Ganpatlal v. Kuldeep Singh — 1989 DIGILAW 72 (RAJ)

JASRAJ CHOPRA, J.—This appeal is directed against the judgment of the learned Additional District Judge No. 1 Udaipur dated 2-7-1987whereby the learned trial court has held that the defendant-non-petitioner has not committed any second default entitiling the plaintiffs to a decree of ejectment against the defendant and, therefore, the plaintiffs suit has been dismissed with costs. The contention of the defendant-non-petitioner to award special costs has also been dismissed. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are: that the plaintiffs let out their shop, the particulars of which are mentioned in para 1 of the plaint, to the defendant for a sum of Rs. 800/-but it appears that some portion of it was released from his tenancy and, therefore, on 13-5-1987 on the basis of the mutual agreement between the parties, the rent of the suit-shop was fixed at the rate of Rs. 600/- per month with effect from 1-6-1977. However, the defendant did not pay the rent of the suit-shop for about 7 months from 1-7-1981 to 31-7-1981 and, therefore, the plaintiffs-appellants filed a suit against the defendant-non-petitioner on 6-8-1981 on the ground that the! defendant has committed default in payment of rent and, therefore a decree for eviction may be passed against him. That suit was decided on 27-5-1982 holding that this is the first default committed by the defendant and therefore, a decree for eviction cannot be passed against him. The defendant has further failed to pay the rent for a period of about 6 months from 1-5-1982 and as such, he has become second defaulter in payment of rent; The plaintiffs have claimed that their cause of action arose on 1-11-1982. They have further claimed that rent for a period of about 7 months is due from the defendant on the date of the suit which happens to be 20-12-1982. 3 The defendant filed his written statement on 31-5-1983. He has admitted paras No. 1 to 3 of the plaint. In other words he has admitted his tenancy at the rate of Rs.600/- per month from 1-6-1977. He has submitted that even earlier he was not a defaulter because he has remitted rent to the plaintiffs through cheques but the plaintiffs did. not submit those cheques for encashment before the Bank and have returned them back to the plaintiffs. In other words he has admitted his tenancy at the rate of Rs.600/- per month from 1-6-1977. He has submitted that even earlier he was not a defaulter because he has remitted rent to the plaintiffs through cheques but the plaintiffs did. not submit those cheques for encashment before the Bank and have returned them back to the plaintiffs. He has admitted that earlier a suit was filed on the ground of default in payment of rent and that has been decided by the learned Civil Judge, Udaipur. He has totally denied the allegation of second default. He has submitted that he has. paid rent to the defendant in cash. The plaintiffs retained that money and when the defendant insisted for issuing a receipt, they returned the money to them and, therefore, the defendant was forced to deposit this rent amounting to Rs. 3,000/- in the Court under s. 19-A of the Rajasthan Premises (Control of Rent and Eviction), Act, 1950 (hereinafter referred to as the Act) from 1-5-1982 to 31-10-1982 on 29-10-1982 through Tender No. 1711. The rent for the month of November 1982 to April 1983 was deposited under s. 19-A of the Act on 7-5-1983 through Tender No. 369. He has, therefore, submitted that he has not made any default in the payment of rent and, therefore, he has claimed special costs because the suit has been brought to harass him. 4. On the basis of these pleadings of the parties, following three issues were framed, which when translated into English reads as follows: (1) Whether the defendant has committed second default in payment of rent? (2) Whether the defendant is entitled to any special costs under s. 35A of the Code of Civil Procedure? (3) Relief? In support of these issues, from the side of the plaintiffs PW 1 Ganpat Lal and PW 2 Narayan Lal, both plaintiffs and PW 3 Madan Lal have entered the witness box whereas the defendant himself has examined as DW 1. The learned lower Court,, hearing both the parties, decides issue No. 1 in favour of the defendant and against the plaintiffs and issue No. 2 was decided against the defendant, ft has dismissed the suit of the plaintiffs-appellants as aforesaid and hence this appeal by the plaintiffs. 