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Ram Saran and anr. Vs. Nathu Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 39/1983
Judge
Reported in1983WLN698
AppellantRam Saran and anr.
RespondentNathu Lal and ors.
DispositionPetition dismissed
Cases ReferredSiya Saran v. Sagar Mal Modi and Ors.
Excerpt:
.....(3) of section 13. the defendant-non-petitioners have taken the benefit of depositing the rent determined under section 13(3) upto 27th march, 1979, and have no right to urge now that the provisional rent ought to have been determined under section 7 of the act.;(d) rajasthan premises (control of rent & eviction) act, 1950 - section 13(5)--defence--striking out--rent for 2 months not deposited within prescribed period--rent subsequent month not deposited by 15th--held defence was rightly struck out for.;the defendant-petitioners having not paid or deposited the rent for the month of january, 1579, at all and having not paid the rent for the month of february, 1979, within 15 days of the succeeding month their defence against eviction has been rightly struck put under section..........act, 1950 (here in after referred to as 'the act') by order dated 10th jan., 1979. the provisional rent upto december, 1979 alongwith interest was determined amounting to rs. 2,868.75 it appears that subsequently the time was extended upto 27th march, 1979 for depositing the determined rent. there is no dispute that the amount so determined was deposited within the aforesaid period. the defendant-petitioners alongwith the aforesaid determined rent also deposited rent for the month of february, 1979. the plaintiff-non-petitioner submitted an application on 12th october, 1979 under section 13(5) of the act for striking off the defence of the petitioners against eviction on the ground that the petitioners had not paid the determined rent to the plaintiffs nor the monthly rent due till the.....
Judgment:

N.M. Kasliwal, J.

1. This revision is directed against the order of learned Additional District Judge No. 1, Jaipur City dated 1st September, 1962, confirming the order parsed by the Additional Munsif and Judicial Magistrate No. 3, Jaipur City, dated 12th May, 1981.

2. Brief facts leading to this revision are that the piaintiff-non-petitioners filed a suit for arrears of rent and ejectment against the defendant-petitioners from a shop situated at Bassi Sitarampura, Jhotwara Road Jaipur. The shop was let out to the petitioners on a monthly rent of Rs. 50/-. The grounds on which ejectment was sought were default in payment of rent for more than six months and reasonable and bonafide personal necessity of the plaintiff Nathu Lal. The petitioners filed a written statement and contested the suit and denied all the allegations made in the plaint. As regards the default in the payment of rent, it was submitted that the rent was paid to Gulab Chand father of the non-petitioners and the defendants have not committed any default in the payment of rent. It was also pleaded that in the year 1965, rent of the shop in question was Rs. 26/- per month and as such it was prayed that the standard rent of the shop in question be fixed at Rs. 26/- p.m. and provisional rent of the shop in question be also fixed accordingly.

3. The learned trial Court proceeded to fix the provisional rent under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (here in after referred to as 'the Act') by order dated 10th Jan., 1979. The provisional rent upto December, 1979 alongwith interest was determined amounting to Rs. 2,868.75 It appears that subsequently the time was extended upto 27th March, 1979 for depositing the determined rent. There is no dispute that the amount so determined was deposited within the aforesaid period. The defendant-petitioners alongwith the aforesaid determined rent also deposited rent for the month of February, 1979. The plaintiff-non-petitioner submitted an application on 12th October, 1979 under Section 13(5) of the Act for striking off the defence of the petitioners against eviction on the ground that the petitioners had not paid the determined rent to the plaintiffs nor the monthly rent due till the date of the application WES paid to the plaintiff non-petitioners, The petitioners submitted a reply and inter alia contended that the rent for the month of January, 1979, was paid to Gulab Chand father of the non-petitioners on 7th February, 1979, but the rent for the month of February, 79, when offered to him, he refused to accept on the advice of his counsel. In this view of the matter the rent for February, 1979 was also deposited along with the rent determined by the learned Trial Court under Section 13(3) of the Act. ft was also submitted that since the defendant-petitioner Siya Saran had fallen ill, the rent for February, 1979 could not be deposited before 15th, March, 1979, however, the same was deposited along with the determined rent and as such delay in depositing the rent for the month of February may be condoned. Learned trial Court held that so far as the rent determined under Section 13(3) of the Act was concerned, the same was deposited well within the extended time. As regards the rent for the month of January, 1979, the trial Court held that prima facie the payment of rent to Gulab Chand as alleged by the defendant petitioners was not held proved. As regards the payment of rent for the month of February, 1979, the trial Court held that no sufficient ground was made out for condoning the delay from 16th March, 1979 to 27th March, 1979 and in view of these circumstances the trial Court allowed the application under Section 13(5) of the Act and ordered to strike off the defence of the petitioners against eviction. The defendant-petitioners aggrieved against the order of the trial Court, filed an appeal, which was also dismissed by the learned Additional District Judge by his order dated 1st September, 1982. The first appellate Court also affirmed the findings of the trial court with regard to the rents for the months of January and February, 1979. Aggrieved against the judgment of both the lower Courts, the defendant-petitioners have filed the present revision.

