Jag Mohan v. Gani — 1985 DIGILAW 784 (RAJ)

JUDGMENT : 1. These two appeals arises out of the single judgment and decree of the learned Civil Judge, Churu dated 7.1.84, by which the decree of the Munsif, Churu, dated 23.7.80 has been reversed and the matter has been remanded to the trial Court. These appeals are, therefore, being disposed of by single order. 2. The respondent Gani had taken on contract a shop situated at Churu on rent at the rate of Rs. 25/- per month from Shri Rameshwarlal, the predecessor-in-title of the plaintiffs-appellants and proforma respondent Nos. 2 and 3 with effect from 20.4.71 under a rent note of the same date. Later, Rameshwarlal died and the plaintiffs-appellants and the respondent Nos. 2 and 3 became the landlords. The plaintiffs filed a suit for ejectment against the defendant for ejectment on the grounds of default, having materially altered the premises and for using it for purpose other than the one for which it was let out. This suit was filed on 8.1.75 before the Munsif, Churu. The first date fixed in the suit was 13.2.75. On that day the defendants-tenant moved an application that the rent from 1.12.72 to 31.3.75 at the rate of Rs. 15/- per month was due and that he was ready to deposit that amount totalling Rs. 420/- and the Court directed that the amount may be deposited in accordance with law. A sum of Rs. 420/- was thereupon deposited by the defendant on 14.2.1975. As according to the plaintiffs the defendant was already a defaulter and did not deposit the rent in accordance with Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act (hereinafter referred to as the Act) nor did he further deposit the rent month by month, the plaintiff moved an application under Section 13(5) of the Act on 16.5.77, praying that the defence of the defendant may be struck off. After hearing the arguments of the parties the defence against the eviction was struck off by order dated 31.10.77. The matter then proceeded further. The issues were framed on 16.3.78 and were later amended on 21.12.79. After taking evidence of the parties and hearing the arguments the learned Munsif decreed the suit for ejectment as well as for arrears of rent in para i.e. at the rate of Rs. 15/- per month only, by its judgment and decree dated 23.7.80. The issues were framed on 16.3.78 and were later amended on 21.12.79. After taking evidence of the parties and hearing the arguments the learned Munsif decreed the suit for ejectment as well as for arrears of rent in para i.e. at the rate of Rs. 15/- per month only, by its judgment and decree dated 23.7.80. Aggrieved of this both the parties filed appeals before the learned District Judge. The plaintiff wanted the decree for arrears of rent at the rate of Rs. 25/- per month, whereas the defendant challenged the decree for ejectment. 3. The appeals came to be heard by the learned Civil Judge, Churu, who by a single judgment dated 7.1.84 accepted the defendant's appeal and remanded the case to the trial Court holding that the defendant had raised a dispute about the rate of rent and, therefore, under the provisions of Section 13(4) of the Act, as it then stood, the Court was bound to determine the amount payable by the tenant on account of arrears of rent and interest but the Court failed to determine the same and also wrongly struck off the defence of the defendant against the ejectment even in the absence of the determination under Section 13(4) of the Act. He, therefore, directed that Court should proceed to decide the application of the defendant dated 13.2.75 disputing the amount of rent and thereafter, should proceed to decide the suit in accordance with law. The order striking off the defence was also set aside. He further directed that the parties should also be given an opportunity to produce evidence on the amended issue No. 2(B) and then this issue should also be decided in accordance with law. The learned Civil Judge, however, dismissed, the plaintiffs' appeal. Aggrieved of this dismissal of their appeal and acceptance of the defendants' appeal, the plaintiffs' have filed these two appeals before this Court. 4. I have heard the learned counsel for the parties and have gone through the record. 5. It is not in dispute before me that this case will be governed by the provisions of Section 13(4) of the Act, as they stood before the amendment and sub-sections (4), (5) and (6) of Section 13 read as under:- "(4). 4. I have heard the learned counsel for the parties and have gone through the record. 5. It is not in dispute before me that this case will be governed by the provisions of Section 13(4) of the Act, as they stood before the amendment and sub-sections (4), (5) and (6) of Section 13 read as under:- "(4). In a suit for eviction on the ground set forth in clause (a) of sub-section (i), with or without any of the other grounds referred to in that sub-section the tenant shall, on the first date of hearing or on or before such date as the Court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the Court, deposit in Court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, 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 the deposit or payment is made together with interest on such amount calculated at the rate of six per cent 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 or each succeeding month a sum equivalent to the rent at that rate. (5) If in any suit referred to in sub-section (4) there is any dispute as to amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act. The amount to be deposited or