5. I have heard Mr, N.P. Gupta, the learned counsel appearing for the plaintiffs-appellants and Mr. 5. I have heard Mr, N.P. Gupta, the learned counsel appearing for the plaintiffs-appellants and Mr. R.L. Maheshwari, the learned counsel appearing for the defendant-respondent and have carefully gone through the record of the case. 6. In this case, the main question that arises for the decision of this Court is whether the defendant has committed the second default in payment of the rent. It is admitted case of the parties that in the proceedings that were filed earlier before the learned Civil Judge, Udaipur, it has been held that the defendant has committed first default in payment of rent and, therefore, I have to decide in this appeal as to whether the finding of the learned lower court that the defendant has not committed second default can be sustained on the basis of the evidence on record or not. 7. Mr. R.L. Maheshwari, the learned counsel appearing for the respondents has contended that second default also has to be a default in payment of rent, for a continuous period of six months. In this case, the suit was filed on 20.12.1982 and till then, rent from May 1982 to November 1982 became due. The rent from May to October, 1982 was paid on 29.10.1982 and thus, there is no default in payment of rent for a continuous period of six months. In this respect, reliance was placed on a decision of this Court in Khajoolal Vs. Amar Chand 1 wherein a learned single Judge of this Court observed as under: "To my mind, the default after the rent is due, should continue for six months. The section would normally be applicable to a case where rent is required to be paid month by month but in a case where the yearly rent is reserved or required to be paid in terms of the contract, the rent must not have been paid for six months after it had fallen due and then alone this clause would be attracted." That was a case of yearly rent. The yearly rent was fixed, at Rs. 20/-. In that case, actually two shops were let out to the defendant, one of which let out on the yearly rent and the other one was let out on monthly rent. The yearly rent was fixed, at Rs. 20/-. In that case, actually two shops were let out to the defendant, one of which let out on the yearly rent and the other one was let out on monthly rent. As regards the shop which was let out to the defendant on monthly rent basis, the learned Judge has held that the defendant was clearly a defaulter for a period exceeding six months. As regards the shop, about which rent was payable yearly, the learned Judge observed that the nub of the matter, therefore, is whether in such a situation, can it be held within the meaning of s. 13(1)(a) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 that the tenant has neither paid nor tendered the amount of rent due to him for six months. After quoting the provisions of s. 13(1) of the Act, the learned Judge observed that the language of the section is not appropriate in the case of the present kind. The section contemplates fulfilment of two things: viz,, (i) that the amount of rent must have fallen due and that would naturally be in terms of the contract and (ii) that it should not have been paid or tendered for six months. To my mind, the default after the rent is due, should continue for six months. The section would normally be applicable to a case where rent is required to be paid month by month but in a case where the yearly rent is reserved or required to be paid in terms.of the contract, the rent must not have been paid for six months after it had fallen due and then alone this clause would be attracted. Thus, this is a decision about a case in which yearly rent has been reserved or required to be paid in terms of the contract and so, it has no application to the facts of the present case. 8. Mr. N.P. Gupta, the learned counsel appearing for the plaintiff-appellants has submitted that in a case of second default, the proviso to s. 13(6) of the Act categorically provides that a tenant shall not be entitled to any relief under this sub-section, if having contained such benefit or benefits under s. 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. The expression for six months cannot be interpreted so as to mean a default in payment of rent for a continuous period of six months. To support this contention he has placed reliance on a decision of this Court in Hanuman Das Vs. Sanwalram (2). That was a case where rent for the months of June, September, November and December of the year 1975 and March and July of the year 1976 was not paid nor tendered within the stipulated time provided by law i.e. before the 15th of the next succeeding month. In those circumstances, the learned Judge observed that as the provisions of s. 19-A were not complied with, so far as the payments of rent for the months of June, September, November and December of the year 1975 and March and July of the year 1976 are concerned, the tenant should be held to have committed defaults in payment of rent for a period of six months. 