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Bhikamchand Vs. Jugal Kishore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Petition No. 96 of 1978
Judge
Reported in1978(11)WLN682
AppellantBhikamchand
RespondentJugal Kishore and ors.
DispositionApplication dismissed
Cases ReferredIn Ram Chaandra v. Ramesh Chandra
Excerpt:
.....the benefit which the defendant tenant could take under section 3(7)(old) by making the required deposit or payment as provided in sub-sections (4) and (5) of section 13(old).;'such benefit' used in proviso to section 13(7) fold or 13(5) of the act refer to the benefit availed of by the tenant under section 13(7) fold or 13(6) of the act. the use of the word 'such' before the word 'benefit has a significance and it (such) refers to the benefit availed of by the tenant as contemplated in section 13(7)(old) or section 13(6) of the act.;the learned additional district judge has not committed any illegally or material singularity in exercise of his jurisdiction when be held that the defendant-petitioner is not entitled to get the benefit of section 13(a) of the ace as be had already..........the fifteenth of each succeeding (6) if a tenant makes deposit or month a sum equivalent to th 5 rent. @ payment as required by subsection (4) or no decree for eviction on the ground specified in clause (a) of sub- section (1) shall be passed by the ............ court against him: provided that a tenant shall not be entitled to any relief under this ............ sub-section, if having obtained such benefit br benefits under section 13a in respect of any such accommoda- tion if he again makes a default in the (7) if a tenant makes deposit or pay payment of rent of that accommo- ment as required by sub-section (4) dation for six months. or sub-section (5), no decree for evi- ction on the ground specified in section 13 a. special provision clause (a), of sub-section (1) shall be.....
Judgment:

S.K. Mal Lodha, J.

1. This is a revisional application filed by the defendant tenant against the appellate order of the learned Additional Judge No. 1, Jodhpur dated January 13, 1978 by which he set aside the order of the learned Munsif City, Jodhpur dated January 29, 1977.

2. Briefly put the facts leading to this revision are these : the plaintiffs-non petitioners (landlords) instituted a suit for arrears of rent & ejectment against the defendant petitioner in the court of Munsif City, Jodhpur on March 18, 1976 In the suit the plaintiffs claimed rent from March 1, 1975 to January 31, 1976 @ Rs. 80/- per month and damages for use and occupation from February 1, 1976 to March 18, 1976 amounting to Rs. 290 out of when they relinquished Rs. 130/-. It was specifically mentioned in para 7 of the plaint that the previous Civil Original Suit No 119 of 1972 which was decided by the learned Additional Civil Judge, Jodhpur on March 18, 1972, was for the recovery of arrears of rent at the rate of Rs. 80/- pet month from November 1, 1969 to October 31, 1970 and damages for use and occupation from November 1, 1970 to May 18, 1971 and ejectment. It was also stated in para 7 that that suit for ejectment was based on the ground of default in payment under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (No XVII of 1950)(for short 'the Act'). In that suit, the defendant is alleged to have taken benefit of Section 13(7)(old) of the Act but as defendant has committed default in payment of rent, as mentioned above, it was prayed that the plaintiffs are entitled to evict the defendant from the premises in question and the defendant is not entitled to any protection or benefit. On July 29, 1976, the trial court directed the defendant under Section 13(4) of the Act to deposit in court or pay to the plaintiffs by August 12, 1976 the amount of arrears of rent, costs of suit and interest and further ordered that the file be put up for the decision of the suit for on August 12, 1976. A perusal of the proceedings of the trial Court, dated August 12, 1976 shows that the amount was deposited vide tender No. 727 dated August 5, 1976 On that day, the counsel for the plaintiffs intimated the trial Court that this was a case of second default. The trial Court ordered that the defendant should file the written statement on October 12, 1976. On November 13, 1976, an application was moved by the defendant under Section 13(6) of the Act stating therein that he facts deposited the entire amount in pursuance of the order of the Court dated July, 29, 1976 and that the defendant has not taken the additional benefit of Section 13A of the Rajasthan Premises (Control of Rent and Eviction)(Amendment Ordinance 1975) (Rajasthan Ordinance No. XXVI of 1975) or after that of Section 13A of the Act. He, therefore, prayed that the suit o the plaintiffs may be dismissed. This application was resisted by the plaintiffs by filing a reply dated December 13, 1976 on the ground that the defendant had already taken benefit under Section 13(7), as it stood; then, an, therefore, since the suit out of which this revision has arisen, was based on second default under Section 13(1)(a), the defendant is not end Jed to the benefit of Section 13(6) of the Act Along with the reply, the plaintiffs submitted the certified copies of the plaint (filed in Civil Original Suit No. 119 of 1972), decree-sheet dated March 18, 1972, order dated February 24, 1972 and application dated March 10, 1972. After hearing the arguments, learned Munsif, by his order dated January 29, 1977, dismissed the plaintiffs suit for eviction.

