Madan Mohan v. Madhu Sudan — 1982 DIGILAW 463 (RAJ)

DWARKA PRASAD, J.—This revision petition raises a short question as to whether the defence of the defendant tenant against eviction was wrongly struck off by the courts below. 2. The facts which have led to the filing of the present revision petition may be briefly state: The opposite party Madhu Sudan filed a suit for eviction against the petitioner Madan Mohan in respect of a shop situated in Kuchaman City. The plaintiff also claimed recovery of arrears of rent to the extent of Rs. 468/-, at the rate of Rs. 13/- per month. The suit was filed on two grounds, namely, that the defendant had committed defaults in payment of rent for a period of more than 6 months and had become defaulter within the meaning of Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act ) and that the plaintiff had bona fide and reasonable personal necessity for the shop in dispute. On the application of the defendant, the trial court by its order dt. August 2, 1976 determined the amount of arrears of rent which was payable by the tenant and held that rent for 40 months from March 17, 1973 to July 16, 1976, at the rate of Rs. 13/- per month, in all Rs. .515/-, together with interest thereon at the rare of 6% per annum was payable by the defendant tenant to the landlord plaintiff. The trial court directed that the aforesaid amount should be paid or deposited by the defendant upto August 17, 1976. The defendant paid a sum of Rs. 537.57 p. to the plaintiff on August 17, 1976 in respect of arrears of rent upto July 16, 1976 and interest thereon, as directed by the trial court and a receipt evidencing the said payment was produced before the trial court. 3. Thereafter on April 15, 1977, the plaintiff submitted an application under sub-section (5) of Section 13 stating that the defendant had failed to pay the rent month by month during the period after July 16, 1976 and as such his defence against eviction should be struck off. The defendant file a reply stating that he has continuously paid rent month by month and since no default has been committed by him in payment of rent, the defence could not be struck off. The defendant file a reply stating that he has continuously paid rent month by month and since no default has been committed by him in payment of rent, the defence could not be struck off. The trial court, by its order dated May 9, 1977 held that the defendant had deposited in the court on September 22,1976 rent for two months for the period from July 17, 1976 to September 16, 1976 by means of a tender and thereby the rent for the period from July 17, 1976 to August 16, 1976 was not paid or deposited within the period of 15 days of the succeeding month. It was also held that rent for the period from February 17, 1977 to March 16, 1977 was also not deposited by the tenant within the prescribed time, but the same was deposited on April 5, 1977. On the basis of the aforesaid defaults in payment of rent, month by month, during the pendency of the suit, the trial court held that the provisions of sub-section (4) of Section 13 were not complied with by the defendant-tenant and as such his defence against eviction was struck off. The defendant preferred an appeal before the learned District Judge, Merta, but the same was dismissed by the order dated April 10, 1980. 4. In this revision petition, it was urged by the learned counsel for the petitioner that so far as the period from February 17, 1977 to March 16,1977 is concerned, the rent was deposited by the defendant-tenant on March 15, 1977 and as such the two courts below were not right in striking off the defence of the defendant-petitioner on that ground. I have gone through the record of the trial court and a receipt for the deposit of rent for the period from February 17, 1977 to March 16, 9177 on March 15, 1977 by means of tender was found at p. D36/1 in the record of the trial court. Thus, the learned counsel is right that the rent for the period from February 17, 1977 to March 16, 1977 was deposited by the tenant within time. The receipt regarding payment of rent made by the defendant-tenant on April 5, 1977 must necessarily relate to the subsequent period from March 17, 1977 to April 16, 1977. Thus, the learned counsel is right that the rent for the period from February 17, 1977 to March 16, 1977 was deposited by the tenant within time. The receipt regarding payment of rent made by the defendant-tenant on April 5, 1977 must necessarily relate to the subsequent period from March 17, 1977 to April 16, 1977. Learned counsel for the opposite party also could not raise any objection so far as this aspect of the matter is concerned. 5. But the further question which arises in this revision petition is as to whether the defence to the defendant could still be struck off on the ground that the amount of rent for the period from July 17, 1976 to August 16, 1977 was neither paid nor deposited in the court within the prescribed time but was deposited by tender in the court on September 22, 1976. The original challan regarding deposit of Rs. 26/- by means of tender on September 22, 1976 is at page D 23/1 of the record of the trial court and it has been mentioned therein that the said amount of Rs. 26/- related to rent for two months, from July 17, 1976 to September 16, 1976. Thus, there could be no doubt that the rent for the period from July 17, 1976 to August 16, 1976 was deposited after the statutory period, prescribed in Section 13 (4) of the Act. 6. Learned counsel for the petitioner made two submissions in this respect. His first contention was that the application which was submitted by the plaintiff for striking off the defence under Sec. 13(5) of the Act, was absolutely vague and that no specific period was mentioned therein for which a default was alleged to have been committed by the defendant in payment of rent, during the pendency of the suit. There is no doubt that the application submitted by the plaintiff on April 15, 1977 was vague but when the matter was heard by the trial court, the period for