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Sohanlal Vs. Smt. Chav and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 99 of 1979
Judge
Reported in1979WLN(UC)369
AppellantSohanlal
RespondentSmt. Chav and ors.
DispositionAppeal dismissed
Excerpt:
.....and shall proceed wish the hearing of the suit.;thus sub-section (4) of section 13 postulates a prior determination of the amount of rent to be deposited in court or paid to the landlord by the tenant, by the court under sub-section (3) of section 13 of the act. in the present case, the learned counsel for the appellant does not dispute that there has been no such determination by the court under sub-section (3) of section 13 of the act. thus the provisions of sub-section (4) and (5) of section 13 will have no application to the present case.;appeal dismissed - .....has filed this second appeal in this court.3. the first submission of shri s.n. vyas, the learned counsel for the appellant, is that the tenant, shri bheru singh, hid earlier taken the benefit of the provisions of section 13a of the act in an earlier suit which had been filed by the appellant against him for his eviction on the ground of default in the payment of rent and that the tenant cannot be permitted to take the benefit of section 12a of the act for a second time and, therefore, the suit filed by the appellant for the eviction of the respondent could not be dismissed on the basis of the provisions of section 13a of the act. in support of his aforesaid submission, the learned counsel for the appellant has placed reliance on the proviso to sub-section (6) of section 13 of.....
Judgment:

S.C. Agarwal, J.

1. This second appeal has been filed by the plaintiff landlord, Shri Sohanlal, against the judgment and decree dated. 19th February, 1979 passed by the District Judge, Pali, whereby the appeal filed by the appellant against the Judgment and decree dated 6th October, 1976 passed by Civil Judge, Pali, in Civil Suit No. 45 of 1975 was dismissed.

2. The Civil Suit aforesaid was filed by the appellant against the respondents for their eviction from the shop, which had been let out by the appellant to one Bheru Singh The respondents are the heirs and legal representatives of said Shri Bheru Singh. The said suit was filed on the ground of default in the payment of rent. Daring the pendency of the said suit, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (hereinafter referred to as the 'Act'), was amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975, which was promulgated by the Governor of Rajasthan on 29th September, 1975 The aforesaid Ordinance was subsequently replaced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976, (hereinafter referred to as the 'Amendment Act'), which was brought into force with effect from 29th September, 1975. As a result of the Amendment Act, Section 134 of the Act was amended so as to enable a tenant against whom a proceeding for eviction on the ground of non-payment of rent was pending on the date of the commencement of the Amending Ordinance, to move an application within 30 days from the date of commencement of the Amending Ordinance, in the Court in which proceeding is pending, to determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon and it was provide of that if the tenant deposited the amount so determined within the time fixed by the Court the proceeding shall be disposed as if the tenant had not committed any default. After the aforesaid amendment in Section ISA, the respondents moved an application before the Civil Judge under the amended provisions of Section 13A of the Act for determination of the amount of rent in arrears and the amount of interest thereon and the amount so determined by the Civil Judge was deposited by the respondents. After the aforesaid deposit of the amount determined under Section J3A of the Act, the Civil Judge, by his Judgment and decree dated 6th October, 1976 dismissed the suit of the appellant. Being aggrieved by the aforesaid Judgment and decree passed by the Civil Judge, the appellant filed an appeal, which was dismissed by the District Judge, Pali by his Judgment and decree dated 19th February, 1979. Thereafter, the appellant has filed this second appeal in this Court.

3. The first submission of Shri S.N. Vyas, the learned Counsel for the appellant, is that the tenant, Shri Bheru Singh, hid earlier taken the benefit of the provisions of Section 13A of the Act in an earlier suit which had been filed by the appellant against him for his eviction on the ground of default in the payment of rent and that the tenant cannot be permitted to take the benefit of Section 12A of the Act for a second time and, therefore, the suit filed by the appellant for the eviction of the respondent could not be dismissed on the basis of the provisions of Section 13A of the Act. In support of his aforesaid submission, the learned Counsel for the appellant has placed reliance on the proviso to Sub-section (6) of Section 13 of the Act, which lays down that a tenant shall not be entitled to any relief under Sub-section (6) of Section 13 of the Act if having obtained such benefit or benefits under Section 13A in respect of any such accommodation if be again makes a default in the payment of rent of that accommodation for sir months. The submission of the learned Counsel for the appellant is that the intention of the legislature in enacting the aforesaid proviso to Sub-section (6) of Section 13 of the Act is to disentitle a tenant, who had obtained the benefit, under Section 13A of the Act, to any further relief in case he commits default in the payment of rent for six months.