4. Being dissatisfied with the order of the learned Munsif dated Jan 29, 1977, the plaintiffs preferred appeal under Section 22 of the Act. The learned Additional District Judge No. 1. Jodhpur accepted the appeal and set aside the order dated January 29, 1977, passed by the Munsif City and remanded the suit to him for further proceedings in accordance with law in, the light of the observations made by him in the order.

4. Being aggrieved by this order, the defendant has come up in revision to this Court as aforesaid.

5. Appearing for the petitioner, Mr. J.P. Jeshi contended that in the earlier suit No. 119 of 1972, compromise wan arrived at between the plaintiffs and the defendant and on the basis of the compromise, the suit was disposed of and as such there was no finding of the learned Additional Civil Judge, Jodpur that the defendant was a defaulter under Section 12(1)(a) of the Act. He made particular reference to the decree-sheet of Civil suit No. 119/72. The relevant portion of which reads as under:

o fMxjh nh tkrh gS fd ekfQd jkthukek izfroknh dks 1 5@& rk0 10&5&72 dks vnk djsxk] ,slk djus ij oknh izksehtst eqruktk ls csn[ky ugh djsxk A o nkok [kkfjt le>k tk;sxk A ;fn bl izdkj vnk;xh ugh djus ij oknh nkok ds vuqlkj ;wt ,UM vksD;wys'ku ds 80@& :0 ekgokj ls eqdnek [kpkZ o izhfetst eqruktk dk dCtk nkas ekg ckn ikus dk eqgrgdk gksxk [kpkZ viuk viuk Qjhdus ik;sxs A

(There are some mistakes in the language of the decree)

6. It was next urged, that the defendant in the previous Suit No 119 of 1972 did not avail of the benefit of Section 13A as it stood then, and therefore, it cannot be said that he took benefit of Section 13(7)(old) and when he has not taken such benefit, the defendant cannot be deprived of the benefit, available to him under Section 13(6) of the Act.

7. In order to appreciate the contentions raised by the learned Counsel for the petitioner, I may reproduce here the relevant sections-

Provisions of law which were in Provisions Of law which were/are in

force upto the decision of the suit force upto the decision of the suit

No. 119 of 1972 which was decided and appeal leading to the present

on March 18, 1972 revision.

Section 13 Eviction of tenant....(1) Not Section 13-Eviction of tenants(1) Not

withstanding anything contained in withstanding any thing contained in

any law or contract, no Court shall any law or contract, no Court shall

pass any decree, or make any order, pass any decree, or make any order,

in favour of a landlord, whether in in favour of a landlord, whether in

execution of a decree or otherwise, execution of a decree or otherwise,

evicting the tenant so long as he is ready evicting the tenant so long as he is

and willing to pay rent therefore to ready and willing to pay rent there-

the full extent allowable by this Act, fore to the fall extent allowable by

unless it is satisfied.... this Act, unless it is satisfied.

