S.K. Mal Lodha, J.
1. These two revision petitions by tenants against the same landlord-non-petitioner raise identical questions as they were heard together, it will be convenient to dispose them of by a common judgment S.B. Civil Revision No. 9 of 1981 is by the tenant Ratanlal against the order dated October 24, 1980 passed by the District Judge, Merta in Civil Misc. Appeal No. 4 of 1977, by which he, dismissed the appeal against the order dated February 4, 1977 of the Munsif, Nawa, who struck out the petitioner's defence against eviction.
2. A show cause notice was issued to the non-petitioner as to why the revision petition be not admitted. The record was sent for on April 2, 1981 The Court ordered that it would be proper that the revision petition may be heard along with S.B. Civil Revision Petition No 18 of 1981 Jethmal v. Ramlal. On May 4, 1981, it was ordered that this revision petition be listed for admission along with S.B. Civil Revision Petition No. 18 of 1981 That revision has been listed today.
3. Learned counsel for the parties stated that arguments may be heard and this revision petition may finally be disposed of.
4. I may first notice the facts giving rise to S.B. Civil Revision Petition No. 9 of 1981, Ratanlal v. Ramlal. The plaintiff non-petitioner instituted a suit for arrears of rent and ejectment against the petitioner in the court of Munsif, Nawa on January 15, 1976. The plaintiff sight ejectment on the ground mentioned in Section 13(1)(a) of the Rajasthan Premise (Control of Rent and Eviction) Act (No. XVII of 1950) (which will hereinafter for the sake of brevity, be referred to as 'the Act') i.e. on the ground of defaults in payment of monthly rent. After the service of the notice, the defendant petitioner submitted on application under Section 13(3) of the Act for determination of the amount to be deposited by him. The plaintiff submitted his reply on April 13, 1976. On August 2, 1976. the trial court determined the amount of rent and interest and directed the defendant to deposit it in court by August 17, 1976 On August 17, 1976, an application was moved on behalf of the defendant that time may be granted to him to deposit of the October 1, 1973 to October 31, 1974. The Court granted the time. On September 16, 1976, an application signed by the defendant and his counsel, was filed praying that one month's time may further be allowed for depositing the amount in pursuance of the order dated August 2, 1976. A reply was filed on that very day. Learned counsel for the plaintiff stated that he has on objection if one month's time is granted for depositing the amount. On October 15, 1976 the defendant filed an application along with the tender praying therein that period for depositing the rent may be extended and an order may be made for depositing the amount upto October 26, 1976. On October 25, 1976, a sum of Rs. 980/- was paid to the counsel for the plaintiff and it was accepted by him. On October 16, 1976, an application was moved on behalf of the plaintiff for striking out the defence against eviction on the ground that the defendant has committed default in payment of the rent for the months of August and September, 1976 in as much as the rent for the month of August was not deposited by September 15, 1976 and the rent for the month of September, 1976 was not deposited by October 15, 1976 and, therefore, defence against eviction may be struck out under Section 13(5) of the Act. The application was contested by the defendant by filing the reply on January 10, 1977. The learned Munsif, by his order dated February 4, 1977, held that the defendant has committed default in payment of monthly rent and, therefore, his defence against eviction is struck out. On appeal, the learned District Judge, concurred with the order of the learned Munsif and dismissed the appeal by his judgment dated October 24, 1980. Hence S.B. Civil Revision Petition No. 9 of 1981.
S.B. Civil Revision No. 18 of 1981
5. This revision is by defendant-tenant against the order dated October 24, 1980 of the District Judge, Merta, passed in Civil Appeal No. 6 of 1977, by which he maintained the order dated February 4, 1976 of the Munsif, Nawa striking out his defence against eviction. The plaintiff non petitioners brought a suit for rent and ejectment against the defendant. The plaintiff claimed ejectment on the ground that the defendant is a defaulter within the meaning of Section 13(1)(a) of the Act and, therefore, has rendered himself liable to eviction. The facts giving rise to this revision petition are substantially the same with those in S.B. Civil Revision Petition No. 9 of 1981 except with the variation in the amount of rent and interest, which was determined and paid to the learned counsel for the plaintiff on October 25, 1976. This revision was admitted on April 1, 1981.
6. I have heard Mr. K.C. Samdaria and Mr. B.M. Singhvi for the petitioners and Mr. R.R. Chacha for the non-petitioner and have gone through the record.