paid to the landlord by the tenant, within 15 days from the date of such order in accordance with the provisions of sub-section (4). (6) If a tenant fails to deposit or pay any amount referred to in sub-section (4) or sub-section (5) 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. (6) If a tenant fails to deposit or pay any amount referred to in sub-section (4) or sub-section (5) 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. The contention of the learned counsel for the plaintiffs-appellants is that in this case, the defendant never raised any dispute regarding the rate or amount of the rent due and had failed to make a deposit as envisaged under Section 13(4) and had also failed to deposit the rent month by month in time, his defence was rightly struck off by the trial Court by its order dated 31.10.77 and the plaintiffs had clearly proved that the defendant was a defaulter, in these circumstances the trial Court was perfectly justified in decreeing the plaintiffs suit for ejectment and the learned Civil Judge wrongly set aside that decree, by holding that the dispute about rent had been raised and, therefore, it was for the Court to determine the rent under Section 13(4) of the Act and without such determination neither the defence of the defendants against the eviction could have been set aside nor the suit for ejectment could have been decreed. The learned counsel for the appellants states that on the first date of hearing all that the defendant did was to move an application expressing his desire to deposit the arrears of rent from 1.12.72 to 31.3.75 at the rate of Rs. 15/-. He neither raised a dispute about the rate of rent nor did he deposited the whole amount as was required to be deposited under Section 13(4), inasmuch as under that Section the tenant was required to deposit in Court or pay to the landlord the amount calculated at the rate at which it was last paid 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 the deposit or payment is made together with interest on such amount calculated at the rate of 6% per annum from the date when any such amount was payable upto the date of deposit. He further pointed out that in the application it was never contended by the defendant that the rent last paid was at the rate of Rs. He further pointed out that in the application it was never contended by the defendant that the rent last paid was at the rate of Rs. 15/- not did he deposit the interest on the rent which according to him was due from 1.12.72 to 31.3.75. He merely deposited the rent for this period as this deposit could not be deemed to be a deposit at the rate of Rs. 15/- and, therefore, under clause (4) of Section 13 of the Act and in default of compliance of Section 13(4), the defence against the eviction was rightly struck out. He further pointed out that even at the time when the plaintiff prayed for the defence against the eviction of the defendant being struck off the defendant never raised any plea to the effect that he had disputed the rate of rent and that the amount had not been determined by the Court and in these circumstances, at the stage of appeal against the decree, the learned Civil Judge should not have set aside the decree on the ground that a dispute about the rate of rent has been raised and the Court failed to determine the amount payable as required under clause (5) of Section 13 of the Act. He also submitted that even in the written statement which was later filed by the defendant, no reference to earlier application under Section 13(4) was made. The learned counsel for the appellants-plaintiffs, therefore, urged that the order of remand may be set aside and the decree passed by the trial Court may be affirmed. 7. On the other hand, the learned counsel for the respondents-tenants urged that when the defendant-tenant filed the application on 13.2.75 asking permission to deposit the arrears of rent at the rate of Rs. 15/- per month, it clearly amounted to raising a dispute, inasmuch as, in the plaint the plaintiff had claimed rent at the rate of Rs. 7. On the other hand, the learned counsel for the respondents-tenants urged that when the defendant-tenant filed the application on 13.2.75 asking permission to deposit the arrears of rent at the rate of Rs. 15/- per month, it clearly amounted to raising a dispute, inasmuch as, in the plaint the plaintiff had claimed rent at the rate of Rs. 25/- per month and as soon as the dispute came before the Court, there was an obligation on the part of the Court to determine the same as required by Section 13(5) of the Act because that section gives a mandate that if in any suit referred to in sub-section (4) there is any dispute as to amount of rent payable by the tenant, the Court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant........'. Now, when such dispute had already existed to the notice of the Court which permitted the deposit in accordance with law, it was duty of the Court to determine the amount payable by the defendant on the account of the rent and if the Court failed to do that, the defendant cannot be deprived of the benefit which was available to him under Section 13(4) because if the amount was so determined and the tenant deposited the same in accordance with sub-section (5) of Section 13, no decree of eviction on the ground specified in clause (a) of sub-section (1) could be passed against the defendant but by not determining the amount as required by sub-section (5) of Section 13, the trial Court wrongly deprived the defendant of this benefit and the learned Civil Judge was perfectly justified in restoring the position as it stood when the application for deposit of the rent was moved on 13.2.75. He, therefore, prayed that no interference should be made with the order of the learned Civil Judge. 