(a) that the tenant has neither paid (a) that the tenant has neither paid

nor tendered the amount of rent due nor tendered the amount of rent

from him for six months. due from him for six months.

............ ............

............ ............

............ ............

(4) In a suit for eviction on the (4) The tenant shall deposit in

ground set forth in Clause (a) of court or pay to the landlord the

Sub-section (1), with or without any amount determined by the court

of the other grounds referred to in under Sub-section (3) within

that sub section, the tenant shall, on fifteen days from the date of such

the first day of hearing on or before determination, or within such fur-

such date as the court may, on an their time, not exceeding three

application made to it, fix in this be- months, as may be extended by the

half, or within such time, not excee- court. The tenant shall also conti-

ding two months, as may be extendee- nue to deposit in court or pay to the

by the court, deposit in court or pay landlord, month by month the

to the landlord an amount calculated monthly rent sub sequent to the

at the rate of rent at which it was period upto which determination

last paid, for the period for which has been made, by the fifteenth of

the tenant may have made default each succeeding month or within

including the period subsequent such further time, not exceeding

thereto upto the end of the month fifteen days, as may be extended by

previous to that in which the deposit the court, at the monthly rate at

or payment is made together with which the rent was determined by

interest on such amount calculated the court under Sub-section (3).

at the rate of six percent per annum

from the date when any such amount

was payable upto the date of ............

deposit and shall thereafter continue

to deposit or pay, month by month,

by the fifteenth of each succeeding (6) If a tenant makes deposit or

month a sum equivalent to th 5 rent. @ payment as required by subsection

(4) or no decree for eviction on the

ground specified in Clause (a) of Sub-

section (1) shall be passed by the

............ court against him:

Provided that a tenant shall not

be entitled to any relief under this

............ sub-section, if having obtained such

benefit Br benefits under Section 13A

in respect of any such accommoda-

tion if he again makes a default in the

(7) If a tenant makes deposit or pay payment of rent of that accommo-

ment as required by Sub-section (4) dation for six months.

or Sub-section (5), no decree for evi-

ction on the ground specified in Section 13 A. Special provision

Clause (a), of Sub-section (1) shall be relating to pending and other mat-

passed by the court but the court ters : Notwithstanding anything to the

may allow such costs as it may deem contrary in this Act as it existed

fit to the landlord. before the commencement of the

Provided that a tenant shall not Amending Ordinance or in any

be entitled to any relief under this other law.

sub-section if having obtained such

benefit or benefit under Section 13A (a) no court shall, in any proceeding

in respect of any such accommo- pending the date of commencement3

dation, if he again makes a default in of the amending Ordinance pass any

the payment of rent of that accommo- decree in favour of landlord for

dation for six months. eviction of a tenant on the ground

of non-payment of rent, if the tenant

Secton 13 ASpecial provisions rela- applies under Clause (b) and pays to

ting to pending and other matters- the landlord, or deposits in court.

Notwithstanding anything in section within such time such aggregate of

13. Sub-section (1)(a), or sub-section the amount or rent in arrears, inter

(4) and the proviso thereto or sub- est thereon and Ml costs of the suit

Section (5) as they existed before as tniy be directed by the court3

the commencement of the amending under and in accordance with that

Act. Clause (b) fonevery such proceedings

the court shall, on the application of

(a) no court shall, in any proceeding the tenant made within thirty days

pending on the date of commence- from the date Of Commencement of

ment of the Act, pass any decree in the amending rdinance notwith-

favourof a landlord for eviction of a standing any order to the contrary,

tenant on the ground of non-pay determine the amount of rent in arr-

ment of rent, if the tenant applies ears upto the date of the order as

under Clause (b) and pays to the also 'tire anWuWof interest thereon

landlord, or deposits in court, within at 6% per ttnmitn and costs of the

such time such aggregate of the suit allowable to the landlord, and

amount or rent in arrears, interest direct the tenant to pay the amount

therein and full costs of the suit as so determined within such time, not

may be directed by the court under exceeding ninety days, as may be

and in accordance with that clause; fixed by the court; and on such pay-

ment being made within the time

fixed as aforesaid, the proceeding

shall be disposed of as if tenant had

(b) in every such proceeding, the not committed any default.