which the default was alleged to have been committed by the defendant was specified and at that point of time the defendant clearly became aware about the period for which the plaintiff alleged that rent was neither paid nor deposited according to the provisions of sub-section (4) of Section 13 of the Act. The matter was again taken up in appeal and no such ground was urged either before the trial court or the appellate court that any prejudice was caused to the defendant on account of the vagueness of the application. It would have been much better if the application submitted by the plaintiff for striking off the defence would have contained the details regarding the precise period in respect of which the defendant was alleged to have committed defaults in payment of rent during the pendency of the suit. But even if such details were not furnished in the application filed by the plaintiff, yet the defendant could not be relieved of his liability for the said default after the details were brought to his notice in the trial court itself. The defendant tenant having become aware of the period for which the default was alleged, could not do anything to remedy the default. Thus, no prejudice appears to have been caused to the defendant on account of the vagueness of the application filed by the plaintiff. 7. It was then argued by the learned counsel for the defendant petitioner that the trial court, by its order dated August 2, 1976 directed the defendant to deposit rent for the period from March 17, 1973 to July 16, 1976 by August 17, 1976 and that the defendant was misled by the fact that the total amount of arrears of rent together with interest thereon had been deposited by him and the defendant was under an impression that rent upto August 16, 1976 has been deposited by him. This contention cannot be accepted for the simple reason that the receipt which was given by the landlord on August 17, 1976 clearly stated that rent upto July 16, 1976 together with interest thereupon amounting to Rs. 47.57, in all a sum of Rs 567.57, was received by him from the defendant. This receipt was given on August 17, 1976, by the plaintiff to the defendant, who filed the same in the trial court. 47.57, in all a sum of Rs 567.57, was received by him from the defendant. This receipt was given on August 17, 1976, by the plaintiff to the defendant, who filed the same in the trial court. At that time the defendant must have been fully aware of the fact that he had paid rent to the plaintiff only upto July 16, 1976 and the rent for the subsequent period was yet to be paid to the plaintiff or deposited in the court Moreover, the tender for the period from July 17, 1976 to September 16, 1976 which is on the record of the trial court at page D 23/1 clearly shows that a sum of Rs. 26/- was sought to be deposited by the defendant on September 26, 1976 represented rent for the period of two months from July 17, 1976 upto September 16, 1975. Thus, there could be no misconception while making the aforesaid deposit of rent and the submission made by the learned counsel that the defendant was misled is merely an after thought and deserves to be rejected. 8. Another argument which was vehemently put forward by the learned counsel for the defendant-petitioner was that the plaintiff had waived the default since he had submitted an application for withdrawal of the amount of rent relating to the period from July 17, 1976 to September 16, 1976. The plaintiff filed an application under Section 13(5) of the Act on April 15, 1977 and the trial court passed its order striking off the defence of the defendant against eviction on May 9, 1977. Even upto that date the plaintiff had not moved any application for withdrawal of the amount of rent for the aforesaid period. The defendant thereafter preferred an appeal before the learned District Judge, as mentioned above, against the order striking off his defence and the said appeal was dismissed on April 10, 1980. Even until the dismissal of the appeal the plaintiff had not applied for withdrawal of the amount in question. It was subsequent thereto that an application for withdrawal of the amount was made by the plaintiff on September 26, 1980 after the defendants appeal was dismissed by the learned District Judge. Even until the dismissal of the appeal the plaintiff had not applied for withdrawal of the amount in question. It was subsequent thereto that an application for withdrawal of the amount was made by the plaintiff on September 26, 1980 after the defendants appeal was dismissed by the learned District Judge. Thus, until the question of default was agitated and decided, the plaintiff had not even applied for withdrawal of the amount of rent and his subsequent application for withdrawal of the said amount cannot constitute a waiver. Moreover, it is undisputed that the amount of rent for the period from July 17, 1976 to August 16, 1976 has not been withdrawn by the plaintiff even upto this day. After the question about making of defaults in payment of rent during the pendency of the suit was determined by the trial court and the defence of the defendant against eviction was struck off under Sec. 13(5) of the Act, the plaintiff was well within his rights to obtain the said amount of rent and there could be no waiver. As held by their Lordships of the Supreme Court in Dhirendra Nath vs. Sudhir Chandra (1), waiver is an intentional relinquishment of a known right and there was no intentional relinquishment by the plaintiff of his right in the present case. 9. It is well settled that every litigant has a right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. In Lachoo Mal vs. Radhey Shyam (2) their Lordships of the Supreme Court quoted with approval the following passage from the Halsburys Laws of England, Volume 8 (Third Edition):- "As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the Legislature has expressly provided that any such agreement shall be void." 10. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the Legislature has expressly provided that any such agreement shall be void." 10. In Lachoo Mals case (supra) their Lordships held that there was no question of policy, much less public policy, involved if the owner of the building did not wish to avail of the benefit given to him by the rent restriction legislation, in so far as no bar was created by law in the way of his waiving or giving or abandoning the advantage or benefit contemplated by the provisions of the Act. A similar observation was made by a learned Judge of this Court in Bundu vs. Smt. Hasmat (3) wherein, following the principles laid down by their Lordships of the Supreme Court in Lachoo Mals case (supra) it was held that the land-lord could waive the benefit or the advantage conferred upon him by Sub-sec.(5) of Sec. 13 of the Act, resulting from the non-compliance of the provisions of sub-sec. (4) of Section 13, as there was no prohibition contained in the Act for not claiming the right which accrues to the land lord on account of the failure of the defendant tenant to deposit the rent for a particular month or months. In that case an application filed by the plaintiff-landlord, in a suit for ejectment on the ground of defaults in payment of rent, for striking off the defence of the defendant under sub-section (5)of Section 13 was dismissed and a subsequent application filed by the plaintiff in respect of the same matter was held to be barred on the principle of constructive res judicata. In that case, it was urged on behalf of the landlord that if the defendant failed to comply with the conditions mentioned in sub-section (4) of Section 13 of the Act and did not either pay the amount determined by the court on account of arrears of rent and interest thereon or failed to make payment or deposit of rent, month by month, during the pendency of a suit for ejectment based on the ground of default, then the court was bound to strike off the defence of the defendant, under sub-sec. (5) of sec 13 of the Act This argument was repelled by the learned Judge on the ground that the landlord could have waived the benefit accruing to him by virtue of the provisions contained in Sub-sec.(5) of Sec. 13, as there was no prohibitory condition imposing any restriction on the landlord from waiving the benefit contained in the statute. 11. The same principle was applied by this Court in the case of Jaggan Nath vs. Jani Ram(4) where the plaintiff had voluntarily withdrawn the amount deposited by, the tenant towards arrears of rent, although the deposit was made beyond the time prescribed by law. It was held in that case that in such circumstances, the plaintiff-landlord must be deemed to have waived his right of getting the defence of the tenant struck off under Sub-section (5) of Section 13. 12. In the subsequent case, Ratanlal and Jethmal Versus Ram Lal (5), a similar view was taken by another learned Judge of this Court and it was held that the plaintiff could waive the benefit or advantage of the right which accrued to him on account of the failure of the defendant tenant to deposit rent month by month during the pendency of the suit for eviction on the ground of defaults in payment of rent. 13. Section 112 of the Transfer of Property Act provides that a tenant can be relieved of forfeiture, by application of the principle of waiver, if the landlord accepts payment of rent which became due since the forfeiture or by applying for distress for such rent or by any other act on the part of the landlord that the lease subsisted, subject to the condition that the landlord is aware of the fact that forfeiture has been incurred. The general principle that every one has a right to waive and agree to waive the advantage of a law or rule made solely for his protection and benefit and which could be dispensed with by him without infringing any public policy is equally applicable to such cases where the landlord willingly accepts payment of rent made by the tenant after the expiry of the statutory period or in case the landlord withdraws voluntarily the rent deposited by the tenant beyond the statutory period. 14. 14. In Basheshwar Nath Versus Commissioner of Income Tax (6) S. K. Das J. speaking for the Supreme Court and dealing with the question as to what is waiver, observed asunder:— "It has been said that waiver is a troublesome term in the law. The generally accepted connotation is that to constitute waiver there must be an intentional relinquishment of a known right, or the voluntary relinquishment or abandonment of a known existing legal right or conduct such as warrants an inference of the relinquishment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, estoppel is a rule of evidence." 15. The contention of the learned counsel for the petitioner in the present case is that as the plaintiff-landlord submitted an application for withdrawal of the amount of rent for the period from July 17, 1976 to August 16, 1976 he should have been considered to have waived the right accrued to him under Sub-section (5) of Sec. 13 of the Act. In my view, it would be going too far to hold that even after agitating the question that the defendant tenant had contravened the provisions of Sec. 13(4) on account of his failure to deposit the rent for the period from July 17, 1976 to August 16, 1976 within prescribed time and even after obtaining the order under S. 13 (5), striking off the defence of the defendant in respect of eviction, on the basis of the aforesaid default, landlord thereafter submitted an application for the withdrawal of the amount of rent, the landlord could still be said to have waived his right in this respect. For the application of the principle of waiver, there must be a voluntary or intentional relinquishment of his known right by the landlord and if he applied for withdrawal of the amount of rent after fully asserting his right of getting the defence of the defendant-tenant struck off under sub-section (5) of Section 13, and after obtaining an order in that respect, the conduct of the plaintiff landlord in such a case could not amount to a voluntary or intentional relinquishment of his