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Babulal Vs. Mukan Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 154/1976
Judge
Reported in1977WLN(UC)34
AppellantBabulal
RespondentMukan Chand and ors.
DispositionAppeal dismissed
Cases ReferredSalig Ram v. Narottam Lal
Excerpt:
.....rot cross examined on tender of rent fey defendant--evidence establishing default.;the evidence on record conclusively establishes the finding that default has been committed; especially when the plaintiff was ret cress-examined by the defendants about the question of tender of rent, and that no data or details of rent was given in the written statement.;appeal dismissed - - the learned counsel for the defendants, however, did not press this application dated february 27, 1974 as would be evident from the proceedings dated july 1, 1974. the learned trial court struck out the defence of the defendant by its order dated august 13, 1974 as the defendant failed to pay the arrears of rent, interest and cost on the first date of hearing, i. both the judges of the court below have..........of the plaintiff, and that he is willing to pay the rent which is legally due against him. the learned counsel for the defendants, however, did not press this application dated february 27, 1974 as would be evident from the proceedings dated july 1, 1974. the learned trial court struck out the defence of the defendant by its order dated august 13, 1974 as the defendant failed to pay the arrears of rent, interest and cost on the first date of hearing, i.e. september 25, 1973. the learned trial court decreed the plaintiff's suit on may 20, 1975 on the ground of non payment of rent only. the issue of sub-letting a portion, of the shop in question was also decided in favour of the plaintiff. the defendants, however, feeling aggrieved by the judgment and decree of the trial court filed an.....
Judgment:

P.D. Kudal, J.

1. This is a second appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by, the learned Additional District Judge, Sirohi on April 30, 1976.

2. The facts of the case, in brief, are that Mukan Chand filed a suit against the defendants Babulal and Ruparam for arrears of rent and ejectment of the defendants from a shop situated in Sumerpur as described in para 1 of the plaint It was contended by the plaintiff that according to the rent-rote executed on December 4, 1969 the rate of rent was Rs. 61/- per month. It was also contended that the defendant No. 2 has not paid the arrears, of rent from December 4, 1971 and that a portion of the shop in question has been sub-let to the defendant No. 2. Thus, the ejectment was claimed on the ground of default and sub-letting.

3. The defendants, however, denied the allegations in the plaint. It was contended that the defendants are ready any willing to pay the arrears of rent upto the date of framing of the issues. It was also contended that the defendant No. 2 is only a partner in the suit premises and that the portion of the shop in question was never sub-let to the defendant No. 2. The defendant also moved an application on February 27, 1974 purporting to be one, under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred to as the Act). In this application the defendant, Babulal, contended that he admits that he is the tenant of the plaintiff, and that he is willing to pay the rent which is legally due against him. The learned Counsel for the defendants, however, did not press this application dated February 27, 1974 as would be evident from the proceedings dated July 1, 1974. The learned trial Court struck out the defence of the defendant by its Order dated August 13, 1974 as the defendant failed to pay the arrears of rent, interest and cost on the first date of hearing, i.e. September 25, 1973. The learned trial Court decreed the plaintiff's suit on May 20, 1975 on the ground of non payment of rent only. The issue of sub-letting a portion, of the shop in question was also decided in favour of the plaintiff. The defendants, however, feeling aggrieved by the judgment and decree of the trial Court filed an appeal before the learned Additional District Judge, Sirohi. The appeal was also dismissed on April 30, 1976. The defendants feeling aggrieved against the judgment and decree of the learned Additional District Judge, Sirohi have now filed this second appeal before this Court. The defendant-appellant has also filed an application under Order 6, Rule 17, CPC, seeking permission of this Court to amend the written statement. It seems that the application under Order 6, Rule 17, CPC was also filed along with the appeal, but no notice was issued of this application to the respondent Mukan Chand, The learned Counsel for Mukan Chand during the course of arguments of the appeal, however, tools notice of this application also, and contended that the application for amendment has been filed at an extremely belated stage, and that the amendment sought for should not be allowed as it is likely to change the nature of the de fence taken by the defendants, and would ultimately result in setting up a new and inconsistent case from the original one as set up by the defendants. The learned Counsel for the defendant-appellant, however, contended that the application for amendment could be moved even at this stage and that the amendment of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 has been effected by the Ordinance No. 26 of 1975 issued on September 29, 1975. It was contended that the issuance of this Ordinance has made available further grounds of defence against eviction, and that under such circumstances, an application for amendment could be moved.

4. The application for amendment has primarily been moved with a view to cover the default which has been committed by the defendant, Babu Lal, in payment of rent, and in not depositing the arrears of rent, interest and cost on the first date of hearing. The first date of hearing was May 29, 1973, while the defendant claimed that he is ready and willing to pay the rent upto the date when the issues are framed. The issues were framed on February 29, 1974. Section 6 of the Act lays down the procedure for fixation of standard rent. Section 6(5) lays down the date from which the standard rent would be liable to be paid, if so determined by the Court. The proviso to Sub-section (5) of Section 6 lays down that in case of a tenant who institutes a suit under this section after the expiration of six months from the commencement of ills tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit or such later date as the Court may in the circumstances of the case deem reasonable. The defendants in their written statements did not take the plea that the rent, as agreed to between them and the landlord, was in any way excessive, and that they desired that the standard rent was taken for the first time on July 5, 1976 when the suit was instituted as early as on August 23, 1973. The permission to amend the written Statement, if granted at this stage, would mean permitting the defendants to set up entirely a new case which would be inconsistent with the case with which they came to the Court of law. The proposed amendment of the written statement, if allowed at this stage, would also lead to multiplicity of proceedings. As the question of standard rent was not agitated from the very beginning the plea for fixation of standard rent is still open to the defendant-appellant, and, if he so chooses, he may file a suit under Section 6 of the Act. The application for amendment of the pleadings is hereby dismissed as being without any force.