court shall, on the application of the

tenant made within thirty days from

the date of commencement of the

Amending Act, notwithstanding any

order to the contrary determine the

amount of rent in arrears upto the

date of the order as also the amount

of interest thereon at six per cent

per annum and costs of the suit allo-

wable to the landlord; and direct the

tenant to pay the amount so determined

within such time, not exceeding

ninety days, as may be fixed by the

court; and on such payment being

made within the time fixed as afore-

said, the proceeding shall be disposed

of as if tenant had not committed

any default.

8. The first question, that arises for determination is whether in the absence of a finding that the tenant is a defaulter within the meaning of Section 13(1)(a), in a suit which is based on the ground of default in payment of rent and disposed of on the basis of compromise, the defendant can be said to have availed of the benefit of Section 13(7)(old) of the Act. Similar argument was raised in Sobhraj v. Bhanwarlal 1974 RLW 251. It was contended in that case that proviso to Section 13(7)(old) could not apply to that case inasmuch as it was not proved that the tenant-appellant had committed default previously. The learned Judge observed as under:

It is true that in the previous suit no enquiry was held into the allegation of delault because the appellant had applied under Section 13A of the Act within the time prescribed therein and consequently the suit for ejectment was dismissed without holding any enquiry into the allegations made by the parties. The proviso however makes it clear that a tenant shall not be entitled to any relief under this sub-section [Sub-Section (7)], if having obtained such benefit or benefit under Section 13A in respect of any such accommodation for six months. It is not the requirement of law that there must be Ending as to the previous default. What is required is that the tenant must have obtained the benefit under Section ISA That the appellant has admittedly done previously. As already held above he has again made default in the payment of rent for more than six months and consequently he cannot save himself from ejectment by making deposit under Section 13(4).

I, respectfully agree with the view taken in Sobhraj's case 1971 RLW 251 Proviso to Section 13(7)(old) merely lays down that the tenant must have taken benefit of Section 13(7)(old) or benefit under Section 13A in respect of the same accommodation. If having obtained such benefit or benefit under Section 13A of the Act he makes default in the payment of tent for six months, in respect of the same accommodation, he is not entitled to the relief as provided under Section 13(7)(old). The relief provided in the sub-section referred to above is, that in ease of deposit or payment as required by Sub-section (4) and (5) of Section 13(old), being made by the tenant, no decree for eviction on the ground specified in clause (a) of Sub-section (1) of the Section 13, can be passed.

9. It is not disputed that suit No. 119 of 1972 was based on the ground of default in payment of rent as envisaged in Section 13(1)(a), for the rent due from November 1, 1969 to October 31, 1970 and damages for use and occupation from November 1, 1970 to May 18, 1971. The learned Additional Civil Judge, Jodhpur, in that suit, determined the amount of rent and interest and directed the defendant to deposit the same in court within 15 days from the date of order dated February 24, 1972. The manner and mode of payment of the amount that was determined by the learned Additional Civil Judge, was specified in the compromise arrived at between the parties. It is, therefore, clear that defendant had obtained the benefit of Section 13(7)(old) and this is a sufficient compliance of it. I, therefore, had that the defendant had taken benefit of Section 13(7)(old) in the earlier Suit No. 119 of 1972 and repel the contention of the learned Counsel for the petitioner that since finding as to the default was not given in it, it cannot be said that he has availed of the benefit of Section 13(7) old) in that suit.