4. It was contended by Mr. Rastogi, learned Counsel for the petitioners, that both the lower Courts committed an error of law in placing reliance on the report of the hand-writing expert for holding that the receipt dated 7th February, 1979 for payment of rent for the month of January, 1979, was not genuine. The plaintiffs hid not produced the hand-writing expert in evidence and merely the report of the hand-writing expert could not have been taken into consideration as a substantive piece of evidence. It was also argued that the courts below were wrong in comparing the signatures of Gulab Chand with his admitted signatures, and the role of an expert should not have been undertaken by the courts themselves. As regard the rent for the month of February, 1979, it was submitted that the two courts below seriously erred in not condoning the delay merely on the ground that even if Siya Saran defendant-petitioner was ill the other defendant Ramsaran could have deposited the rent.

5. It was also argued by Mr. Rastogi that the defendant petitioners had taken a plea in the written statement that standard rent should be fixed in the case of Rs. 26/- p.m., and in these circumstances the provisional rent sought to have been determined under Section 7 of the Act and not under Section 13(3) of the Act. It was also submitted that determination of provisional rent under Section 7 of the Act supersedes and has an over-riding effect on the determination of provisional rent under Section 13(3) of the Act. In view of these circumstances it is contended that there was no question of striking off the defence against eviction under Section 13(5) of the Act.

6. Section 13(4) of the Act reads as under:

13(4) 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. The tenant shall also 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).

7. It was further argued by Mr. Rastogi that according to the above provision the operation of the words 'shall also continue to deposit' shall come into effect only after the extended period allowed for deposit of the rent determined under Section 13(3) of the Act. The argument is that if the time for depositing the rent determined under Section 13(3) of the Act was extended up to 27 March, 1979, the liability to deposit the rent the months of January and February, 1979, can only commence after 27th March 1979, and not earlier. In the order dated 10th January 1979, the rent was determined upto December, 1978, and if time was extended for depositing the same upto 27th March 1979, tenant was entitled to deposit the monthly rent falling due for the months of January, February and March, 1979 upto 15th April 1979.

8. On the other hand, it was argued by Mr. Barhdar that the question whether the rent for the month of January 1979, was paid to Gulab Chand or not by receipt dated 7th February, 1979, was a question of fact and both the courts below having taken the view that the receipt was not genuine, cannot be interfered by this Court in the exercise of its revisional jurisdiction It was further submitted that the courts below were also competent and had jurisdiction to hold that no sufficient cause was made out for condoning the delay in the payment of rent for month of February, 1979 and there is no error of jurisdiction so as to call for any interference under Section 115 C.P.C.

9. It was also argued by Mr. Barhdar that there was no question of determining the provisional rent under Section 7 of the Act as it was not a suit filed under Section 6 of the Act and the Trial Court was right in determining the provisional rent under Section 13(3) of the Act. It was further submitted that in any case the argument now sought to be raised in the regard by learned Counsel for the petitioners was never raised before the trial Court or first appellate Court.

10. As regards the scope of Sub-section (4) of Section 13 of the Act it was argued by Mr. Barhdar that the two provisions of determination of rent under Section 13(3) and liability for depositing rent month by month by 15th of the succeeding month were totally independent to each other. As regards the arrears of rent determined under Section 13(3), the time may be extended to three months but it has nothing to do with the liability of the tenant to start depositing the monthly rent by the 15th of the next succeeding month. Reliance in this regard is placed on Suraj Narain v. Smt. Laxmi Devi 1981 RLW 487.

11. I have given my thoughtful consideration to the arguments advanced by learned Counsel for both the parties, and have perused the record. Both the courts below have found proved that the payment of rent for month of January, 1979, was not made to Gulab Chand and prima facie the receipt dated 7th February, 1979, was not genuine. The question, at the stage of deciding the application under Section 13(5) of the Act, is determined in a summary manner and the two courts below apart from relying on the report of the hand-writing expert have given many other reasons for taking the view that the payment of rent of January, 1979, to Gulab Chand was not held proved and this being a question of fact can hardly be interfered under the scope of Section 115 CPC. The courts below had jurisdiction to decide his question and even ah erroneous view on such question cannot be considered as an error of jurisdiction.

12. Similarly, the question whether there was sufficient cause made out by the petitioners for extending the period for payment of rent for February, 1979, from 16th March, 1979 to 27th March, 1979, was perfectly within the jurisdiction diction of the courts below and if they were not satisfied on the ground that another defendant Ram Saran could have deposited the rent, can by no stretch of imagination be said to bean error of jurisdiction. Thus, the inning of the courts below on the aforesaid point cannot be in referred in the exercise of revisional jurisdiction of this. Court.

