G.M. Lodha, J.
1. This is a tenant's second appeal in a suit for eviction passed on the ground of default.
2. According to the plaintiff, the defendant had not paid the rent from 1st January, 1974, at the rate of Rs. 70/- per month. The trial-court first passed an order under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It is admitted that the rent as determined was not deposited in the trial-court and the monthly rent was also not paid or deposited there-after. Consequently, the defence was stuck-off and the decree was passed after recording a finding that the defendant is a defaulter.
3. In appeal, the decree for eviction was maintained but the rent was determined at the rate of Rs. 63/- per month.
4. On the above finding of the appellate court, Mr. Karnani, learned Counsel for the appellant submits that, since the order under Section 13 Clause (3) was passed holding that the monthly rent was Rs. 70/- and this ha; been found to be incorrect and that there was no proper determination of rent, therefore, that order was ab-initio void. As a legal and logical corollary to it, the decree can not be allowed, argued Mr. Karnani. He pointed out that under Sub-section (3) of Section 13 of the Act, the calculation is to be done at the rate of rent at which rate it was last paid or payable. Last paid or payable rate of rent is the essence and crux of the matter and the bedrock on which the determination under Sub-clause (3) of Section 13 can be dons. Since now as per the judgment of the Appellate court, the last paid or payable monthly rent was Rs. 63/- and not Rs. 70/ the entire fabric on which the decree is based is false, argued Mr. Karnani. According to him now this Court should remand the case directing trial court to pass an order under Sub-section (4) of Section 13 determining the last paid monthly rent as Rs. 63/- and then allow an opportunity to deposit the same.
5. The second limb of submission of Mr. Karnani, is that since the plaintiff has come out with a false case of Rs. 70/- for month with effect from earlier date, the suit for eviction should be dismissed as per the decision of Mahar Chand v. Tilak Raj A.I.R. 1982 H & P 144.
6. The above submissions have been controverted by Mr. Surana, appearing for the respondent.
7. During the course of arguments, I adjourned the case permitting the learned Counsel of both the parties to find out whether they can provide assistance or guidance to this Court by citation of decision of any High Court. Both of them expressed their in-ability to cite any decision which can have, direct or indirect bearing on this issue in dispute.
8. I have, therefore, carefully examined the provisions of Section 13 of the Act. Sub-clause (a) of Section 13(1) of mentions the grounds for eviction on default of the tenant in paying re it or tendering rent for 6 months but Sub-section (3) provides protection against eviction on the basis of default by permitting tenant to deposit the rent in court along with costs and interest and continue to pay the rent every month. Sub-clause (6) supports the protective umbrella by restrictive mandate that no decree for eviction on the ground of default shall be passed, if a tenant makes deposit or payment as required by Sub-section (4).
9. But if a tenant insists and persists on default even after getting an opportunity after filing of suit then Sub-section (5) comes into play and the defence against eviction is to be struck-out.
10. Sub-section (3) of Section 13 contemplates provisional determination of the amount of the rent. This provisional calculation is to be made at the rate of rent at which it was last paid or was payable. This provisional determination and payment in pursuance of that is subject to Sub-section (8) of Section 13 which provides for final adjustment at the time of passing decree.
11. The relevant Sub-section (a)(1) of Section 13 of the Act, reads as under:
Section 13 : Eviction of tenant : (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant' (XXX) so long as he is ready and willing to pay rent therefor, to the full extent allowable by the Act, unless it is satisfied-
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or
Sub-section (7) & (8) of Section 13 reads as under:
(7) If in any suit referred to in Sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit.
(8) In case at the time of decision of the suit:
(a) The court finds that the amount of rent provisionally determined by it under Sub-section (3) and deposited in court or paid to the landlord under Sub-section (4) is less than the amount of rent finally decised as payable by the tenant, the court shall pass a decree for the balance amount against the tenant.
