Ranchbodmal v. Nawaratanmal — 1979 DIGILAW 211 (RAJ)

S.K. MAL LODHA, J.—This rule was issued at the instance of defendant No. 2 Ranchhodmal. The plaintiff-non-petitioner No. 1 (landlord) instituted a suit for arrears of rent and ejectment in respect of a shop, against the petitioner and non-petitioner Nos. 2 and 3, who are defendants Nos. 1 and 3 in the trial court, on November 29, 1976. The rate of the rent, as stated by the plaintiff is Rs. 55/- per month. According to the plaintiff, rent was due from the defendants from Kartik sudi 1, smt. 2029 to Jeth vadi 15 (amavasiya) smt. 2033. i. e. for 44 months (inclusive of Idak month) amounting to Rs. 2420/-. Towards that, it is stated that on June 25, 1976, a cheque for Rs. 1320/-was given to the plaintiff by the defendants leaving 1100/- as due. In the written statement, it was pleaded by the defendants that they had deposited Rs. 1029-66 in the plaintiffs account towards the electricity charges. It was contended that no amount of rent is outstanding against them. 2. An application was moved by the defendants for the determination of amount under section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) and stated that he has already deposited Rs. 1044-74 in the account of landlord by paying off the electric bills of the premises. The original receipts in the name of the landlord evidencing the payment of electric charges, were produced by the defendants. The learned Additional Munsif, by his order dated November 16, 1977, determined Rs. 1220-26 and directed the defendants to pay to the landlord within fifteen days or to deposit it in court. He also made a direction for deposit of the monthly rent, as envisaged by S. 13(4) of the Act. 3. Feeling aggrieved by this order, the plaintiff went in appeal under section 22 of the Act. 4. Learned Additional District Judge No. 1, Jodhpur accepted the appeal on March 2, 1979 and modified the order of the learned Additional Munsif and determined provisionally Rs. 2090 as arrears of rent and Rs. 175/- as interest, total Rs. 2265 as amount due and directed that the entire amounts either be paid by the defendant to the plaintiff or be deposited in court. 5. Being dissatisfied with the appellate-order, the defendant-petitioner got the rule issued. 6. I have heard Mr. 2090 as arrears of rent and Rs. 175/- as interest, total Rs. 2265 as amount due and directed that the entire amounts either be paid by the defendant to the plaintiff or be deposited in court. 5. Being dissatisfied with the appellate-order, the defendant-petitioner got the rule issued. 6. I have heard Mr. M. D. Calla for the petitioner and Mr. R. R. Nagori for the plaintiff-non-petitioner No. 1. 7. Learned counsel, appearing for the petitioner contended that the order determining the amount of arrears of rent and interest, passed under section 13(3) of the Act, was not appealable under section 22 of the Act and as such, the learned Additional District Judge has exercised jurisdiction not vested in him by law. According to the learned counsel, the order passed by the learned Additional District Judge modifying the order of the learned Additional Munsiff is without jurisdiction and, therefore, it should be set aside. In these circumstances, a serious question arises for my consideration, namely, whether an appeal lies against the order passed under section 13(3) of the Act, determining the amount of rent and interest and directions under Section 13(4) of the Act for its payment or deposit and for payment of the monthly rent month by month, subsequent to the date of the determination under section 13(3) of the Act. 8. It will be useful here to read sub-sections (3), (4), (5), (6), (7) and (8) of section 13 of the Act, which are as under: "(3) In a suit for eviction on the ground set forth in clause (a) of subsection (1) with or without any of the other grounds referred to in that subsection, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of determination: Provided that while determining the amount under this sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit. (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 under sub-sec.(3). (5) If a tenant fails to deposit or pay any amount referred to in sub-sec. (4) on the 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. (6) If a tenant makes deposit or payment as required by sub-sec. (4) no decree for eviction on the ground specified in clause (a) of sub-sec. (1) shall be passed by the court against him : Provided that a tenant shall not be entitled to any relief under this subsection, if having obtained such benefit or benefits under sec. 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months. (1) shall be passed by the court against him : Provided that a tenant shall not be entitled to any relief under this subsection, if having obtained such benefit or benefits under sec. 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months. (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-sec. (3) and deposited in court or paid to the landlord under sub-sec. (4) is less than the amount of rent finally decided 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 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-sec. (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 future rent payable by the tenant." Sec. 22 of the Act, which provides for appeal and revision, reads as under : "22. Appeal and Revision.—(1) From every decree or order passed by a Court under this Act, and appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former Court. (2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision. (2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision. (3) Any person aggrieved by an order of the Magistrate may, within fifteen days, from the date of such order, appeal the reform to the District Magistrate or such authority as the State Government may from time to time appoint in that behalf." 9. It is clear from sub-sec. (1) of section 22 that from every decree or order passed by a court under the Act an appeal lies to the Court to which appeals ordinarily lie from original decrees and orders passed by such former Court. Sub-sec. (3) of sec. 22 of the Act also provides for an appeal against the order of the Magistrate to the District Magistrate or such authority as the State Government may from time to time appoint in that behalf. 