13. As regards the contention of the learned Counsel for the petitioners that provisional rent in this case ought to have been determined under Section (4) of the Act and not under Section 13(3), suffice it to say that neither any prayer to this effect was made before the trial Court nor was it argued before the trial Court or the appellate Court and it cannot be permitted to be raised for the first time in revision before this Court. The petitioners themselves had sought extension of time for depositing the provisional rent determined on 10th January, 1979 under Section 13(3) of the Act. Sub-section (4) of Section 13 permits an extension of time not exceeding three month with regard to the amount determined by the Court under Sub-section (3). Time was extended upto 27th March, 1979 at the request of defendant provisions themselves and this extension of time not exceeding three months could only be done with regard to the amount determined under Sub-section (3) of Section 13. The defendant-non-petitioners have taken the benefit of depositing the rent determined under Section 13(3) upto 27th March, 1979, and have no right to urge now that the provisional rent ought to have been determined under Section 7 of the Act. It may be mentioned that the admit and scope of fixation of provisional rent under Section 7 is entirely different and there is no provision for extending the time upto 3 months as contemplated under Section 13(4) of the Act, The order in the present are was rightly passed under Section 13(3) of the Act and was treated to be under this provision by the defendant-petitioner themselves and having taken the benefit of extension of time also, there hardly arises any scope of any argument as raised by Mr. Rastogi for the first time in this Court.

14. Now I shall deal with the last submission made by Mr. Rastogi as regards the scope and ambit of Sub-section (4) of Section 13 of the Act. A Plain reading of the language of Sub-section (4) of Section 13 of the Act shows that it contains two independent provisions. The first part deals with the liability of the, tenant to deposit in court or pay to the landlord the amount determined by the court under, Sub-section (3) within 15 days from the date of such determination, or within such further time, not exceeding three months, as maybe extended by the Court. The intention of the legislature in laying down this provision is that as under Section 13(3) the tent is determined upto the end of the month previous to that in which such determination is made together with interest on such amount calculated @ 6 per cent per annum, this should be deposited or paid within 15 days from the date of such determination and in any case, not exceeding three months, as may be extended by the Court. As this amount will include arrears of rent and interest, a provision has been made to extend the time maximum upto three months. Then there is another prevision contained in Sub-section (4) of Section 13 of the Act putting a liability on the tenant to 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 15th of each succeeding month or within such further time not exceeding 15 days as may be extended by the court, at the monthly rate at which rent was determined by the court, under Sub-section (3), This means that for monthly rent, subsequent to the period upto which determination has been made under Section 13(3) which clearly lays dawn for determination of rent upto the end of the month previous to that in which such determination was made, the tenant is required to pay or deposit by the 15th of each, succeeding month. For this monthly rent the court is empowered to extend time not exceeding 15 days. Thus the period for extension of time in both the cases is different and there is no force in the contention of learned Counsel for the petitioners that the period for continuing to deposit the monthly rent should only commence after the expended period granted for depositing the rent determined under Section 13(3) of the Act. An anomalous situation arises if the above provision is interpreted in the manner contended by Mr. Rastogi. The extension in the period for making deposit or payment to the landlord for the amount determined under Sub-section (3) may extend upto three months. In that case the 15th of each succeeding month for the monthly rent subsequent to the period determined under Section 13(3) will make a confusing situation. Thus, I am clearly of the view that the meaning of the term 'shall also continue to deposit' used under Section 13(4) cannot be construed to come into operation after the extended period for depositing the rent determined under Sub-section (3). The liability of the tenant to deposit or pay the monthly rent subsequent to the period upto which date determination has been made under Sub-section (3) arises soon after the passing of the order under Sub-section. (3).

15. In the facts of the case as mentioned above the defendant-petitioners having not paid or deposited the rent for the month of January, 1979, at all and having not paid the rent for the month of February, 1979, within 15 days of the succeeding month their defence against eviction has been rightly struck out under Section 13(5) of the Act. I am fortified in my aforesaid view by the decision of G.M. Lodha J. in Suraj Narain's case (supra). The facts in that case were identical though the argument as raised before me for the interpretation of Section 13(4) was not raised, Lastly, it was contended by Mr. Rastogi that even if the order striking out the defence against eviction has been passed, it may be restricted only against the ground of eviction on account of default in payment of rent for more than six months as contemplated under Section 13(i)(a) of the Act and not in respect of other grounds for eviction i.e. for reasonable and bonafide personal necessity. Reliance is placed on Siya Saran v. Sagar Mal Modi and Ors. 1982 RLW 304. I see no force in this contention. In Siya Saran's case (supra) G.M. Lodh, J., has taken the view that if in the given case on account of the application of Section 13A the effect of Sub-section 3(1)(a) appeared and which in the eyes of law become non-existent for all intents and purposes within the entire pyramid falls flat on the floor. It was further held that once the grounds under Section 13(1)(a) disappeared and became non-existent on account of legislative mandate of Section 13A(b) then any order passed under Sub-sections (3), (4), (5) and (6) will not adversely effect the rights of the tenant. In the case in hind before me there is no question of taking benefit by the tenant under Section 13A has arisen, nor the ground of eviction under Section 13(1)(a) has come to an end. In view of these circumstances the above authority renders no assistance to the arguments of the learned Counsel for the petitioners.

16. In the result, I find no force in this revision and it is dismissed with no order as to costs.


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