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1986 DIGILAW 729 (RAJ)

Bhagirathmal v. Gujarmal

1986-10-24

MOHINI KAPUR

body1986
MOHINI KAPUR, J—The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) was amended in the year 1975 and Section 13-A of the Act, as introduced by the Amendment Act of 1965, came to be amended by an Ordinance issued on 29th September, 1975 which was replaced by the Rajasthan Premises (Control of Rent and Eviction) Amendment Act, 1976. This Section has to be considered in this revision. 2. The facts of the case may be looked into for the purpose of deciding the present matter. A suit for eviction was instituted by the non-petitioners against the petitioner much before 1975 on the ground that the petitioner had made defaults in payment of rent and also on the ground of personal necessity of the plaintiff. The rent of the premises was said to be Rs. 50/- p.m. The suit proceeded and by its order dated 18th May, 1971 the trial Court struck out the defence of the petitioner. Thereafter, the suit came to be decided on 6th October, 1975 and the trial Court held that the rent of the premises was Rs 20/- p.m. and that the land lord had failed to prove his necessity for the suit premises. However, a decree for eviction was passed on the ground that the defence of the tenant had already been struck out. Against this decree, the petitioner filed an appeal before the learned District Judge on 28th October, 1975. He also submitted an application in which he did not mention the provision of law under which he was moving the application but he stated that Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 had been amended by Ordinance No. 26 of 1975 and that in accordance with it the rent of the disputed premises, at Rs. 20/- per month may be determined alongwith interest so that he may deposit the same. The plaintiff landlord also filed an appeal against the judgment and decree of the trial Court dated 6th October, 1975 as he was aggrieved by the rate at which the rent was decreed. The appellate Court on the appeal of the land lord remanded the case to the trial court for deciding the question of comparative hardship of the parties in accordance with the amended Section 14 of the Act. The appellate Court on the appeal of the land lord remanded the case to the trial court for deciding the question of comparative hardship of the parties in accordance with the amended Section 14 of the Act. The petitioners appeal came to be heard on 19th April, 1982 and the appellate Court observed that the judgment and decree of the trial Court had already been set aside in the appeal of the landlord and the appeal of the petitioner had become infructuous and at the same time he sent the application of the petitioner dated. 28th October, 1975 to the trial Court for deciding the same in accordance with law. In this manner, the application came before the trial Court namely, Additional Munsif, Alwar who by his order dated 6th December, 1982 rejected the application. An appeal filed by the petitioner before the Additional District Judge No. 1, Alwar was also dismissed by his order dated 3rd March, 1986. This order has been challenged in the present revision. 3. The application which was moved by the petitioner on 28th October, 1975 is relevant and it may be reproduced here. An appeal filed by the petitioner before the Additional District Judge No. 1, Alwar was also dismissed by his order dated 3rd March, 1986. This order has been challenged in the present revision. 3. The application which was moved by the petitioner on 28th October, 1975 is relevant and it may be reproduced here. It reads as under :- ^^Jhekuth] mijksä vuqoku dh vnkyr Jheku~ esa vkt nk;j dh tk jgh gS jktLFkku izsfelst js.V ok ,fDolu d.Vªksy vf/kfu;e uEcj 26 lu~ 1975 ls rjehe dj fn;k x;k gS vkSj mä rjehe rkjh[k 29-9-75 ls jktLFkku esa izHkko vkbZ gSA mä vf/kfu;e dh nQk 8 ds }kjk ewy vf/kfu;e dh /kkjk 13 O;kid :i ls rjehe dh xbZ gSA vkSj mlds ckn rjehe ubZ lc nQk 4-6-77 tksM+h xbZ gSA vkSj mlds ckn rjehe ubZ lc nQk 4-6-77 tksM+h xbZ gS fd ftuds vUrxZr rjehe kqnk nQk 13 ds rgr eqnk;yk vihyk.V gLc tsy nj[okLr isk djrk gS %& ¼1½ ;g gS fd v/khuLFk U;k;ky; us xyr o cstk rjhds ls 520 #i;k fdjk;k ckdh ekudj vkSj bl vk/kkj ij fgQktr ekudj xyr fMØh nh gSA ftlds eqrkfyd vihyk.V us vihy nk;j dhA ¼2½ ;g gS fd eqnk;yk vihyk.V eqnbZ jsLiksaMsaV dk ckjg 20@& #i;k ekgokj ls tks Hkh fdjk;k o C;kt gS mldks r; djokuk pkgrk gSA vkSj blds fy, Jheku~ ls izkFkZuk djrk gS fd mä jde fdjk;k e; C;kt ds eqnbZ jsLiksaMsaV ls ckjg 20@& #i;k izfrekg ds fglkc ls fglkc ysdj r; dj fn;k tkos tks eqnk;yk vihyk.V vnkyr esa tek djokus ds fy, rS;kj gSA vr% izkFkZuk gS fd mä vf/kfu;e ds izko/kkuksa ds rgr tks Hkh fdjk;k cdk;k gks mldh fufpr jkfk r; QjekbZ tkos vkSj eqnk;yk vihyk.V ls mls vnkyr esa tek djokyh tkosA vihyk.V vkKk gksus ds ckn mä jde fdjk;k e; oLrk vnkyr esa vkKkuqlkj tek djok nsxkA izkFkhZ& HkkxhjFk iq= >qaFkkjke oS;] fuoklh vyoj] ekSgYyk ekyuksa dh xyh] rglhy o ftyk vyoj