10. Sec. 2(2) C.P.C. defines decree as follows : "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within sec. 144, but shall not include— (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.—A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." Order has been defined in sec. 2(14) C.P.C. as under: " order means the formal expression of any decision of a Civil Court which is not a decree." Learned counsel for the petitioner contended that the order, which finally determines the rights of the parties to a suit has only been made appealable under sec. 22(1) of the Act. As the determination of the amount made under sec. 13(3) of the Act, is provisional and subject to adjustment at the time when the suit is finally decided, such order cannot be said to determine the rights of the parties finally under sec. 13(3) of the Act. 22(1) of the Act. As the determination of the amount made under sec. 13(3) of the Act, is provisional and subject to adjustment at the time when the suit is finally decided, such order cannot be said to determine the rights of the parties finally under sec. 13(3) of the Act. According to Mr. Calla, the order under sec. 13(3) of the Act, being interlocutory and provisional one, is not appealable under sec. 22(1) of the Act. Sub-sec. (3) of sec. 13 of the Act provides that the court shall, subject to the limitations, mentioned therein, in a suit for eviction on the ground, set forth in clause (a) of sub-sec. (1) of sec. 13 with or without any of the other grounds referred to in that sub-section, hear the parties and shall provisionally determine the amount of rent to be deposited in court or to be paid to the landlord by the tenant. Manner and mode of calculation of the amount and interest thereon, have been provided in that subsection. A proviso has been added to it, which lays-down that at the time of determination of the amount, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit. Sub-s.(4) of S.13 of the Act provides that after determination of the amount u/s. 13(3) of the Act, the Court shall give direction for deposit of the amount or payment to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made. Sub-s. (5) of S. 13 of the Act provides that failure to comply with the directions made u/sec. 13(4), will entail striking out of defence against eviction. Sub-sec. (6) of sec. 13 lays down that if the deposit or payment in accordance with sub-sec. (4) of sec. 13 is made, then decree for eviction on the ground mentioned in clause (a) of sub-sec. (1) shall not be passed. The next two important sub-sections are sub-secs. (7) & (8). Sub-sec. (7) of sec. 13, amongst others, provides that if there is any dispute as to the amount of rent payable by the tenant, the Court shall determine it finally at the time of the decision of the suit. Sub-sec. (8) of sec. (1) shall not be passed. The next two important sub-sections are sub-secs. (7) & (8). Sub-sec. (7) of sec. 13, amongst others, provides that if there is any dispute as to the amount of rent payable by the tenant, the Court shall determine it finally at the time of the decision of the suit. Sub-sec. (8) of sec. 13 deals as to what directions are to be made at the time of the decision of the suit in regard to the amount. It is. therefore, clear that the court, seized of the suit based on the ground specified in clause (a) of sub-section (1) of section 13 of the Act, has to judicially determine the amount of rent and interest under Sec. 13(3) inasmuch as before passing an order, it has to hear the parties and to take into consideration the material on record. While doing so, what considerations the court has to keep in view, have also been specified in sub-section (3) of section 13 of the Act. As stated above, the determination, though provisional and temporary in one sense, is final upto the decision of the suit for the simple reason that in case of failure to deposit or pay the amounts referred to in sub-section (4), on the date or within time specified therein, the court has been empowered to strike out defence against eviction and to proceed with the hearing of the suit, and if the amount is deposited or paid as required by sub-section (4), then decree for eviction on the ground mentioned in clause (a) of sub-section (1) of section 13, cannot be passed by the Court against the tenant. An order passed under section 13(3) of the Act is binding in all subsequent stages of the suit until the court passes an order either under section 8(a) or (b), at the time of the decision of the suit. This provisional order determining the amount of rent under section 13(3) and the consequential directions contemplated by section 13(4), in my opinion are really an adjudication of the rights of the parties, as failure to comply entails a penalty of striking out defence and compliance thereof affords protection to the tenant against eviction, so far as the suit is based on the ground specified in clause (a) of subsection (1) of section 13 of the Act. There are various provisions under the Act, which contemplate passing of certain orders. Section 7 of the Act provides for fixation of provisional rent. Sub-section (3) of section 7 says that a suit for the recovery of arrears of rent to which the provisional rent fixed under sec. 7 of the Act is applicable shall be stayed by the court upon the payment by the tenant to the landlord on the basis of such provisional rent. Sub-section (4) of section 7 lays down that any failure to pay the provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction under clause (a) of sub-section (1) of section 13, and all sums due from the tenant as such shall be recoverable from him as if the order under subsection (1) were a decree of the court in a suit for periodical payments. Subsection (5) provides that all amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed. Section 15 deals with restoration of the possession to evict tenant. It provides that in case of the fulfilment of the conditions laid down under section 15, the court which passed the decree may, on the application of the evicted tenant place him in possession of the premises. 