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Radhey Shyam Vs. Ram Sahai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 437 of 1974
Judge
Reported in1975WLN(UC)134
AppellantRadhey Shyam
RespondentRam Sahai and ors.
DispositionPetition allowed
Cases ReferredMartin & Harris (Pvt.) Ltd v. Prem Chand
Excerpt:
.....well within their proper bounds. the trial court, according to the learned counsel, was therefore, not justified in striking out the defence of the petitioner on account of failure to deposit one month's rent at the rate of rs. the learned munsiff as well as the additional district judge no......into consideration this prayer and passed the order as stated above. during the pendency of the suit rent for the month commencing from chet sudi 1 samwat 2028 to vesakh sudi 30 samwat 2028, which was to be paid by 13th april, 1972 was paid late by a few day i. e. on 8th may, 1972 conseqatently. on 28th september, 1972 the plaintiff non petitioner filed an application under section 13(6) of the act for striking out the defence on the ground that the defendant had committed default in paying month to month rent and, therefore, his defence wear liable to be struck out. in reply to this application the defendant petitioner pleaded that in the first place he had not committed default in payment of month to month rent during the pendency of the suit and in any case the amount of rs. 830/-.....
Judgment:

C.M. Lodha, J.

1. This is a writ petition under Articles 226 and 227 of the Constitution of India proving that the order of the learned Additional District Judge No. 3 Jaipur city, Jaipur dated 5th November, 1973 confirming the order of the learned Munsiff Magistrate No. 1, Jaipur City. Jaipur dated 2 February 1973 in civil suit No. 318 of 1969 be quashed. The facts giving rise to this petition may he briefly naratted as below.

2. The non-petitioner No. 1 Ram Sahai (who will hereinafter be refersed to as the non petitioner' filed a suit for ejectment against the petitioner In the court of the Munsiff, Jaipur East, Jaipur in respect of a shop situated in Jaipur on two grounds viz (1) that the. shop was required reasonably and bonafide by the con petitioner for his own use, and (2) that the petitioner had committed default in payment of rent and had then by incurred the liability to be evicted. The petitioner filed his written statement on 5.2.1969. He resisted the non-petitioner's suit and denied both the grounds relied upon by the non-petitioner for ejectment It may be relevant here to state that on the tame day he also made an application under Section 13(5) of the Rajasthan Premiees (Control of Rent and Evictionl Act, 1950 (which will hereinafter be referned to as 'the Act) stating that the rent for the period commencing from Asoj Sudi 1, Samwat 2024 to Bhadwa Sudil Samwat 2025 had been deposited under Section 19A of the Act, of which the plaintiff had been informed before the institution of the suit & the amount of Rs. 880/ thus deposited had already been ordered to be paid to the plaintiffs vide court's order 8.5.1972. It was further stated that the rent claimed by the plaintiff at the rate or Rs. 80/-per month was excessive and total he was not entitled to get more than Rs. 51/- per month. It was prayed that the amount of rent payable to the plaintiff may be determined so that the petitioner-defendant may pay up the same within the time fixed by the court This application was rejected by the court by its order dated 10th April, 1969, from which the petitioner filed appeal which was allowed by the Additional District Judge No. 1. Jaipur City, Jaipur and it was directed that the trial court shall deter mite the rent payables by the defendant to the plaintiff under Section 13(5) of the Act. In compliance of the order of the appellate court, learned Munsiff decided the petitioner's application under Section 13(5) of the Act. He fixed Rs. 80/- per month as provisional rent and held that the petitioner was liable to pay Rs. 3,040/- as rent for 33 month up to Kartik Sudi 1, Samwat 2027 and Rs. 100/-as interest and since Rs. 3060/ had already by been deposited, the petitioner may deposit the balance Rs. 80/ by 15th November, 1970 and should go on paving monthly rent by the 15th of the succeeding month. At this stag it may be mentioned that on the same day the petitioner had made an application to the court that the rent for 11 months i. e. Rs. 880/ had been deposited under Section 19A of the Act, but the plaintiff had not given allowance of the same and the detendant by way of abundant caution had deposited this rent over again It appears that the court did not take into consideration this prayer and passed the order as stated above. During the pendency of the suit rent for the month commencing from Chet Sudi 1 Samwat 2028 to Vesakh Sudi 30 Samwat 2028, which was to be paid by 13th April, 1972 was paid late by a few day i. e. on 8th May, 1972 conseqatently. on 28th September, 1972 the plaintiff non petitioner filed an application under Section 13(6) of the Act for striking out the defence on the ground that the defendant had committed default in paying month to month rent and, therefore, his defence wear liable to be struck out. In reply to this application the defendant petitioner pleaded that in the first place he had not committed default in payment of month to month rent during the pendency of the suit and in any case the amount of Rs. 830/- deposited by him under Section 19A of the Act was Dot taken into consideration. The learned Munsiff, by his order dated 2.2.1973 came to the conclusion that by video of the previous order dated 8th November, 1970 it was cleat that the deposit under Section 19A of the Act was not accepted by the court as valid and in this view of the matter he held that the defendant had committed default in paying monthly rent and in the result he struck out the defence against eviction. Aggrieved by the order of the learned Munsiff, the petitioner filed appeal under Section 22 of the Act which, too, was dismissed by the Aiditional District Judge No. 3, Jaipur City, Jaipur, by his order dated 5th November, 1973 (Annexure 2). These orders have been questioned by this writ petition. The petition has been opposed on behalf of the plaintiff non petitioners who has also filed a written reply to it.

