was whether the defendant was defaulter. In that suit, while deciding issue No. 1, the Additional Munsiff held that the defendant was defaulter in payment of rent. However, during the pendency of the suit, the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) was amended by Act, No. XII of 1965, which came into force w.e.f. June 9, 1965. Thereupon, the defendant submitted an application under Section 13A and Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) (which will for the sake of brevity be referred here after as 'the Act') as amended by Act No. XII of 1965, stating that as he has already deposited the entire rent on the first day of hearing he should be given benefit of the aforesaid provisions of the Act. The Additional Munsif, No. 1, Jodhpur, gave benefit under Section 13(4) of the Act and dismissed the suit.

3. An appeal was preferred by the plaintiff against the judgment, which was also dismissed by the Addl. District Judge, No. 2, Jodhpur, on September 10, 1973 In this suit, the plaintiffs have alleged that the rent was due from the defendant from November 1, 1967 to July 31, 68 and as such the defendant has committed default in payment of rent. In para 10 of the plaint, it is mentioned that the amount of Rs. 715/- was due from the defendant on account of rent and damages or use and occupation and Rs. 220/- on account of electric and water charges, inclusive of hire of the sub-meter. However, plaintiffs had stated that defendant had deposited Rs. 765/- in the court under Section 19A, of the Act and this amount could be received by the plaintiffs After giving a credit of this amount, a sum of Rs. 170/- would only remain due from the defendant. It was clearly mentioned that the plaintiffs would withdraw the amount of Rs. 765/-, deposited by the defendant reserving their rights i.e. without prejudice to their night. As such Rs. 765/- were not claimed in the suit. The suit was registered on October 28 1968 and December 10, 1968 was fixed for filing of written statement. On December 10, 1968, on behalf of the tenant-defendant, Shri Satyanarain Advocate, filed a power and took time for filing the written statement the next date fixed for filing the written statement was January 9, 1969 Even on that date, the time was sought for filing the written statement and it was filed on January 13, 1969. The defendant did not pay or deposit any amount under Section 13(3) of the Act. He did not make any application under Section 13(4). On December 11, 1972 an application was submitted on behalf of the plaintiffs that the defendant had not deposited the entire lent on the first day of hearing i.e. December 10, 1968 and that he (tenant) has not raised any dispute under Section 13(5) of the Act It was, therefore, prayed that has defence against eviction may be struck out. This is application under Section 13(6) was resisted by the defendant by filing a reply dated December 14, 1972 on various grounds. The learned Munsif by his order dated January 2, 1973 struck out defence against the eviction

4. Being aggrieved by the order of the Additional Munsif, No. 1 jodhpur, dated January 2, 1973, the defendant went in appeal under Section 22 of the Act. The Additional District Judge, No. 2, Jodhpur accepted the appeal and set aside the order dated January 2, 1973 striking out the defence against eviction and dismissed the application under Section 13(6) of the Act Being dissatisfied with the order of the learned Additional District Judge No. 2, Jodhpur, dated September 10, 1973, this revision has been filed by the' plaintiffs as aforesaid.

5. I have heard Mr. Chopra, learned Counsel for the petitioners and Mr. S.N. Chhangani, learned Counsel for the non-petitioners and have also carefully gone through the record of the case. The Judge of the first appellate court has recorded the following findings:

(1) that the plaintiffs, suit for eviction is not based on the ground mentioned in Section 13(1)(a) and as such the provisions of Section 13(5) and (6) of the Act are not attracted;

(2) that it was not necessary for the trial court to have determined the rent under Section 13(5) of the Act as it stood then, as no application under Section 13(5) of the Act was filed on the first day of hearing.