7. It is not in dispute in both the revision petitions that the defence against eviction was struck out on the ground that the defendant-tenants had failed to deposit the monthly rent of August, 1976 by September 15, 1976 as repuired by Section 13(4) of the Act. There is no dispute that the application was moved on behalf of the defendants on August 17, 1976 for grant of one month's time which was granted. On September 16, 1976, a second application was submitted for grant of further time of one month for depositing the amount determined, which was also granted as the learned counsel for the plaintiff had no objection to it. Subsequently, on October 15, 1976, another application was moved along with a tender stating that as the Presiding Officer of the Court was on leave upto October 24, 1976 and therefore, the the amount could not be deposited and as such the time may be extended upto October 24, 1976. On October 25, 1976, learned counsel for the plaintiff accepted the rent and passed a receipt. The rent for the month of September, 1976 could not be deposited by fifteenth of October, 1976 and a further period of fifteen days could be enlarged under Section 13(4) of the Act. The rent was accepted on October 25, 1976. On the basis of the above facts, learned counsel for the defendant-tenants contested that the default of failure of the tenants to pay or deposit monthly rent of August, 1976 by September 15, 1976 was waived by the plaintiff and the default was condonded and, therefore, the defence against eviction could not be struck out. This is contested by Mr. Chacha, learned counsel for the non-petitioner. He submitted that in the facts and circumstances of the case, which have been narrated above and about which there is no dispute, it cannot be said that there was waiver on the part of the plaintiff-learned in regard to the default committed by the defendants in payment of the monthly rent of August, 1976 as contemplated under Section 13(4) of the Act.
8. I have bestowed my most anxious and careful consideration to the rival contentions raised by the learned counsel for the parties.
9. The first and foremost but interesting question that crops up for consideration is whether by acceptance of the rent upto October 31, 1976 on October 25, 1976 by the plaintiff so counsel (as it was not under protest) amounts to waiver on the part of the plaintiff so as to disentitle him to claim that defendants's deforce against eviction under Section 13(5) of the Act, should be struck out.
10. Before I do so, it will be pertinent to refer to the relevant provisions of Section 13 of the Act.
11. Section 13(4) and (5) of the Act reads as under:
(4) The tenant shall deposit in court or pay to the landlord the amount determined in 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 and 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 subsection (4) 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.'
sh Kumar Pareek v. Smt. Somati Devi 1980 (2) RCJ 128 it was observed as follows:
A tenant is entitled to enlargement of time under Sub-section (4) of Section 13 of the Act only if he is able to satisfy the court that he was prevented by sufficient causes from making the deposit within the time statutorily allowed to him. If sufficient cause is not made out, the court will refuse to exercise its judicial discretion in favour of the defaulting tenant. The court must exercise the judicial discretion vested in it under Sub-section (4) of Section 13 according to the settled principles which have been laid down for the application of the provisions of Section 5 of the Limitation Act.
It was further observed as under:
There is no reason to import any unwarranted restriction in the provisions of Sub-section (4) of Section 13, namely, that the extensions of time could be granted only once, when there is no such restriction or prohibition contained in the aforesaid provisions. As a matter of fact, the aforesaid provisions are in the nature of beneficial legislation and a benevolent and liberal interpretation should be placed thereon subject only to the maximum period provided therein. Thus, the extension of time would be allowed under Sub-section (4) of Section 13 of the Act, either once or even on more than one occasions, but subject to the maximum limit of time prescribed by that Sub-section. But the tenant should show his bonafides while seeking extension of time and if, the court comes to the conclusion that the tenant has acted bona fide, it has a legal discretion to grant further enlargement of time to him subject to the maximum time limit prescribed by subsection (4) of Section 15 of the Act which in respect of deposit or payment of arrears of rent determined under Sub-section (3) of Section 13 of the Act is three months and 15 days, as observed above.
The time could thus, be enlarged.
12. Now, let me examine the term 'waiver'. In Sashashwar Nath v. I.T. Commr. : 35ITR190(SC) S.K. Das, J., stated as follows:
It has been said that 'waiver' is a trouble some term in the law. The generally accepted connotation is that to constitute 'waiver' there must be an intentional relinquishment of a known right or abandonment of a known existing legal right, or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and in an agreement to release or not assert a right, estoppel is a rule of evidence.
(Italics is mine)
According to Assoc. Hotels of India Ltd. v. Sardar Ranjeet Singh 1968 (2) SCJ 441 a waiver implies the voluntary relinquishment of a known right or promise, or express or implied excusing of performance.
13. Now, keeping in view the aforesaid connotation of the term 'waiver', a very important question that confronts me is whether waiver can be pleaded for non-compliance with Section. 13(4) of the Act.