3. Learned Counsel for the petitioner has urged that it is a fit case in which the impugned orders should he set aside in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution. In support of his contention he has relied upon Madhusudhan v. Sryam Dass . Kapoorchand Sanghi v. Narain Lal 1962 RLW 188. Karri Verkata Narasayyamma and Anr. v. Pentapati Venkata Rattamma and Anr. AIR 1957 A.P. 378. Calcutta Chemical Co. Ltd. and Anr. v. D.K Barman and Anr. : AIR1969Pat371 , Des Raj Kirpa Ram v. Punjab State , Josephy Santa Vincent v. Ambico Industries, Bombay and Ors. : AIR1969Bom49 , Surendra Nath Bibra v. Stephen Court Ltd. : [1966]3SCR458 , Ramlal Balabbai Nazar v. Ranchhodbhai Shankerbhai Patel and Ors. AIR 1968 Gujart 172, Jijabai Vithalrao Gajve v. Pathankhan and Ors. : [1971]2SCR1 and Rawat Hari Singh v. Sohanlal 1973 RLW 598.

4. In Rawat Hari Singh v. Sohanlal 1973 RLW 598 it was observed that 'the power conferred by the Constitution on the High Count under Article 227 of the Constitution is in the nature of a supervisory jurisdiction intended to keep the subordinate Tribunals well within their proper bounds.'

5. In Madhusudhan v. Shyam Dass , it was held that the powers of revision under Article 227 can be invoked in cases of grave dereliction of duty for which no other remedy is available and which have serious consequences if not remedied. It was a case where the Rent Controller had ignored the provisions of Section 6(2) of the Rent Control Order and it was held that he had committed an illegality in exercise of the jurisdiction by ignoring the relevant provisions of law. It was further observed that where grave injustice results by ignoring the provisions of law, it becomes the duty of this Court to interfere and to issue a proper direction to the Court or the tribunal to exercise its jurisdiction in accordance with the provisions of law.

6. Since learned Counsel for the non-petitioner did not question the maintainability of the petition under Article 227 of the Constitution but argued the case on merits, I do not wish to examine the authorities relied upon by the learned Counsel for the petitioner. Suffice it to say that if it is found the impugned orders had been passed by the Court in ignorance of material provisions of law or that grave injustice has been done to the petitioner, this Court would be justified in setting aside the impugned orders in exercise of its supervisory jurisdiction under Article 227 of the Constitution.

7. Two points were mainly pressed on behalf of the petitioner on merits. It has been argued, in the first instance, that admittedly the petitioner had deposited Rs. 880/ under Section 19A of the Act and while dealing with the question of striking out the defence on the ground of default in payment of monthly rent, the court should have taken into consideration this amount. The other point urged by the learned Counsel for the petitioner is that the petitioner had raided a contest in the suit that the non-petitioner is not entitled to get more than the standard rent i e. two and a half times of the basic rent which comes to Rs. 51/- per month and there was a specific issue on this point also. The trial court, according to the learned Counsel, was therefore, not justified in striking out the defence of the petitioner on account of failure to deposit one month's rent at the rate of Rs. 80/ p.m. It been argued that there was a specific issue on the point viz issue No. 6-- 'Whether the plaintiff is not entitled to get more than Rs. 51/- per month as rent'.