(b) The court finds that the amount determined and deposited or paid as aforesaid (is) in excess of the amount of rent finally decided as payable by the tenant, the court shall, in the event of passing a decree for eviction against the tenant on ground other than that set forth in Clause (a) of Sub-section (1) also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction it shall direct in the decree that such excess amount will be adjusted by the landlord against further rent payable by the tenant.
12. The crucial question which requires consideration is as to whether provisional determination of the amount of rent is to be treated of limited amount for the months for which the arrears are alleged but this is to be done after summary, tentative or provisional adjudication of the rate at which rate it was last paid or was payable, in case the rate of rent is in dispute. In other words, the provisional determination can only be done for the period of arrears and till final decision is given at the time of decree.
13. On a thoughtful consideration of the various facts of the above interpretation, I have coma to the conclusion that Section 13 and its sub-section particularly Sub-section (1)(3)(7) & (8) clearly go to show that the calculation of the rate of rent at which it was last paid or payable cannot be final at this stage of passing of the order under Sub-section (3) of Section 13 and it would only be provisional. There is well known distinction between the words and phrases, 'provisional' in contra-juxta position to the phrase 'final'. The two terms contemplate, clearly, that neither provisional can be final nor final can be provisional.
14. If the interpretation put by Mr. Karnani, is accepted, it would mean that the court should first finally determine the rate of rent last paid and thereafter direct the tenant lo pay the same. It suffers from the fallacy of conferring the trial court jurisdiction for final adjudication at the stage of provisional determination. It makes the provision under Section 13(3)(7) & (8) virtually superflous because once final adjudication is done there is no need to have any provisional determination.
15. A comprehensive reading of Sub-section (3) would show that the determination is provisional under Sub-section (3). It illustrates in the present case, the controversy was that where as the plaintiff asserted that the last rent paid was Rs. 70/- per month, the defendants case is what it was Rs. 63/- per month. In these circumstances, if the rate of rent is to be determined finally then it would mean to have one more trial for this purpose only, which is never contemplated by the legislature.
16. A perusal of Sub-section (3) of Section 13 would show that the legislature intended to make provisional determination about the period of a default as well as the period of rent last paid or payable so that during the pendency of the suit the arrears can be paid & further the tenant becomes liable to pay rent every month. In case of less payment or more payment of rent determined the dispute can be decided finally at the time of decision of the suit and Sub-section (8) would then come into picture. That being so, the only interpretation in Sub-section (3) of Section 13, is that provisional determination for the purpose of this Sub-section is for both the period of default and the monthly rent last paid or payable and when the addition of the interest results in the total sum to be paid, the payment of which can save the tenant, from eviction and the non-payment of which deprive the tenant from his defence.
17. I have got no doubt that the rate of rent is to be determined after hearing the parties on the basis of material on record provisional only and not finally, if it is in dispute. The final determination for the rate of rent and the period for non-payment is to be done under Sub-section (7) of Section 13 and the adjustment of less payment or excess payment is to be made under Sub-section (8) at the stage of passing of the decree only. Sub-clauses (a) or (b) of Sub-section (8) of Section 13 contemplated the stage of passing of the decree and Sub-section (7) expressly mentions that such dispute can be decided finally at the time of decision of the suit.
18. I have, therefore, got no hesitation in holding that the rate of rent paid or payable as contemplated by Sub-clause (a) of Sub-section (3) of Section 13, in case, if it is disputed, would be determined provisionally after following the procedure laid down in Sub-clause (3), and after hearing the learned Counsel for the parties and on the basis of material on record at the time, this provisional determination is to be made on the first date of the hearing, normally and not on the last date of the hearing. The difference to be travelled between the first date of hearing and the last date of hearing is the indicator of provisional determination on the former stage is in contra-juxta-position to final determination at the last date of hearing and the last stage of passing a decree. In my view, it admits of no doubt, debate or dialogue and that in the reason why inspite of taking time, both the learned Counsel could not point out any authority or decision of any High Court, on this issue. Since the interpretation of the words used in Sub-sections (3), (7) & (8) of Section 13, is clear, there was no latent ambiguity which requires adjudication by the High Court in any case.
