Kesho Lal v. Smt. Chander Bai — 1988 DIGILAW 706 (RAJ)

JUDGMENT : 1. This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Udaipur No. 1, dated 27th of March, 1986. 2. The brief facts giving rise to this appeal are that a suit was filed in the Court of Munsif and Judicial Magistrate (North), Udaipur City, Udaipur by the plaintiff Smt. Chander Bai against the defendant-appellant for arrears of rent and eviction from the premises, on the ground of second default. 3. It is alleged that the defendant-appellant was admitted as a tenant on 1.1.1971 @ Rs. 25/- per month. The plaintiff's husband died on 6.6.1972 thereby she became owner of the premises. The plaintiff filed earlier suit for eviction on the ground of default but the defendant deposited the rent on the first date of hearing, therefore, the suit was dismissed under Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, on 19.2.1976 as such no decree for eviction was passed. Then present suit was brought by the plaintiff on the ground that the defendant has again committed a default by not paying the rent for 6 months and 15 days i.e. upto 14th of June, 1976, therefore, on account of this second default the plaintiff prayed that the defendant may be evicted from the premises. The defendant filed written-statement and submitted that he has never committed a default in payment of rent. It is alleged that the plaintiff deliberately did not accept the rent for the period from 1.11.1973 to 31.8.1971 on the ground that she wanted that the rent should be increased and earlier suit was filed by the plaintiff and the arrear of rent was deposited on the first date of hearing so the earlier suit was dismissed. 4. It is further alleged that defendant sent the rent by money order to the plaintiff but she did not accept. Thereafter, the rent was deposited under Section 19-A of the Act in the Court. 5. It is alleged that on account of depositing the rent under Section 19-A of the Act, the defendant is not a defaulter and as such no decree for eviction can be granted. On the basis of the pleading of the parties two issues were framed, namely : 1- vk;k izfroknh us fdjk;k vknk;xh esa f}rh; ckj fof/kd pqd dh gSA 6. On the basis of the pleading of the parties two issues were framed, namely : 1- vk;k izfroknh us fdjk;k vknk;xh esa f}rh; ckj fof/kd pqd dh gSA 6. The learned trial Court after recording necessary evidence and hearing both the parties accepted the suit of the plaintiff on the ground of the second default was committed. 7. Aggrieved against this, defendant preferred an appeal before the District Judge, Udaipur and learned Judge affirmed the findings of the trial Court and dismissed the appeal of the defendant. Hence, the present second appeal before this Court. 8. Mr. Parekh, learned counsel for the appellant has submitted that both the Courts below have completely lost sight of an important question that when the plaintiff has accepted the rent which was deposited by the defendant under Section 19-A, then the default if any stood condoned and no decree on the ground of second default can be passed by the Courts below. 9. Mr. Parekh, learned counsel submitted that the rent for period from July to December, 1976 was deposited in the Court under Section 19-A of the Act on 11.11.1976 vide Ex. A2, and, then amount of the rent was withdrawn by PW-1 Shri Ugar Singh, Advocate, on behalf of the plaintiff as her power of attorney-holder. In this connection learned counsel has invited my attention to the order-sheet dated 8.5.1981. Learned counsel submits that in view of the acceptance of the rent by the plaintiff's power of attorney-holder upto 13th April, 1981 without a demur that amounts to waiver and plaintiff cannot be evicted on that ground for committing the second default. 10. Learned counsel submitted that in order-sheet dated 8th of May, 1981 the rent which was found to be due was for a period from 1st June, 1976 to 13th April, 1981 i.e. of 59 months rent @ Rs. 25/- per month, i.e. Rs. 1,406/-. Against this rent for the period of 45 months amounting to Rs. 1,080/- was already deposited under Section 19-A of the Act and there remain a rent for remaining 14 months i.e. Rs. 336/-. This rent too was accepted by the Advocate Shri Ugar Singh which is apparent from the receipt (Ex. 5). In this receipt while accepting the rent for a period of 14 months i.e. Rs. 336/- plus interest Rs. 1,080/- was already deposited under Section 19-A of the Act and there remain a rent for remaining 14 months i.e. Rs. 336/-. This rent too was accepted by the Advocate Shri Ugar Singh which is apparent from the receipt (Ex. 5). In this receipt while accepting the rent for a period of 14 months i.e. Rs. 336/- plus interest Rs. 12,060/-, P.W. Shri Ugar Singh has made endorsement that this rent is accepted without prejudice to his rights. But he accepted the rent for a period of 45 months without any protest. 