right. It is not in dispute that the amount of rent has not been withdrawn by the landlord-plaintiff. It is not in dispute that the amount of rent has not been withdrawn by the landlord-plaintiff. Not only that, even the application for withdrawal was submitted by him much latter, after the trial court as well as the appellate court found the alleged default of the defendant proved and struck off his defence against eviction under sub section (5) of Section 13. Once the order under Section 13 (5) was passed, thereafter nothing further was to be done by the landlord in that matter and he was certainly entitled to the amount of rent deposited by the tenant. As such the submission of an application by the landlord for withdrawal of rent at such a stage when the defence of the defendant has already been struck off by the courts below, would not affect the rights of the plaintiff landlord regarding the application of the provisions of Section 13(5) of the Act. In this case as the order under Sec. 13(5) has already been passed, it is not necessary for me to decide the question as to whether mere filing of an application for withdrawal of the amount of rent by the landlord can constitute waiver of the right of the plaintiff under Section 13 (5), although it is fully established that in case the plaintiff knowingly withdraws voluntarily without any demur, the amount of rent deposited by the tenant beyond the period prescribed under Section 13 (4) , before moving the court for striking off the defence of the tenant under Sec. 13(5) of the Act, then such a conduct on the part of the plaintiff would undoubtedly constitute a waiver of the right of the landlord in this respect. But in the present case, even the application for withdrawal of the amount of rent was submitted by the landlord after the order striking off the defence of the defendant in respect of eviction was upheld by the first appellate court. I am, therefore, unable to accept the contention of the learned counsel for the petitioner that the conduct of the landlord may be construed so as to constitute waiver. 16. Lastly, it was argued by the learned counsel for the petitioner that there was no default because the tenancy was according to Vikram Samvat and as such the tenant was required to deposit the amount of rent according to Vikram samvat. 16. Lastly, it was argued by the learned counsel for the petitioner that there was no default because the tenancy was according to Vikram Samvat and as such the tenant was required to deposit the amount of rent according to Vikram samvat. No such objection was raised by the petitioner in the two courts below and such a question could not be allowed to be raised for the first time at the stage of revision petition. Learned counsel for the petitioner relied upon the decision of Manphool Chand Vs. Mohan Lal (7) in support of his contention that the rent could be deposited according to the month of tenancy which may be either according to the English calendar or Hindi calendar. In Manphool Chands case (supra) a specific order was passed by the court that future rent should be deposited by the 15th of the next month, although it was not made clear as to whethere the month was to be according to the English calendar or the Hindi calendar, In such circumstances, it was held as under:- "I am of the opinion that without any specification in the order the "month" for which the rent was to be deposited must be taken to be the month of tenancy which is current when the order is passed." In the present case, the trial court did not pass any order regarding payment of future rent by the tenant. But the order passed on August 2, 1976 clearly shows that the amount of rent and interest thereon from March 17, 1973 upto July 16, 1976 was determined and the tenant was directed to make payment of or deposit the amount so determined upto August 17, 1976. The provisions of Section 13(4) of the Act do not contemplate that the court should give any direction for depositing the future rent month by month. The statute itself makes provisions under Sub-section (4) of Section 13 that the tenant shall continue to deposit in court or pay to the landlord, month by month, the monthly rent subsequent to the period upto which the 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 the rent is determined by the court. In the order dated August 2, 1976, the court had expressly directed the tenant to make payment of the arrears of rent for a period of 40 months from March 17. 1973 to July 16, 1976. Thus it is abundantly clear that future rent was to be paid during the pendency of the suit, in accordance with Section 13(4), for the period from July 17, 1976 to August 16, 1976 and so on, from month to month. In the instant case, the court having specified that arrears of rent were calculated according to the Gregorian calendar for a period of 40 months, it would not be possible for this Court to entertain the contention of the learned counsel for the petitioner that the month should recounted according to Hindi calendar. I may also refer to the fact that the defendant himself clearly stated while depositing the rent in the Court that Rs. 26/- were deposited for the period of two months from July 17, 1976 to September 16, 1976, the tender receipt in respect of which is available at page 23/1 of the record of the trial court, Thus, it is apparent that the defendant himself intended to deposit rent according to the Gregorian calendar from July 17, 1976 to August 16,1976 and then for the next month upto September 16, 1976. All payments made by the tenant during the pendency of the suit support the fact that rent was deposited and was intended to be deposited by him in the trial court according to the Gregorian calendar. The argument which has now been advanced by the learned counsel in this respect, therefore, is merely an after thought and cannot be entertained. No other argument was made before me. 17. The revision petition has no force and is dismissed. The parties are left to bear their own costs of the proceedings in this court.