4. In my opinion, there is no merit in the aforesaid contention urged by the learned Counsel for the appellant. The scope of the proviso to Sub-section (6) of Section 13 of the Act is confined in, its application to the provisions of Sub-section (6) of Section 33 of the Act. The said proviso does not in any way curtail the scope and ambit of the provisions contained in Section 13A of the Act. A reference to the provisions of Section l3A of the Act shows that the said section starts with the words 'Notwithstanding anything to the contrary in this Act as it existed before the commencement of the mending Ordinance or in any other law'. The aforesaid non-obstante clause in Section 13A has the effect of giving the provisions of Section 13A, an over-riding effect over the other provisions of the Act as it existed before the commencement of the Amending Ordinance. A reference to the provisions of the Act, as it exited before the commencement of the Amending Ordinance, shows that in Sub-section (7) of Section 13 of the Act there was a proviso which was in the same terms as the proviso now contained in Sub-section (6) of Section 13 of the Act. The aforesaid proviso also provided that a tenant shall not be entitled to any relief under this sub-section, if having contained such benefit or benefits under Section 13 of the Act, in respect of any such accommodation if he again makes a default in the payment of Rent of that accommodation for six months. The effect of the non obstante clause in Section 13A would be that the provisions of Section 13A would override the provisions contained in the proviso to Sub-section (7) of Section 33 of the Act as it existed before the commencement of the Amending Ordinance, which means that the fact that a tenant had earlier obtained the benefit of Section 33A of the Act, will not stand in the way of his taking the benefit of provisions of Section 13A as amended by the Amending Act, if such a benefit is available to him under those provisions The provision of Section 13 A of the Act were amended by the Amendment Act with the object of giving an opportunity to the tenant, in relation pending suits and proceedings for ejectment on ground of defaults, to deposit the arrears of rent within thirty days as to provide that upon such deposit, no decree for ejectment will be passed on such ground against them. The provisions of Section 13A, as amended by the Amendment Act, do not support the limitation placed by the learned Counsel for the appellant so as to restrict the benefit conferred by the said provisions to only those tenants who have not taken the benefit of the said provision in earlier proceedings and to deny the benefit of the said provisions to a tenant who had taken such benefit in earlier proceedings. The first contention urged by the learned Counsel for the appellant, therefore, cannot be accepted.

5. The second contention urged by the learned Counsel for the appellant is that during the pendency of the appeal, filed by the appellant before the District Judge, the respondents had committed default in the payment of sent and as the appeal is a continuation of the suit, the defence of the respondents should have been struck out on account of their having committed default in the payment of rent In my opinion there is no merit in this contention. The only provision under which the defence can be struck out is that contained in Sub-section (5) of Section 13 of the Act which lays down that if a tenant fails to deposit or pay any amount referred to in Sub-section (4) on she 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. Sub-section (4) of Section 13 provides that 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 and that the tenant shall a/so 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). The Sub-section (4) of Section 13 postulates a prior determination of the amount of rent to be deposited in court or paid to the landlord by the tenant, by the Court under Sub-section (3) of Section 13 of the Act. in the present case, the learned Counsel for the appellant does not dispute that there has been no such determination by the court under Sub-section (3) of Section 13 of the Act. Thus the provisions of Sub-section (4) and (5) of Section 13 will have no application to the present case. The contention urged by the learned Counsel for the appellant that the defence of the respondent should have been struck out on account of default in the payment of rent by the respondent during the pendency of the appeal cannot, therefore, be accepted.

6. No other contention has been urged by the learned Counsel for the appellant.

7. In the result, the appeal is dismissed. There will be no order as to costs in this appeal.


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