vihyk.V lk;y fnukad % 28-10-1975 4. Now it has to be seen what is the reason given by the courts below for refusing the application moved by the petitioner. As seen above, in the application it has been mentioned that sub-clause 4, 6 and 7 of Section 13 had been amended on basis of which the petitioner wanted that rent payable by him should be determined. Now it has to be seen what is the reason given by the courts below for refusing the application moved by the petitioner. As seen above, in the application it has been mentioned that sub-clause 4, 6 and 7 of Section 13 had been amended on basis of which the petitioner wanted that rent payable by him should be determined. Referring to these provisions, the learned trial court considered the contention of the petitioner that this application may be treated as an application under Section 13-A of the Act, but he held that this was not permissible. The court also held that on 14-11-1970 the petitioner had already moved an application under Section 13(4) of the Act which had been refused and the same had also been challenged without success by the petitioner in an appeal, therefore, the rent could not be determined on a similar application filed subsequently. He observed that the application dated 28th October, 1975 had already been decided earlier and as such rent could not be determined on the basis of the subsequent application. 5. The matter in this case, according to me, depends upon whether the subsequent application can be said to be an application under Section 13-A of the Act or not? It is necessary to go through the application dated 14-11-1970 which the petitioner had moved earlier. In this application, it has been mentioned that it was presented under the provisions of Section 13(4) of the Act. He mentioned that the premises were taken on rent at Rs. 20/- p.m. and not at Rs. 50/- per month and that a rent note was executed on 20-12-1967. As regards the amount of rent due, he stated that he gave a sum of Rs. 500/- to the original land lord Kanhaiya Lal for his treatment as he was seriously ill, besides Rs. 40/. In this manner he had paid a sum of Rs. 540/- towards the rent. In this background, he requested the court to determine the rent due with interest and allow a period of two months to deposit the same. 6. I have to now consider the contentions advanced on behalf of both the sides and then look into the provisions of Section 13-A of the Act. It is also to be seen whether the application dated 28-10-1975 can be said to be an application under Section 13-A of the Act. 6. I have to now consider the contentions advanced on behalf of both the sides and then look into the provisions of Section 13-A of the Act. It is also to be seen whether the application dated 28-10-1975 can be said to be an application under Section 13-A of the Act. Section 13-A of the Act reads as under:- "Section 13-A. Special provisions relating to pending and other matters-(Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Amending Ordinance or in any other law.) (a)- no court shall, in any proceeding pending on the date of commencement of the (Amending Ordinance) pass any decree in favour of landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applied under clause(b) and pays to the land lord, or deposits in court, within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause; (b)- in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commencement of the (Amending Ordinance) notwithstanding any order to the contrary, determine the amount of the rent in arrears upto the date of the order as also the amount of interest thereon at 6% per annum and costs of the suit allowable to the land lord; 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 aforesaid, the proceeding shall be disposed of as if tenant had not committed any default; (c)-the provisions of clause (a) and(b) shall mutatis mutandis apply to all appeals, or applications for revision, preferred or made, after the commencement of the (Amending Ordinance) against decrees for eviction passed before such commencement with the variation that in clause (b), for the expression from the date of the commencement of the Amending Ordinance", the expression "from the date of the presentation of the memorandum of appeal or application for revision" shall be substituted; (d)-....... (e)-....... (f)-....... (e)-....... (f)-....... Explanation- For the purpose of this section- (a)-"Amending Ordinance" means the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 and, (b)-"Proceeding" -means, suit, appeal or application for revision." 