8. On the other band, learned Counsel for the non-petitioner has urged that the defendant petitioner's plea that he was entitled to get adjustment for the amount of Rs. 830/- deposited tinder Section 19A of the Act will be deemed to have been rejected by the order of the trial court dated 10th November, 1970. On the basis of the same order it has been urged by him that the court had fixed the monthly rent provisionally at Rs. 80/- and consequently the defendant was bound to deposit rent at this rate and it does not lie in his mouth to say that he was not liable to pay rent during the pendency of the suit at the rate of Rs. 80/- p.m. He has also argued that the plea for adjustment of rent paid under Section 19A of the Act could have been raised by the petitioner only on the first date of bearing and not subsequently.

9. It may be mentioned that the order dated 10th November, 1970 is silent on the point whether the defendant is entitled to get credit for Rs. 880/-deposited under Section 19A of the Act. I am, therefore, not prepared to accept the contention raised on behalf of the non-petitioner that the plea raised by the defendant that he was entitled to get credit for Rs. 880/- us disallowed. The learned Munsiff as well as the Additional District Judge No. 3 erred, in my opinion, in holding that this plea had been disallowed.

10. I may slate here that the fact that Rs. 880/- had been deposited by the petitioner under Section 19A of the Act and an order had been passed for payment of that amount to the non-petitioner was not challenged on behalf of the non-petitioner. The only question, therefore, which is to be decided in this connection is whether the petitioner is entitled to get consideration for this amount. Learned Counsel for both the parties relied upon a Full Bench decision of this Court reported in Martin & Harris (Pvt.) Ltd v. Prem Chand 1974 RLW 115. It was observed in the Full Bench case that 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 amount 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 receive 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.

11. As stated in earlier part of this judgment, the petitioner's application under Section 13(5) was treated by the appellate court as a proper one and the trial court was directed to decide this application on merits and determine the rent. The rent was actually, determined by the trial court under Section 13(5) of the Act. It is now, therefore, not open to the non-petitioner to argue that the application under Section 13(5) the Act was not a valid and proper one. There is also no denying the fact that in this application the petitioner did take the plea that he had deposited Rs. 880/. under Section 19A and the same had been ordered to be paid to the non-petitioner. Thus the factum of deposit under Section 19A has not been denied In these circumstances omission on the part of the court to direct adjustment of this amount cannot be construed as over-ruling the petitioner's plan for adjustment particularly when, in law, he is entitled to such an adjustment. It is not dented that if this deposit is taken into consideration, then the petitioner cannot be said to have committed default in payment of month to month rent during the pendency of the suit The fact that he deposited excess amount cannot operate as an estoppels against him from pleading adjustment of Rs. 880/-. Thus the plea for adjustment was raised by the petitioner at an appropriate stage and nothing has been pointed out to me as to why this should not be allowed except the technical objection that by its order dated 10th November, 1970 the court will be deemed to have over-ruled this adjustment by implication However, this plea has not found favour with me. I am, therefore, inclined to bold that the trial court committed a patent error in not allowing credit for the amount of Rs. 880/ to the petitioner at the time of deciding the non petitioner's application fot striking out the defence. I am further of opinion that by refusing adjustment of the amount of Rs. 880/- deposited under Section 19A, grave injustice has been caused to the petitioner as his defence has been struck out. The petitioner is, therefore, entitled to succeed on this point.

12. As regards the second objection raised on behalf of the petitioner that the rent should have been calculated at the rate of Rs. 51/- per month, reference may be made to the provisions of Section 13(4) of the Act, under which it is specifically provided that the tenant shall deposit an amount calculated at the rate at which it was last paid and shall thereafter continue to deposit or pay month to month rent or the sum equivalent to rent at that rate. Admittedly in this case the rate of rent at which it was last paid was Rs. 80/- per month and, therefore, during the pendency of the suit, he was bound to pay rent at the rate of Rs. 80/- per month. The mere fact that he had raised as issue regarding standard rent would not exempt him from paying monthly rent under Section 13(4) of the Act at the rate at which it was (sic) True it is that there is an issue in the suit whether the (sic) Hon'ble to pay rent at the rate of Rs. 51/- per month but that does not (sic).

In the result, I allow this petition and set aside the impugned (sic) by the defence of the defendant-petitioner against eviction was (sic) on the circumstances of the case, I make no order as to costs.

(sic) the file of the Civil Original suit be returned immediately to (sic) for proceeding according to law.


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