11. Section 483 of the Companies Act, came up for consideration before a Division Bench of this Court in Mehtabchand Golcha vs. The Official Liquidator (1). It was held therein that it is not each and every order passed by the Company Judge that would be appealable under sec. 483 of the Companies Act but it is such order a? may determine any right or liability that could be made the subject matter of an appeal. Learned counsel invited my attention to Jethanand vs. State of U. P (2) wherein meaning of the final order mentioned in Article 133(l)(c) came to be examined. To quote their Lordships: "By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. To quote their Lordships: "By its order, the High Court did not decide any question relating to the rights of the parties to the dispute. The High Court merely remanded the cases for retrial holding that there was no proper trial of the petitions filed by the appellants for setting aside the awards. Such an order remanding the cases for retrial is not a final order within the meaning of Art. 133(l)(c)." My attention was also drawn by Mr. Calla, learned counsel for the petitioner, to a decision reported in R. C. Spg. & Wvg. Mills vs. B. C. Mills (3) wherein it was held that order setting aside the auction sale as nullity on the ground that the deposit was not paid on the day the sale was held, the order is a final order and not an interlocutory order and hence falls within the definition of a decree under section 2(2) read with Sec. 47, and as such an appeal, therefore, was maintainable. It was observed: "Therefore, if an order decides a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree it would fall under Sec. 47 and would be a decree within the meaning of Sec. 2(2). If such order is a decree, it is appealable under S. 96 of the Code." Sohanlal vs. Rajmal (4), on which reliance was also placed by the learned counsel for the petitioner, is of no avail, for, in that case, it was laid down by Jagatnarayan, J., as he then was, that appeal lies only against orders deciding finally and conclusively questions relating to execution between parties and not incidental questions of stay of execution. An application, in that case, under O.XXI, r. 29 C. P. C, as it stood then, was rejected by the executing court on the ground that it had no jurisdiction to stay execution proceedings as the suit pending before it was not against the holder of a decree of the Court of Civil Judge, Chittorgarh. The judgment-debtor preferred an appeal against the order of the executing court. That appeal was rejected and against it, second appeal was filed in the High Court. The learned Judge came to the conclusion that no appeal lay against that order of the executing court and, therefore, the second appeal was held to be not maintainable. The judgment-debtor preferred an appeal against the order of the executing court. That appeal was rejected and against it, second appeal was filed in the High Court. The learned Judge came to the conclusion that no appeal lay against that order of the executing court and, therefore, the second appeal was held to be not maintainable. It was observed as under : "The order to be appealable must be an order which finally or conclusively determines the question at issue between the parties relating to the execution of a decree. Further it must be a question relating to the r.;ghts and liabilities of the parties with reference to the relief granted by the decree and not merely an incidental question as to whether the execution proceedings are to be stayed temporarily or not." The words used in sec. 22 (1) of the Act are "every decree or order". Decree or Order which could be appealed against for the purpose of appeal under Sec. 22(1) must have been passed under the Act. From what has been stated above, in my opinion, the words "every order" include provisional or interlocutory order, which the court passes under the provisions of the Act as it is binding in all subsequent stages of the suit. The determination under sec. 13(3) and directions made in pursuance thereof under sec. 13(4), in My-opinion, though provisional in nature, determine the rights of the parties with regard to the matters in controversy. 12. In view of the foregoing reasons, I have not been able to persuade myself to agree with the learned counsel for the petitioner that no appeal lay against the order of the Additional Munsiff dated November 16, 1977 by which he determined the amount of rent under sec. 13(3) of the Act and made direction of its deposit or payment and subsequent deposit of the rent month by month. 13. The appeal before the learned Additional District Judge was maintainable and, thus, I repel the contention that the learned Additional District Judge has exercised jurisdiction not vested in him by law when he entertained and decided the appeal under sec. 22(1) of the Act. 14. 13. The appeal before the learned Additional District Judge was maintainable and, thus, I repel the contention that the learned Additional District Judge has exercised jurisdiction not vested in him by law when he entertained and decided the appeal under sec. 22(1) of the Act. 14. It was next argued by the learned counsel for the petitioner that the learned Additional District Judge did not take into consideration the admission of the plaintiff regarding the payment of the electricity charges and further in holding that defence regarding payment of the electricity charges could not be examined without payment of court fee. According to the learned counsel for the petitioner, he has pleaded adjustment and has not claimed any set off. The plaintiff has claimed arrears of rent. The defendant has pleaded that he has paid Rs. 1029.66 in the account of the plaintiff for paying off the electricity charges. In the affidavit, this amount has been mentioned as 1044.74. Learned counsel appearing for the petitioner could not satisfy me that in modifying the figure of the amount determined by the trial court, the learned Additional District Judge has committed any illegality or material irregularity. 15. No ground for interference is, therefore, made out. 16. The Rule is, therefore, discharged without any order as to costs.