8. I have given my careful consideration to the rival contentions. 9. He, therefore, prayed that no interference should be made with the order of the learned Civil Judge. 8. I have given my careful consideration to the rival contentions. 9. The main contention of the learned counsel for the appellants is that under Section 13(4) as it then stood, it was the duty of the defendant if he wanted relief against ejectment to deposit in Court or pay to the landlord, on the first date of hearing or on or before such date as the Court may, have on an application made to it, fixed in this behalf or within such time not exceeding two months, as may be extended by the Court, an amount calculated at the rate of rent at which it was last paid, 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 the deposit or payment is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable upto the date of deposit and he has also thereafter, to continue to deposit or pay month by month by the fifteenth of each succeeding month a sum equivalent to the rent at the rate. But in this case, the defendant did not comply with this condition. He merely expressed his desire to deposit the rent from 1.12.72 to 31.3.75 amounting to Rs. 420/- on 13.2.75. He did not pay any interest on the arrears as required under Section 13(4) nor did he state that he was disputing the rate of rent because only when such dispute was raised then sub-section (5) of Section 13 would have come into play and the Court would have been required to determine the amount of the rent payable by the tenant. In these circumstances, the learned Civil Judge, according to the learned counsel for the appellants was not justified in holding that a dispute about rent had been raised on 13.2.75 and the Court was bound to determine the amount and then along the defendant could be required to deposit the amount so determined and also to go on depositing a future rent as required under Section 13(4) of the Act. He further urged that in this case the tenant even did not regularly deposit the future rent after 13.3.75 and had thus committed default even under Section 13(4) and, therefore, his defence was struck off by order dated 31.10.77. Even then the defendant did not raised and dispute about the rate of rent. In these circumstances, at the stage of the appeal he should not have been allowed to raise this dispute before the learned appellant Court. According to the learned counsel for the appellants a mere desire to deposit the rent at the rate chosen by the tenant does not amount to raising of a dispute about the amount payable on account of rent. He, therefore, urges that the order of remand passed by the learned Civil Judge may be set aside and the decree passed by the trial Court may be restored. 10. On the other hand, the learned counsel for the respondents urged that learned Civil Judge has merely interpreted the provisions of Sections 13(4) and (5) of the Act as it then stood and he was justified in holding that when a dispute about rent had already been raised, it was incumbent upon the trial Court to determine the amount of rent payable by the tenant under Section 13(4). 11. I have already re-produced that the relevant provisions of Sections 13(4), (5) and (6) above and a bare perusal of these provisions would go to show that if the tenant does not dispute the rate or amount of rent payable, he has to move an application for depositing the amount of the arrears of rent at the rate at which it was last paid along with interest as provided under sub-section (4) of Section 13 and this has to be done at the first date of hearing or within such time as the Court may allow not exceeding two months, as may be extended by it but if the tenant deposits the rate of rent or the amount of arrears then the duty has been cast upon the Court under sub-section (5) of Section 13 to determine having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant within 15 days from the date of such order. 12. 12. Now, no particular mode of raising a dispute about the rate or amount of the rent has been provided for under Section 13. All that Section 13(5) says is if in a suit referred to under sub-section (4), there is any dispute as to the amount of rent payable by the tenant, the Court shall determine.......Therefore, all that is required is that it should be brought to the notice of the Court that there is some dispute about the amount of the rent payable by the tenant and as soon as this comes to the notice of the Court the duty has been cast upon the Court itself to determine the amount. It does not require the tenant-defendant to make an application requesting the Court to determine the amount. In the present case, it is beyond doubt that in the plaint the plaintiff claimed rent at the rate of Rs. 25/- per month, whereas the defendant in his application dated 13.2.75 alleged that the monthly rent was Rs. 15/- only and as the plaintiff has refused to accept the rent, he was depositing the sum of Rs. 420/- being rent for the period 1.12. 