6. Learned Counsel appearing on behalf of the petitioners urged that the learned Additional District Judge has exercised his jurisdiction illegally when he held that the suit was not based on the ground, mentioned in Section 13(1)(a) of the Act of the other hand, Mr. Chhangani, learned Counsel for the defendant (tenant)- non-petitioner submitted that six months it was not claimed in the suit, and, therefore, Section 13(1)(a) is not attracted. In this connection, he invited my attention to para 10 of the plaint, wherein, the plaintiffs have averred that total Rs. 935/- were due from the defendant and as he had deposited a sum of Rs. 765/- a sum of Rs. 170/- is outstandings. On the basis of these averments, the learned Counsel contended that on the date of institution of the suit, two months rent amounting to Rs. 170/- was only due. He, therefore, urged to be as six months rent was not claimed in the suit, Section 13(1)(a) is not attracted and as such the provisions of Section 13(4), (5) and (6) as they stood then, could not be invoked. Mr. Chhangani, learned Counsel for the tenant further submitted that as the plaintiffs had voluntarily, adjusted Rs. 765/- which were deposited by the tenant under Section 19A of the Act, there is waiver on the part of the landlords so far as defaults in payment of rent are concerned. Learned Counsel further urged that in view of the decision of the Full Bench in Harakchand v. State of Rajasthan 1970 RLW 320, the revision is not maintainable.

7. In view of the submissions made by the learned Counsel for the parties, the first question that crops to for consideration is whether the revision against the impugned order is maintainable. Section 22 of the Act deals with Appeal and Revision. It also provides for forums far revision or appeal. Proviso to Section 22(2) lays down that nothing contained in Section 22(1) shall affect the powers of the High Court for Rajasthan in revision. The conditions for exercising the power of revision are those, which are provided in Section 115, CPC. If, one of the conditions laid down in Section 115, CPC is satisfied, the High Court has been empowered to interfere in revision against the appellate order passed under Section 22(1) of the Act. It is under Clause (c) of Section 115, CPC that the High Court can interfere with the order of the Subordinate Court, in which no appeal lies there to, if the Subordinate court exercises its jurisdiction illegally or with material irregularity. It is well settled by the various decisions of their lorderships of the Supreme Court, that the words 'illegally' and 'with material irregularity' as used in Clause (c) of Section 115, CPC do not cover the errors of fact or of law In Harakchand's case 1970 RLW 320, this Court has laid down that illegality or material irregularity must have occurred in the manner, in which the jurisdiction of the Sub-ordinate court is exercised i.e. the manner in which the case is heard or decided. Under Clause(c) of Section 115, CPC before interfering with an order, it will have to be examined whether it has been passed in breach of the provisions of law or there have been such material defects of procedure which had affected the decision of the case. The next point that calls for determination is whether the suit was based en the ground of default in payment of rent as envisaged by Section 13(1)(a) of the Act. Section 13(1)(a) is as under:

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 arid willing to pay rent therefor 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, or ... ... ... ...

Default in payment of six months rent he abound for eviction. If the tenant does nut pay or tender the amount of rent due from him for six months he renders himself liable to eviction. The words used in Clause (a) of Section 13(1) of the Act, are 'neither paid nor tendered'. It is thus clear that tenant has not made payment of rent for six months or when it fell due or If has not tendered rent for six months, he would be liable to be evicted. The plaintiffs have averred in para 10 of the plaint that the rent from 1.11.1967 to 23.9.1908 and damages for use arid occupation from 24.9.1968 to 30.9.1918 at the rate of Rs. 15/- per month i.e. Rs. 715/- are due from the tenant. Thus as per averments made in para 10 of the plaint, lent for more six months' has been stated to be due horn the tenant. The tenant has submitted an application under Section 19A, on August 21 1968 and deposited Rs. 765/-in the court and after giving credit of this amount Rs. 170/- remained outstanding. The plaintiffs have mentioned that they would withdraw the amount without prejudice to their right. The words used in para 10 of the plaint are gDdks dks lqjf{kr j[krs gqos mBkosxks. Here reference may be made in Martin & Horns (P) Ltd. v. Premchand 1974 RLW 115 the Full Bench answered the second question referred to it as under:

In case a tenant has deposited rent under Section 19A of the Act he would not be required to make a fresh deposit of the same mount in Court under Sub-section (4) of Section 13 of the Act But such a tenant must raise a dispute in respect thereof, on the first day of hearing of the suit, under Sub-section (5) of Section 13 of the Act and, in that event, the Court would allow the tenant an adjustment of the amount so deposited by him while calculating the amount payable to the landlord under the aforesaid provision and would direct the landlord to payment of the amount already in deposit under Section 19A of the Act and also direct the tenant to make payment of the remaining amount, if any, to the landlord. In this view of the matter, Saligram's case has been correctly decided.