14. In Jodhraj v. Soloman 1970 RLW 170 CM. Lodha, J., as he then was, examined Section 13(4) of the Act as it stood then. The learned Judge, after referring to Maritime Electric Co. Ltd. v. General Dairies Ltd. AIR 1937 PC 114 observed as under:
I am therefore, of the view that the defendant cannot successfully plead, waiver or estoppel against the non-compliance with the statutory provisions of Section 13(4) of the Act. There was a statutory obligation on the part of the defendant to have paid the rent month to month by fifteenth of the succeeding month if he wanted to take the benefit of section 13(4) & : 3SCR693 of the Act and since he failed to do so, he must face the consequences provided by section 13(6) of the Act.'
Jagat Narayan, C.J. in Bundu v. Smt. Hashmat 1972 WLN 19 while disagreeing with the view taken in Jodhraj case 1970 RLW 170, opined that the only such provisions of the Act as give protection to the tenant cannot be allowed to be waived by him, and that the provisions of the Act which confer benefit on the landlord can be waived by the latter. While considering Sections 1-A, 3 and 7 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, it was observed by their Lordships of the Supreme Court in Lachoo Mal v. Radhey Shyam : 3SCR693 as under:
The general principle is that every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public policy.
The right so accruing to the landlord is the benefit or advantage to him. It cannot be said to be against or opposed to public policy. I am, therefore, unhesitatingly of the opinion that a landlord can waive the benefit or advantage or a right that has accrued to him on account of the non-compliance of Section 13(4) of the Act. There is no prohibition under the Act for not waiving the right which has accrued to the landlord because of the failure on the part of the defendant to deposit the rent for August 1976 by September 15, 1976.
15. 'Waiver of forfeiture' has been provided in Section 112 of the Transfer of Property Act, (No. IV of 1882). It reads as under:
112. A forfeiture under Section 111, clause (g) is waived by accept tance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:
Provided that the lessor is aware that the forfeiture has been incurred;
Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.
The provisos appended to Section 112 of the T.P. Act are very stringent. The principle underlying the first proviso is that there can be no forfeiture as envisaged by Section 112 without knowledge. It is well settled that before it can be invoked, it must be shown that the lessor has notice or knowledge of the breach which has resulted in the forfeiture. The principles underlying Section 112 are useful for examining the argument that has been canvassed before me. For drawing the inference of waiver, or abandonment of the right that has accrued to the landlord-plaintiff, for the right breach committed by the defendant for not depositing the monthly rent of August, 1976 within time as envisaged by Section 13(4) of the Act, it is necessary whether in the facts and circumstances of the case there was an intentional relinquishment or abandoment of the plaintiff's right.
16. In S.B. Civil Revision No. 9 of 1981, the amount was determined under Section 13(3) of the Act on August 2, 1976 and the defendant was required to deposit it by August 17, 1976. On August 17, 1976, an application was moved by the defendant praying for one month's time. Material portion of the application may usefully be extracted. (Hindi)
On this application, on the same date, time was granted and the case was adjourned to September 16, 1976. On September 16, 1978 second application was moved on behalf of the defendant for granting him one month's time. Paras 1 and 2 of this application are: (Hindi)
Learned counsel for the plaintiff had no objection in enlarging of time and, therefore, the time was granted and the case was adjourned for arguments on the application for depositing the rent and framing of issues on October 15, 1976. On October 15, 1976, an application was moved by the learned counsel for the defendant. In that appilcation, extension of time for depositing the. amount was sought upto October 24, 1976. This application was accompanied by the tender. The amount was paid to the learned counsel for the plaintiff on October 25, 1976. The receipt merely recites that the learned counsel for the defendent had paid on October 25, 1976, an amount of Rs. 980/-.
17. A perusal of the order dated August 2, 1976 shows that only the amount of rent and interest was determined under Section 13(3) of the Act. There is no direction of the court for deposit of rent month by month as contemplated by under Section 13(4) of the Act. In fact no such direction was necessary. In the applications, which were filed on August 17, 1976 and September 16, 1976, reference to the order determining the amount by the court has been made. Learned counsel for the plaintiff had on objection for grant of time as incorporated in the order-sheet dated September 19, 1976. The question of waiver should have been decided keeping in view the meaning and connotation of the term 'waiver' and the above referred facts and circumstances under which rent for the month of August, 1976 was paid and accepted by the plaintiff's counsel on October 25, 1976. Neither the learned Munsif, nor the learned District Judge has examined the question of waiver of default in the light of that has been stated above. Before passing the order on the application of the plaintiff under Section 13(5) of the Act for striking out the defence against eviction, an application of judicial mind to the question whether the plaintiff has waived or abandoned the benefit or advantage of his right, which has accrued to him because of the failure of defendant to deposit the rent for the month of August, 1976 in time, is necessary and the order under Section 13(5) of the Act, which is a stringent provision, should not have been passed in the manner in which it has been done.