11. Therefore, learned counsel submits that by accepting the rent for a period of 45 days by PW-1 the plaintiff has waived the objection of the second default and on that basis a decree for default cannot be passed. 12. Mr. Gupta, learned counsel submitted that there is no question of waiver involved in the present case. Learned counsel submitted that the waiver is only contemplated under the Act under Section 18(D) i.e. plaintiff can waive his or her rights before filing of the suit by accepting the rent but once the suit has been filed, thereafter, if any rent has been accepted then that will not amount to the waiver under the Act. 13. Learned counsel further submits that even if for a moment this is accepted that it amounts to waiver then also so far as a rent for a period of 14 months is concerned that was not deposited by the plaintiff in time i.e. the rent for a period of 6 months was not deposited and that rent was accepted by the counsel Shri Ugar Singh PW-1 amounting to Rs. 348.60 under protest, therefore, at least for this period the defendant is a defaulter and he can be evicted. 14. Learned counsel submits that of course this was not pleaded in the plaint as the suit filed for the eviction of the plaintiff on account of the default of the rent for a period of 6 months from July 1976 and this default has been committed during the pendency of the suit, therefore, for that purpose Mr. Gupta moved an application under Order 6 Rule 17 of the CPC today for amending his plaint and permitting him to raise the new ground which has arisen during the course of the pendency of the suit. 15. Gupta moved an application under Order 6 Rule 17 of the CPC today for amending his plaint and permitting him to raise the new ground which has arisen during the course of the pendency of the suit. 15. The question before me is whether there was a waiver by the landlord-plaintiff by accepting the rent or not ? In view of the statement of PW-1 Shri Ugar Singh and the order-sheet of the trial Court dated 8th of May, 1981 it speaks volume that PW-1 Shri Ugar Singh who was a power-attorney holder of plaintiff accepted the rent for a period of 45 months without any protest, demur or reservation. This amounts to waiver of right of plaintiff-landlord and appellant cannot be evicted on the ground of second default. 16. Mr. Parekh, learned counsel has invited my attention to Jagan Nath v. Janiram, 1981 WLN 379. In this case the question was examined by Hon'ble Justice D.P. Gupta as he then was that whether the plaintiff-landlord can waive his right which is available under the Act. In the case it was observed as under:- "The decision of their Lordships of the Supreme Court in Lachoomal's AIR 1971 SC 2213 was followed by Jagat Narayan, Chief Justice as he then was, in Bundu v. Hashmat, AIR 1972 Raj. 238 . It was observed in that case that the Act was no doubt enacted to give protection to the tenants, who constituted a weaker section of the society, needing such protection and that such provisions of the Act which gave protection to the tenant cannot be allowed to be waived. But those provisions of the Act which conferred benefits upon the landlord could be waived by the latter. It was pointed out that there was no prohibition against contracting out of the statute so far as the provisions of Section 13(4) and (5) of the Act are concerned. But the provisions of sub-section (1) of Section 13 are couched in prohibitory language and a Court cannot pass a decree for ejectment of a tenant, so long as he is ready and willing to pay rent to the full extent allowable by the Act, unless one or other of the in the various clauses of sub-section (1) of Section 13 is specified. 17. 17. The learned Judge referred to the earlier judgment of this Court and following the observation in the case of Bundu v. Hashmat, AIR 1972 Raj. 238 accepted the contention that landlord can waive his rights. 