9. This matter again came up for consideration before a learned single Judge of this Court in Bajranglal V. Ramdeo (3) wherein a contention was raised that if there is default in payment of rent for a period of six months, then the default clause is attracted. It was further contended that it is not necessary under s. 13(1)(a) of the Act that there should be default in payment of rent for a continuous period of six months. Rather, it was submitted that this clause is fully attracted in cases where defaults in payment of rent of six or more months are committed sporadically prior to the filing of the suit. This was a case where rent for the months of November and December 1975, January, February, March, May, June and July, 1976 and April 1977 were not paid in time and it was held that the defendant has committed default in payment of rent for a period of six months and, therefore, he is liable to ejectment. Neither in s. 13(1)(a) nor in proviso to s. 13(6) of the Act, it has been provided that default in payment of rent should be for a continuous period of six months. What is provided is that the default should be for a period of six months. Thus, these two authorities cited by Mr. Neither in s. 13(1)(a) nor in proviso to s. 13(6) of the Act, it has been provided that default in payment of rent should be for a continuous period of six months. What is provided is that the default should be for a period of six months. Thus, these two authorities cited by Mr. N.P. Gupta, the learned counsel appearing for the plaintiffs-appellants apply on all fours to the case in hand and. therefore, I hold that the tenant should be held to have committed default in payment of rent for a period of six months prior to the filing of the suit in case the suit is filed under s. 13(1)(a) of the Act or in cases where the suit is filed under s. 1.3(6) of the Act for commission of the second default. It is a settled principle of interpretation of Statutes that where the language of a particular provision is clear, categorical or unambiguous and it can be put to its grammatical meaning that meaning should, be given to it. We need not add any words to it when it was not so intended by the legislature. If the intention of the framers of the law was that the default entitling a landlord to eject his tenant has to be for a continuous period of six months nothing prevented it from inserting the word continuous in between the words for a period of and six months. In this view of the matter, I reject the contention of Mr. Maheshwari that the second default committed by the tenant so as to entitle the plaintiff, to get a decree for ejectment, should be for a continuous period of six months. 10. It was next contended by Mr. Gupta that in this case, the tenant has committed default for a period of six months prior to the filing of the suit, and, therefore, the learned lower court has erred in holding that the tenant has not committed such a default and hence, the judgment of the learned lower court deserves to be set aside. Mr. R.L. Maheshwari, the learned counsel appearing for the tenant-defendant-respondent has, however, submitted that when the rent was tendered to the plaintiffs-appellants, they accepted the rent but after retaining it for some-time, they returned it to the defendant when he insisted for issuing a receipt of that amount. According to Mr. Mr. R.L. Maheshwari, the learned counsel appearing for the tenant-defendant-respondent has, however, submitted that when the rent was tendered to the plaintiffs-appellants, they accepted the rent but after retaining it for some-time, they returned it to the defendant when he insisted for issuing a receipt of that amount. According to Mr. Maheshwari, a tenant who pays the rent personally to the landlord has a right to deposit the rent under s. 19A of the Act. He has submitted that the defendant has deposited the rent for a period of six months from May 1982 to October 1982 on 29.10.1982 i.e. prior to the expiry of the period of six months and, therefore, by no stretch of imagination, the defendant can be held to be a defaulter in payment of rent for a period of six months because the rent due for the month of October 1982 was deposited in the Court before 15th of the next month i.e. 15th November, 1982. He has submitted that it may be, that the rent for the months of May to September, 1982 has not been deposited in time i.e. by the 15th of the next succeeding month but the rent for the 6th month i.e. October 1982 was paid before time and that is a valid deposit that has been made by the defendant and he has not committed default in payment of rent for a period of six months. 11. The contention of Mr. N.P. Gupta, the, learned counsel appearing for the plaintiffs-appellants is that the learned lower court has not believed the evidence of defendant as regards the payment of rent personally to the plaintiff. According to Mr. Gupta, the rent can only be deposited in the Court when the rent is remitted to the landlord by postal money order and the money order is received back by him under a postal endorsement of refusal or unfound and further when the landlord does not specify a bank and account number to the defendant despite notice in writing, and unless these two conditions are satisfied, the deposit of rent made under s. 19A of the Act is an invalid deposit and it cannot ensure for the benefit of the tenant as a valid deposit of rent. In support of his submission, Mr. In support of his submission, Mr. Gupta has placed reliance on a decision of this Court in Bajranglals case (supra), wherein a learned single