7. Learned counsel for the petitioner has contended that the amended Section 13-A as introduced in the year 1975 was applicable to all pending proceedings in which the suit was for eviction of a tenant on the ground of nonpayment of rent. Under Section 13-A, the tenant has to make an application within 30 days from the date of the commencement of the Ordinance (which is 29-9-1979) upon which the court has to determine the rent payable alongwith interest and cost. According to him, the application moved on 28-10-1975 was under Section 13-A of the Act and the prayer was also in accordance with these provisions and merely because Section 13(4), (6), (7) have been mentioned in the body of this application, it would have become an application which had already been made and decided under the law. In the application it has been mentioned that because of the amendment in law this application is being moved and the intention is clear that the application was under Sec. 13-A. In support of his contention, he has placed reliance on Sanwarmal Vs. Murarilal(l) in which it has been held that the intention of the legislature while enacting amended section 13-A of the Act is that an application has to be moved within 30 days of commencement of the Amending Ordinance. Thus Section 13-A of the Act cannot be read so as to include in it an application made before the coming into force of the Amending Ordinance. In this case, the facts were that on the first date of hearing, the tenant moved an application that he was prepared to deposit the rent due alongwith interest and costs of the suit. The Court permitted the tenant to deposit the rent. In 1972, when the appeal was pending before the lower appellate Court the land lord moved that the defence of the tenant against eviction be struck out and to this application the tenant replied on 1-9-1972 that he had deposited the arrears of rent alongwith interest and was, thereafter depositing rent every month and that he was always ready and willing to deposit the rent. Subsequently, when Section 13-A came to be amended in 1975 the tenant did not move an application within 30 days of the coming into force of the Amending Ordinance but took plea that his reply dated 1st October, 1972 submitted to the application of the landlord seeking to strikeout his defence should be taken as an application under Section 13-A of the Act, but this contention was repelled. It was held that under Section 13-A, the defendant has to move a fresh application within 30 days, as is provided in this provision, and if he fails to do so, then it cannot fall back upon any earlier application made by him before the Amending Ordinance came into force. This answer was given in a reference by a Single Judge to a larger Bench. This, under Section 13-A of the Act, the defendant has to move a fresh application within 30 days of 29th September, 1975 and cannot fall back upon any application moved earlier. 8. On the basis of this decision, it is contended that when an application moved prior to the amendment in 1975 cannot be taken to be an application under Section 13-A of the Act then the courts below have erred in taking this view and treating the petitioners application dated 14-11-1970 as an application under Section 13-A of the Act. 9. The learned counsel for the non-petitioners has contended that there is a reason why the petitioner did not mention in his application that it was under Section 13-A of the Act. According to him, the petitioner had denied the tenancy and had not accepted the rate of rent which was alleged by the non-petitioners. According to him, when the rate of rent was in dispute then it was to be decided under Section 13(7) of the Act and benefit of Section 13-A cannot be given to the tenant. It is also contended that Section 13-A is meant for bonafide tenants who are prepared to pay rent, costs and interest and not to those who are denying the tenancy and who have defaulted in payment of monthly rent on account of which his defence has been struck out. It is also contended that Section 13-A is meant for bonafide tenants who are prepared to pay rent, costs and interest and not to those who are denying the tenancy and who have defaulted in payment of monthly rent on account of which his defence has been struck out. It is also argued that the jurisdiction of this Court in a revision is limited and it should not interfere with the order of the Court below unless there is an illegality in exercise of jurisdiction of the Court. 10. Three questions arise before me. The first is whether the application dated 28-10-1975 moved by the petitioner can be said to be an application under Section 13-A of the Act. Second, if the application is treated to be under Section 13-A then whether the court below are right in holding that the earlier application dated 14-11-1970 having been decided, a subsequent application under Section 13-A could not have been allowed. Third, whether this court should interfere in revision. 