18. Similarly, in Hukam Chand v. Madan Lal, 1985 RLR 633 ; Ratan Lal and Jethmal v. Ramlal, 1981 WLN 422 same view has been reiterated. The case of Bundu v. Hashmat, Appeal No. 377 of 1971 dated 25.1.1972) was affirmed by Division Bench of this Court. Similar view has also been expressed by Full Bench of Patna High Court in Bibi Amma Khatun and others v. Zahir Hussain and another, 1981 (1) RCJ 426. In this case also it was observed that the landlord can waive his right available to him under the Act. 19. Thus, it is well established that the landlord can always waive his rights under the present Act. 20. The contention of Mr. Gupta, learned counsel for the respondent that the waiver is only possible under Section 19(D) of the Act and no other waiver is possible under the Act does not appear to be correct. Since, the Act has been enacted primarily for the benefit of the tenant and if the landlord wants to waive his right available to him under the Act then Section 19(D) will not come in his way. The landlord can always waive its benefits or rights available to him under the Act them Section 19(D) will not come in his way. before or after filing the suit. 21. Mr. Gupta, learned counsel submits that in the present case there was no conscious waiver of rights by the plaintiff. This argument of Mr. Gupta is also not sustainable in view of the statement made by PW-1 Shri Ugar Singh who himself is an Advocate and power of attorney-holder of the plaintiff. The plaintiff herself has not come in witness box in the present case but PW-1 Shri Ugar Singh has appeared in witness box to substantiate the allegation made in the plaint. He has accepted the arrears of rent without any demur that clearly shows that the plaintiff-landlord had consciously waived the right. 22. Now the question remains is regarding the rent which has fallen due to the plaintiff during the pendency of the suit and same was not deposited then what should be the position. 23. He has accepted the arrears of rent without any demur that clearly shows that the plaintiff-landlord had consciously waived the right. 22. Now the question remains is regarding the rent which has fallen due to the plaintiff during the pendency of the suit and same was not deposited then what should be the position. 23. It is true under Section 19-A if defendant-tenant offers or sends the rent by the money order and same is not accepted then he can deposit the same in Court after following the provision contained in Section 19-A sub-section 3(c). Thereafter, is he under duty to deposit the rent month by month or not ? Answer is yes. He is duty bound to deposit the rent month by month.Section 19-A says : "Subject to the provisions of this section every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by fifteenth day of the month next following the month for which it is payable." This opening paragraph of Section 19-A clearly qualifies that the tenant is duty bound to deposit the rent month by month or within the time fixed by the contract. If while depositing the rent under Section 19-A he commits a default then it can be construed as a default under Section 13(1)(a). Simply because Section 19-A enables the tenant to deposit the rent under Section 19-A, he does not get a licence that he should not deposit the rent month by month or within the time fixed by the contract. It is only enabling provision that in event of the landlord taking unreasonable attitude then tenant shall be left at mercy of landlord in that case after specifying the provision under Section 19 sub-section 3(c) he can be permitted to deposit the rent in the Court month by month or time fixed by the contract, so as to be saved by severe penalty of eviction on account of second default. 24. In the present case the plaintiff-landlord had already withdrawn the sum of Rs. 1,080/- arrears of rent for 45 months but still rent for a period from March 1980 to April 1981 was deposited vide Ex. 5 on 8th May, 1981. But this was not the ground raised by the plaintiff-landlord in this suit. For this purpose Mr. 24. In the present case the plaintiff-landlord had already withdrawn the sum of Rs. 1,080/- arrears of rent for 45 months but still rent for a period from March 1980 to April 1981 was deposited vide Ex. 5 on 8th May, 1981. But this was not the ground raised by the plaintiff-landlord in this suit. For this purpose Mr. Gupta moved an application under Order 6 Rule 17 for raising this ground in the plaint. Mr. Parekh does not oppose this application at this stage for amending of the plaint. However, I need not to go on the merit of the application which how now been made. 25. For the reason mentioned above, I am of the view that the conduct of the PW-1 Shri Ugar Singh by accepting the rent for a period of 45 months and in view of the order-sheet dated 8th of May, 1981, plaintiff has waived her right to get appellant evicted on the ground of second default as pleaded in suit. The view taken by both the Courts below is set aside. 26. In the result, I allow this appeal and set aside the judgment and decree passed by both the Courts below and remand this case back to the trial Court for considering the application moved by the respondent-plaintiff under Order 6 Rule 17 to consider the same and pass the proper order in accordance with law after hearing both the parties. The record which have been received from the trial Court may be sent back forthwith. No order as to costs.Appeal allowed.