In Saligram v. Narottamlal and Ors. 1971 WLN 118. THE following question was referred to the Division. Bench for answer.

Whether 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 (6), the defence against eviction cannot be struck out under Sub-section (6) for non-compliance of Sub-section (4) in a case where a tenant takes the plea that he has not committed default in payment of rent as comtemplated by Section 13, Sub-section (1)(a) of the Act.

Paras 4 and 5 of the report may usefully be quoted-

We are of the opinion that all that is required for the applicability of Sub-section (4) is that the suit for eviction must have been filed on the ground set forth in Clause (h) of Sub-section (1) with or without any of the other grounds referred to in that sub-section. A suit is-said to be based on a particular ground if the plaint contains an allegation that the ground subsists. Sub-section (4) would therefore be applicable even in a case where in the plaint a false allegation is made that the tenant has committed default as envisaged in Clause (a) of Sub-section 13(1).

5. If the tenant has actually paid the full amount of rent to the landlord he can raise a dispute about iron the first day of bearing and the court shall determine under Sub-section (5) of Section (5) whether the allegation made by the tenant is true.

It was held in Saligram's case 1971 WLN 118 that if the tenant has made a deposit under Section 19A, he can point this out in his application made on the first day of hearing and the court can direct the payment of rent already deposited under Section 19A, to the land lord and that the tenant will not be required to pay over again the amount of tent which he has already deposited Under Section 19A.

8. From paras 8 and 10 of the plaint, it is quite apparent that rent for more than six months was due from the tenant and the eviction was sought under Section 13(1)(a) of the Act. I, am therefore of the opinion that the learned Additional District Judge has acted illegally when he found that the suit is not based on the ground mentioned in Section (1)(a) of the Act Reference of deposit by the tenant under Section 19A and the averment has the plaintiffs would withdraw the amount so deposited, without prejudice to their fights does not lead to the inference that it is not based under Section 13(1)(a). No application was submitted on the, first day of heaving, on behalf of the defendant raising any dispute under Section 13(5) of the Act, so as to require determination. The provisions is of Section 15(4) and 13(5) as they stood then could be invoked.

9. Now, I deal with the point of waiver raised by the learned Counsel for the tenant. Section 19-D of the Act, reads as under:

Section 19D Waiver of default. When there is no proceeding pending in the court for the recovery of possession of premises, the acceptance of rent in respect of the period of default. In payment of rent, by the landlord from the tenant shall operate as a waiver of such default.

According to this section, any acceptance of rent by the landlord in respect of a period of default in payment of rent, operates as waiver provided there are no proceedings pending in the court. In other words, there is only one limitation to operate as waiver, that there should not be any proceedings pending in the court for recovery of the possession of the premises. Section 19D applies to waivers of defaults in payment of rent due before the institution of the suit. There was no acceptance of rent in respect of period of default prior to the suit and as such averments made in para 10 of the plaint cannot operate as waiver under Section 19-D of the Act. The contention relating to waiver is, therefore, repelled.

10. The learned Additional District Judge has, therefore, exercised be is jurisdiction illegally in as much as, he has acted in breach of the provisions of Section 13(1)(a) of the Act and, I have; therefore, no alternative but to interfere, with, the order under revision.

11. The result of the, above discussion is that the suit of the plaintiffs was based on the ground mentioned in Section 13(1)(a) of the Act and as a necessary consequence it follows that Section 13(4), (5) and (6) are attracted in this case. Admittedly, the defendant had neither taken steps under Section 13(4) nor, raised any dispute under Section 13(5) and, therefore, in accordance with Section 13(6), his defence against eviction is liable to be struck out. The trial court was, therefore, right when it struck out his defence against eviction.

12. The result is that the revision application is allowed and the order of the learned Additional District Judge, No. 2, Jodhpur, dated September 10, 1973 is set aside and that of the Additional Munsif, No. 1, Jodhpur, dated January 22, 1973 is restored.

13. In the circumstances of this case, there will be no order as to casts.


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