19. Now coming to the second submission of Mr. Karnani, he submitted that since plaintiff has come with a false case, the suit must be dismissed. In a civil case, the court can always grant partial decree while holding that part of the claim put up by the plaintiff and some time major part of the plaint claim is not proved or disproved or false. When we deal with a civil suit we cannot invoke the principles of the throwing out a writ petition under article 226 of the Constitution on the ground that the plaintiff did not come with clean hands, because it is an equitable jurisdiction under Article 226 of the Constitution which is extra ordinary in nature and discretionary one.
20. One has to appreciate the distinction of a civil suit and a writ petition in this connection. In a plaintiff's case with respect to money claim of Rs. 5,000/-, a Civil Court cannot deny the decree on the ground that the claim of Rs. 5,000/- was false and only Rs. 50/- were advanced. If plaintiff seeks decree for eviction of whole house on the ground of bonafide necessity. a Civil Court cannot deny the decree for two rooms or part of the premises if the same is proved and the whole of the case is, found as false or not proved or disproved.
21. Maherchand's case has got its special features in which the eviction was claimed on default from 1-3-68, and the court found that the claim was false. The distinctive feature of that case was that in two consequent litigations where the rent was claimed from Aug 18, 1975, which in fact was never the case set up by the landlord, was held to be improper and wholly illegal, Secondly in the earlier proceedings no arrears of rent were claimed it was further found that the receipt was issued by the landlord to the tenant and, therefore, the claim of arrears cannot be accepted. It was found that a new case has been made out.
22. Even if the distinctive features pointed out by me are too thin or can be explained, I have not been able to persuade myself to accept the view of G.V. Gupta, J. in Meharchand's case (supra), when it has observed that ' If once it is held by the Court that the landlord is not coming with clean hands and has taken false pleas, no order of ejectment can be passed in his favour much less a new case can be made out for him as has been done by the Appellate Authority in the present case. With due respect, it is difficult to appreciate in a civil suit on being found that part of claim of the plaintiff is not proved, disproved or false whether it can disentitle him to have a decree normally except in case of equitable claims which stand on different footings. Undoubtedly, a dispute between landlord and tenant is not a out-come of equitable jurisdiction and is out-side the domain of equity as it is based on the bed rock of contract circumscribed, limited and controlled by the provisions of rent control laws like, the Rajasthan Premises (Control of Rent and Eviction) Act. If a tenant is found to be liable for eviction on any one of the grounds mentioned in Section 13 of the Act; even if the allegations about other grounds are found to be false a suit cannot be dismissed. In my view with due respect, the principles laid-down in Meharchand's case (supra) in this respect cannot be accepted in the domain at limitations, control and regulations circumscribed under the provisions of Section 13 of the Act. As much as that even Section 105 of the Transfer of Property Act, has to be held inapplicable as held by the Supreme Court in V. Dhanpal Chettier v. Yesokal Ammal 1978 S.C. 1745. Since I am convinced that the above two contentions raised by Mr. Karnani, are devoid of any force, I have got no hesitation in holding that no substantial law questions of are involved in this second appeal.
23. It is true that the tenant would suffer great hardship on account of paucity of the accommodation in these days. As such the prayer of Mr. Karnani, for grant of time is accepted while dismissing the appeal. It is ordered that the decree of eviction would become executable after expiry of one year from today provided that the following conditions are fulfilled by the tenant appellant:
(1) The appellant should give written undertaking in this Court within two weeks from today that he would undertake to vacate the possession and handover it to the plaintiff on expiry of one year period and that he would not challenge this decree in any forum whatsoever.
(2) That the appellant would pay rent regularly every month to the respondent during the said period of one year along with the arrears of rent.
24. In case, either of the above two conditions is not fulfilled, the decree for eviction would become executable forthwith.
25. In the result the second appeal of the tenant fails and is dismissed with the above observations. The parties would bear their own costs in this second appeal.