11. The application dated 28-10-1975 has been reproduced above in full and before looking into the averments in this application it may again be remembered that the suit for eviction was on the ground of default in payment of rent and personal necessity. It may be remembered that the original land lord was one Kanhaiya Lal and the suit for eviction was instituted after his death. The right of the non-petitioner to bring a suit was contested on the ground that one Shanti Devi was also the heir of Kanhaiya Lal. The trial Court had decided the suit on 6-10-1975 and when the application was moved on 28-10-1975 there was already a finding of the court that the rent of the premises was Rs. 20/- p.m. and not Rs. 50/- p.m. The issue about the necessity of the plaintiff had been decided against him. The decree for eviction was merely on the ground of default in payment of rent which was on account of the fact that the defence against eviction had been struck out. In this situation the decree remained simply on the ground of default in payment of rent and if the provision of Section 13-A can come to the aid of the petitioner, then the decree was to be set aside as soon as the petitioner deposited the rent, costs and interest as determined by the Court. 12. In this situation the decree remained simply on the ground of default in payment of rent and if the provision of Section 13-A can come to the aid of the petitioner, then the decree was to be set aside as soon as the petitioner deposited the rent, costs and interest as determined by the Court. 12. In the application, the petitioner has referred to the provisions of amended Section 13(4), 13(6) and 13(7) and has moved the application under the amended provisions by saying that the petitioner has preferred an appeal against the decree for eviction passed by the court and that he is prepared to pay the rent and interest which may be determined by the court at the rate of Rs. 20/- p.m. and he may be asked to deposit the same. The substance of the application is unambiguous which is that the Court in view of the amended provisions of the Act should determine the rent due with interest and the petitioner may be asked to deposit the same. The fact that it has been moved within 30 days of the coming into force of the amended provisions shows that the petitioner was aware that he has to file the application within a particular period and such a period has been prescribed only in Section 13-A of the Act. 13. In Ganga Ram vs. Devi Singh (2) this court on the basis of the prayer made in the application, decided as to under what provisions the application had been moved. At the stage, the petitioner had moved the application in this case, there was no occasion for moving an application under Section 13(4), 13(6) and 13(7). In fact, Section 13(4), 13(6) and 13(7) of the Act do not contemplate the moving of an application by the tenant at all. Merely because this provision has been mentioned in the application it would not mean that the application is under this provision. The presenting of an application is contemplated only by Section 13-A(b) of the Act, the timing of the application, the prayer made in it go to show that the intention of the petitioner was to move the application under Section 13-A of the Act, get the rent determined pay the cost and interest and get the suit for eviction dismissed as it was only on the ground of default in payment of rent. 14. 14. In my view the application of the petitioner though it does not state specifically that it is under Section 13 A of the Act has to be treated as an application under this provision looking at the time when it was presented and he intention with which it was presented. 15. The earlier application which was moved on 14th November, 1970 cannot be treated an application under Sec. 13-A of the Act so as to say that the application dated 28-10-1975 is a subsequent application under the same provisions which cannot be entertained. 16. Section 13-A is to apply notwithstanding anything to the contrary in the Act as it existed before the commencement of the Amending Ordinance. Any orders passed under the Act prior to the amendment cannot come in the way of applicability of Section 13-A of the Act. 17. The requirements of Section 13-A of the Act are : (i)- a suit, appeal or revision is for eviction on the ground of non-payment of rent, (ii) the suit, appeal or revision should be pending on 29-9-1973, the date on which the Amending Ordinance came into force, (iii)- the tenant has moved an application under Clause (b) of Section 13-A of the Act within 30 days of 29-9-1975, (iv)-he has to pay to the land lord or deposit in Court arrears of rent, interest and full costs of the suit as may be directed by the Court, (v)- this should be deposited within the time fixed by the Court which shall not exceed 90 days from the date of determination, (vi)- when the payment is made as aforesaid then the proceeding shall be disposed of as if tenant had not committed any default. When all these provisions are complied with, then no decree on the ground of non-payment of rent can be passed by any court. If there are other grounds on which the land lord has claimed eviction then the suit on those grounds shall continue but so far as eviction on the ground of default is concerned, it will be taken as if the tenant has not committed any default. 