5. The learned Counsel for the defendant-appellant has strenuously argued that the allegations contained in the plaint do not fulfil the minimum requirements of Section 13(1)(a) of the Act, wherein it has been stated that the tenant has neither tendered nor paid the amount of rent due from him for six months. The contention, of the learned Counsel for the defendant appellant is that in para 4 of the plaint it has not been stated that the rent was tendered by the defendant, though, it has been stated that the rent was not paid. The contention of the learned Counsel is that in view of the law laid down in Rajendra Kumar v. Jamna Das 1975 WLN 15, there should have been a specific mention in the plaint that not only the rent has not been paid, but it was not even tendered.

6. The learned Counsel for the plaintiff-respondents has contended that there is a pre-requisite condition under Section 13 of the Act that the tenant was ready and willing to pay the rent, and if this condition is fulfilled then the question would arise whether rent was paid or tendered. The learned Counsel also drew the attention of the Court to the plea in the written statement that the tenant would pay the rent when the issues are framed. Attention was also invited to the application under Section 19A wherein the tenant had shown his willingness to deposit the legal rent, at the time of framing of the issues. The learned Counsel for the plaintiffs-respondents also contended that it was not necessary to have specifically pleaded in so many words that the rent was neither paid nor tendered. His contention is that if the plaintiff alleges that the rent has not been paid then it was for the defendants to have established that he tendered the rent which was refused by the plaintiff. On the contrary, the learned Counsel for the defendant-appellant contends that as the defence of the defendant was wrongly struck out he was precluded from establishing the fact that rent was tendered and refused by the plaintiff-landlord. The learned Counsel for the defendant-appellant also drew the -attention of the Court to the averments in the written statement that rent was tendered, but it was not accepted by the plaintiff.

7. The learned Counsel for the defendant-appellant basically relies on the following observations in the case of Rajendrakumar v. Jomnadas 1975 WLN 15:

15. There is no controversy between the learned Counsel that Section 13(4) will be applicable only when a suit for eviction is based on the ground set forth in Clause (a) to Sub-section (1) of Section 13. The requirement of Section 13(4) has been held to be mandatory. It means that if the case of the plaintiff is based on default as contained in Section 13(1)(a) and the tenant wants to avail of the protection available under Section 13(4), he must deposit rent with interest on the first date of hearing, if there is no contest with regard to the rate of rent and the amount of rent payable by the tenant. It has been so held by a bench decision of this Court in Salig Ram v. Narottam Lal (4) In the event deposit is not made as required by Section 13(4) of the Act, the penalty prescribed under Section 13(6) of the Act necessarily follows. Thus it is clear that violation of the provisions of Section 13(4) means a penalty is provided under Section 13(6) of the Act. The fundamental principle of construction is that when a statute creates an offence or imposes a penalty the law must be construed strictly, and for that matter the pleadings of the parties must also be construed strictly. I have discussed the point and I am clear in my mind that the plaintiff's suit is based only on the ground of personal necessity and not on the basis of default as contemplated by Section 13(1)(a) of the Act. Both the judges of the court below have failed to determine the question if the suit was based on the ground of default. Without deciding the controversy it was assumed by each one of them that the suit was based on default and Section 13(4) was applicable.

8. Sub-section (4) of Section 13 affords an opportunity to the tenant to-deposit the arrears of rent, interest and cost of the suit on the first date of hearing, and to pay the rent for each mouth before the 15th of the following month. The plea taken by the defendant in the written statement that the rent was tendered, but was refused by the plaintiff, appears to be totally a fake one, because no dates and particulars of any tender of the rent have been given. It was also contended that as the defence was struck out, the tenant-defendant did not get an opportunity to lead evidence to show that the rent was actually tendered, but was refused by the plaintiff.

9. Both the learned lower Courts have held the plaintiff has committed the default and is liable to be ejected.

10. Having given my most anxious consideration to the respective contentions of the learned Counsel for the parties, I have no hesitation in holding that the evidence on record conclusively establishes the finding that default has been committed, especially when the plaintiff was not cross-examined by the defendants is about the question of tender of rent, and that ho data or details of tendering of rent was given in the written statement.

11. For the reasons stated above, there is no force in this appeal which is hereby dismissed. Looking to the circumstances of the case the costs would be easy

12. The defendant-tenant is, however, allowed six months time to vacate the premises provided he pays the entire arrears of rent with all costs of the suit to the landlord within a month and goes on regularly paying monthly rent before the 15th each succeeding month. If the defendant-appellant commits default of any of the conditions then the period of six-months granted to him, would lapse automatically and he would be liable to be evicted forthwith.


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