72 to 31.3.75 and thus he clearly raised a dispute about the rate of rent. In the application he did not say that he was depositing the rent in accordance with Section 13(4) nor did he say that he was also depositing or was ready to deposit the interest payable under Section 13(4), therefore, this application cannot be deemed to be an application under Section 13(4) but could only amount to be one under Section 13(5) raising a dispute about the amount of the rent. That being so, the duty was cast upon the Court itself to determine the rent payable by the tenant in accordance with the provisions of Section 13(4) and on such determination of the rent only the tenant was required to deposit it within 15 days from the date of the order. If the Court failed to determine an amount payable by the tenant, the tenant was under no obligation to ask the Court to determine the amount. If the Court failed to determine an amount payable by the tenant, the tenant was under no obligation to ask the Court to determine the amount. It is further clear from sub-section (6) of Section 13 that if the tenant fails to deposit or pay any amount referred to in sub-section (4) or sub-section (5) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out. In this case, when the rate of the rent was in dispute, sub-section (4) of Section 13 was not at all applicable and only sub-section (5) of Section 13 was attracted and under that provision the tenant could have deposited the rent only after the Court had determined the same. When the Court failed to determine the amount of rent, the tenant cannot be said to have failed to deposit the same within the time allowed under sub-section (5) of Section 13 and his defence could not have been struck off. The order dated 31.10.77, striking off the defence of the tenant in these circumstances was entirely wrong. When the defence of the tenant could not be struck off and he could not be denied the benefit of sub-section (5) of Section 13 of the Act the only course open to the first appellate Court in these circumstances was to remand the case and relegate the parties to the position in which they stood at the time the application dated 13.3.75 was filed. In this view of the matter, the order passed by the learned Civil Judge cannot be said to be illegal or improper. 13. The learned counsel for the appellants had drawn my attention to two authorities of this Court reported in Achal Chand v. Hukam Kanwar, 1972 R.L.W. 444 and M/s. General Auto Agencies v. Hazari Singh, AIR 1976 Raj. 56 , but in my opinion, none of them is applicable to the facts and circumstances of the present case. 13. The learned counsel for the appellants had drawn my attention to two authorities of this Court reported in Achal Chand v. Hukam Kanwar, 1972 R.L.W. 444 and M/s. General Auto Agencies v. Hazari Singh, AIR 1976 Raj. 56 , but in my opinion, none of them is applicable to the facts and circumstances of the present case. In Achal Chand's case (supra), as a matter of fact, no dispute about the rate or amount of rent had been raised and in M/s. General Auto Agencies's case (supra), the three obligations of the tenant have been specified and it has been pointed out that it is for the tenant to take steps according to those obligations and it is not the duty of the plaintiff or the Court to point out as to what correct amount payable is ? On the other hand, I am of the opinion that Jagannath v. Janiram, AIR 1981 Raj. 233 , on which reliance has been placed by the learned counsel for the respondents is more akin to the facts and circumstances of the present case. In that case, it has clearly been stated that sub-section (4) of Section 13 of the Act is applicable to cases in which there is no dispute between the parties about the amount of rent payable by the defendant to the plaintiff-landlord. But in cases where there is a dispute about the amount of rent payable by the tenant sub-section (5) is attracted and in such cases, the Court is bound to determine the amount which is to be deposited by the tenant or to be paid by him to the landlord and the tenant is thereafter bound to deposit such amount within fifteen days from the date of the order of the Court determining the amount payable. It has further been pointed out that the provisions of sub-section (5) of Section 13 are mandatory in nature. 14. That being so, the order of remand passed by the learned Civil Judge does not call for any interference. However, the glaring indifference and inaction on the part of the tenant does appear to be responsible for this belated action of remand at this stage. 14. That being so, the order of remand passed by the learned Civil Judge does not call for any interference. However, the glaring indifference and inaction on the part of the tenant does appear to be responsible for this belated action of remand at this stage. The suit was filed in 1975 and the parties are being relegated to that position, now towards the end of 1981 i.e., after more than 10 years and in these circumstances I am included to award costs to the plaintiffs to compensate them for inconvenience caused to him. No doubt, it was the duty of the Court to determine the amount under Section 13(5) of the Act but nothing prevented the defendant from bringing it to the notice of the Court to do the needful. Even when the defence of the defendant was struck off he kept silent and did not approach the higher Courts to negative incorrect order. 15. In these circumstances, I dismiss these appeals with the modification to the effect that the costs hitherto incurred by the plaintiffs shall be borne by the defendant. 16. The parties are directed to appear before the Munsif & Judicial Magistrate, Churu on 6.1.1986 and learned Munsif would see that this old ejectment suit is disposed of as expeditiously as possible.Appeals dismissed.