18. Section 15(7) of the Delhi Rent Control Act, 1958 is as under:
Section (7) if a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application
Section 15(7) of the aforesaid Delhi Act was examined m. Santosh Mehta v. Om Prakash : 3SCR325 wherein it was observed as under:
We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facilitative power. He may or may not strike out the tenant's defence. A judicial discretion has built in self restraint, has the scheme of the statute in mind, cannot ignore the conspectus of cirsumstances which are present in the case and has the brooding thought playing out a party's defence is an exceptional step, not a routine violation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, on the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort a punitive discretion of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation draws, the mist of misconception about matter of course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing traunt with the duly underlying the power.
Section 11-A of the Bihar Buildings (Lease Rent and Eviction) Control Act, 1947 was examined in Ranchhod v. Madhabji (9). Relevant portion of Section 11-A of Act is as under:
11A. Deposit of rent by tenants in suits for ejectment...The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and that Court may permit him to do SO.....
In that case, an order was made under Section 11-A of the Bihar Act directing the tenant to pay monthly rent by 15th of each subsequent month. The defendant made delay in payment of the monthly rent, but deposited the rent of several months The plaintiff withdrew the deposited rent and subsequently applied for striking out the defence on the ground that defendant has committed breach of the Court's order. The Division Bench of the Patna High Court held that the plaintiff is deemed to have waived his right 'J make such application accrued to under Section 11-A when be withdrew the amount (without any grievance). It was observed as follows:
The Court must take it that the right accrued to the plaintiff under the order Passed under Section 11-A to ask the Court for striking off the defence was waived by the plaintiff by withdrawing the rent for the months of January to April, 1970.
Ranchod's case AIR 1974 Pat 211 on which reliance was placed by the learned counsel for the petitioner is distinguishable in view of the words, which have already been extracted herein above. above.
In Kewal v. Sesmal 1981 RLW 77 while considering Section 13(5) of the Act, it was observed by me as follows:
It is clear that in the trial court, the plaintiff has not insisted on a right which accured to him on account of belated deposit of rent for the month of May 1970. There is, thus, implied relinquishment or foregoing of the right which could be enforced after the default in payment of rent for the month of May, 1973 was committed For failure to deposit the rent for the month of May, 1971 in time as contemplated by Secction 13(4) of the Act, the defence against eviction could not have been struck out.
In that case, one of the points that was canvassed before me was whether the the finding of the learned Additional Civil Judge that as the defendant-tenant had deposited the rent for the month of May, 1973 on July 13 1973, should have been deposited on July 2, 1973, the defendant has contravened the provisions of Section 13(4) of the Act and, therefore, his defence against eviction has been rightly struck out. In the facts and circumstances detailed in para 10 of the report, I recorded a finding that there was implied relinquishment or foregoing of the right which could be enforced after the default in payment of rent for the month of May, 1973 was committed. In the cases one hand the question that there is no waiver has not been determined Keeping in view the tests stated above regarding waiver of default in payment monthly rent under Section 13(4) of the Act.
19. The net result of the discussion made here in above is that the learned District Judge, while maintaining the order for striking out the rill against eviction has passed the order in irregular exercise of the jurisdiction and, therefore, the orders in both the revisions have to be set aside. the orders striking out defence if allowed to stand would cause irreparable injury to each of the tenant petitioner.
20. The result is that both the revision petitions are allowed and the orders dated October 24, 1980 of the learned District Judge, Merta in each of the revisions are set aside. The orders of the Munsif Nawa striking out the defence of each of the petitioners are also set aside. Both the cases are sent back to the learned Munsif for deciding the applications in each of the suits filed by the plaintiff under Section 13(5) of the Act afresh in the light of the observations made hereinabove and in accordance with law after giving the parties on opportunity of being heard. The parties to the suit will be free to lead oral evidence, if they so like, on the question of waiver of default in payment of monthly rent for the month of August, 1976. It is made clear that enquiry will be limited to the aforesaid question only. In the circumstances of the case, the parties shall bear their own costs of these revision petitions.