10. Learned Counsel for the petitioner vehemently argued that the defendant had neither taken advantage of Section 13A, as it stood then, in the earlier suit nor has he taken advantage of Section 13A of the Act in this suit, which has given rise to this revision. It was urged that the word 'such benefit or benefit', used in the proviso to Sub-section (6) of Section 13, refer to benefit or benefits under Section 13A of the Act. The expression 'such benefit' according to the learned Counsel for the petitioner, does not refer to the benefit available to the tenant under Sub-section (6) of Section 13 of the Act. The contention in this regard is futile. Sub-sections (4) and (5) of Section 13(a) were introduced for the benefit of the tenant so that in case of first default he may protect himself against the eviction by making the required deposit or payment, as provided therein, But in case a tenant who has committed a second default, as mentioned in the proviso to Sub-section (7) of Section 13(old), no such benefit is available. Therefore, in my considered opinion, 'such benefit' used in the proviso to Sub-section (7) of Section 13(old) refer to the benefit which the defendant tenant could take under Section 13(7)(old) by making the required deposit or payment as provided in Sub-sections (4) and (5) of Section 13(old) This view of mine standi fortified by a decision in Hanuman Prasad v. Gaindi Lul 1973 WLN 626. 'Such benefit' used in the proviso to Sub-section (6) of Section 13 of the Act, refer to the benefit which the tenant can avail of by making deposit of payment as required by Sub-section (4) of Section 13 of the Act. This proviso applies in the following circumstance:

(1) That the same tenant has previously obtained the benefit either (i) under Section 13(7) of the Act, or (ii) under Section 13-A of the Act.

(2) Such tenant repeatedly commits defaults in paying the rent for six months or more.

(3) The demise premises being the same.

It may be stated here that whole of Sub-section (6) was substituted for the previous Sub-section (7) by Section B (iii) of the Rajasthan Premises (Control of Rent & Eviction) Amendment Ordinance, 1975 (Raj. Ordinance No. XXVI of 1975) w.e.f. 29.10.1975 now replaced the Rajasthan Amending Act. No. 14 of 1975.

11. In Ram Chaandra v. Ramesh Chandra 1977 WLN 431, Modi, J. held that the proviso to Sub-section (6) of Section 13 clearly provides that a tenant shall not be entitled to any relief under Section 13(4) if he having obtained such benefit again makes a default in the payment of rent of that accommodation for six months. In Ramchandra's case 1977 WLN 431, the tenant-defendant had not paid any rent to the landlord for more than six months Ht became defaulter within the meaning of Section 13(1)(a) of the Act. He subsequently deposited arrears of rent under Section 19A of the Act. A suit had also been previously filed against him for eviction on the ground of default in payment of rent under Section 13(1)(a) of the Act but that suit was dismissed because the tenant took advantage of Section 13(4)(old) Of the Act by depositing Arrears of rent and interest thereon on the first date of hearing. In respect of the same premises, second suit was filed for eviction and arrears of rent. In these circumstances the learned judge observed:

The subsequent deposit of the arrears of rent by the defendant under Section 19A of the (Act would have protected him from eviction under Section 13(4) of the Act, if he had not taken benefit of Section 13(4) of the Act in the earlier suit.

This clearly shows that 'such benefit' used in proviso to Section 13(7)(old) or 13(6) of the Act refer the benefit availed of by the tenant under Section 13(7)(old) or 13(6) of the Act. The use of the word 'such' before the word 'benefit' has a significance arid it (such) refers to the benefit availed of by the tenant as contemplated in Section 13(7)(old) or Section 13(6) of the Act. In my opinion, the learned Additional District Judge has not committed any illegality or material irregularity in exercise of his jurisdiction when he held that the defendant-petitioner is not entitled to get the benefit of Section 13(6) of the Act 'as he had already availed of the benefit of Section 13(7)(old) in the earlier suit.'

12. The net result of the exercise, done herein above, is that the defendant-petitioner has not been able to make out a case for interference with the order under revision.

13. I, accordingly, dismiss the revision application. In the circumstances of the case, I leave the parties to bear their own costs of the revision application.


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