18. In the present case all the conditions necessary for the applicability of this provision exist. The order passed for striking out his defence cannot come in his way in taking away the benefit of this provision. 18. In the present case all the conditions necessary for the applicability of this provision exist. The order passed for striking out his defence cannot come in his way in taking away the benefit of this provision. The proceedings were pending when the Amending Ordinance came into operation and the suit was for eviction on the ground of non-payment of rent. The petitioner applied under Clause (b) of Sec. 13-A within 30 days and thereafter it was for the Court to determine the rent, interest and costs of the suit and fix a time within which it was to be paid. It was the duty of the Court to do so and I am constrained to observe that the application dated 28-10-1975 which ought to have been decided by the appellate court before which the appeal was pending was not decided for a considerable time, namely seven years and even after that it was sent to the court below for determination The life of Sec. 13-A itself can at best be said to be 30 days plus the time taken for determining the amount payable, and to this a maximum time of 90 days can be added to enable the tenant to deposit the amount, but in this case 11 years have passed and still this application has not seen the last because it will have to go before the court below to determine the amount of rent payable alongwith in interest and full costs of the suit before the petitioner is given time to deposit the same. 19. One contention raised by the learned counsel for the non-petitioner is that in the application dated 28-10-1975 the petitioner has not stated that he is also prepared to pay the costs of the suit as such this should not be taken to be sufficient compliance of Section 13-A of the Act. For this purpose, I have again gone through the provisions of Section 13-A which provide that the tenant has to move an application under Section 13-A(b) and signify his willingness to pay to the land lord, the amount of arrears of rent, interest thereon and the cost of the suit has to be determined by the Court. It is not necessary for the tenant to mention in the application that he is prepared to pay arrears of rent, interest as well as the costs. It is not necessary for the tenant to mention in the application that he is prepared to pay arrears of rent, interest as well as the costs. It is enough if he says that he is moving the court under Section 13-A and the amount payable by him may be determined. Failure to say that he is also prepared to pay the costs will not in any manner affect the validity of the application under Section 13-A. 20. This is clearly a case where both the courts below have committed a jurisdictional error in as much as they have failed to exercise a jurisdiction vested in them. The courts below have refused to entertain the application dated 28-10-1975 by saying that such an application had already been moved on 14-11-1970 and decided. The amended provision of Section 13-A was not even in existence on the date the earlier application was moved. The courts below have thus failed to entertain the application dated 28-10-1975 and this amounts to refusal to exercise jurisdiction which requires interference in this revision. 21. As discussed above, my finding is that the application of the petitioner moved on 28-10-1975 was actually an application under Section 13-A of the Act and it has to be treated as such and it could not be refused merely on the ground that earlier the petitioner has moved an application dated 14.11.1970 under the provisions-of the old law. The court has to proceed in accordance with the Section 13-A of the Act which should now be done forthwith. 22. Accordingly this revision is accepted and the orders passed by the courts below are set aside. The record of the case be sent back with a direction to the trial Court namely Additional Munsif No. 1, Alwar to determine the rent under Section 13-A of the Act on the application of the petitioner moved on 28-10-1975 and determine the arrears of rent, interest and as well as the costs and fix a time within which the petitioner is to pay to the land lord or deposit in court. As the matter is very old this should be done within a period of 30 days from today. It may also be clarified that on the date the application under section 13-A was moved the finding of the Court was that the rate of rent was Rs. As the matter is very old this should be done within a period of 30 days from today. It may also be clarified that on the date the application under section 13-A was moved the finding of the Court was that the rate of rent was Rs. 20/-p.m. The Court should, therefore, determine the rent at this rate. If subsequently, it is found that the rent payable is more, a decree for arrears of rent can be passed. The parties are directed to appear in the court of Addl. Munsif No 1 Alwar on 10-11-1986.