Judge of this Court has observed as under: "In all cases other than bonafide doubt as to the person or persons to whom the rent is payable, rent can be deposited in the Court, if the following two conditions are satisfied namely:-(1) The rent has been remitted by postal money order and it has been received back under a postal endorsement of refusal or unfound and (ii) the landlord has not specified a Bank and Account number despite notice in writing requiring the same." It was further observed as follows: "Admittedly, no notice under s. 19A (3) (b) was given by the appellant (tenant) to the respondent (landlord) prior to the deposit of the said rent in the Court It is also clear that the said amounts of rent were not remitted by money order within the time as specified under s. 19A(1) of the Act. As such these deposits cannot be said to be valid deposits. The provisions of 8. 13(1) (a) of the Act are fully attracted in the case." In that case, a learned single Judge of this Court felt that the word and used in s. 19A(3) (c) of the Act has been intentionally read and it cannot be read as or . 12. It is admitted case of the defendant-respondant that he did not send the rent by postal money order and its postal receipt was never received back with the postal endorsement of refusal or unfound. Mr. R. L. Maheshwari, the learned counsel appearing for the defendant-respondent has submitted that it is not his case that the defendant has given any notice to the landlord to disclose his Bank and its Account number so that he may deposit the rent in the Bank. His contention is that even if the defendant did not do so, the defendant has a right to tender the rent personally and actually, in this case, the rent has been personally paid to the landlord but when the defendant insisted for issuing a receipt, the plaintiffs returned it back to the defendant and, therefore, the defendant has no option but to deposit the rent in the Court. S. 19-A(1) of the Act provides that the tenant shall pay rent to the landlord personally. Sub. S. 19-A(1) of the Act provides that the tenant shall pay rent to the landlord personally. Sub. s (2) of s. 19-A of the Act provides that every tenant who makes a payment on account of rent shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent and sub. s (3) of s. 19-A of the Act is only attracted when the payment is not made personally to the landlord. S. 19-A(3) of the Act reads as under: "19-A (3). A tenant may apart from personal payment of rent to the landlord remit or deposit rent by any of the following methods:— (a) he may remit the amount of any rent due from him by postal money order at the ordinary address of the landlord; or (b) he may, by notice in writing, require the landlord to specify, within ten days from the date of receipt of the notice by the latter, a bank and account number into which the rent may be deposited by the tenant to the credit of the landlord. If the landlord specifies a Bank and account number, the tenant shall deposit the rent in such bank and account number and shall continue to deposit in it any rent which may subsequently become due in respect of the premises: Provided that such bank shall be one situated in the city or town in which the premises is situated: Provided further that it shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid a bank different from the one already specified by him under this clause, (c) Where he has remitted the rent by postal money order under clause (a) and the money order is received back by him under a postal endorsement of refusal or unfound and where the landlord does not specify a bank and account number under clause (b) or where there is bonafide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the court within fifteen days of the expiry of the period of ten days referred to in clause (b) and in the case of such bonafide doubt as aforesaid, within fifteen days of the time referred to in sub-s. (1) and further continue to deposit with the Court any rent which may subsequently become due in respect of the premises". Mr. R.L. Maheshwari, the learned counsel appearing for the defendant-respon-dant has submitted that from the evidence that has been led in the case, it has been proved that the defendant has paid the rent personally to the landlord. This takes us to the discussion of the evidence that has been led in the case in the light of the pleadings of the parties. 13. In para 5 of the written statement, which is actually a reply to para 5 of the plaint, the defendant has contended that he personally went to the plaintiffs and tendered the rent. They have actually accepted that rent and promised that they will send the receipt later on out later, they refused to give any receipt and remitted the money back to him. He has not stated that on what date and what amount of rent was paid to the plaintiffs and on what date, they returned it back to him. They have actually accepted that rent and promised that they will send the receipt later on out later, they refused to give any receipt and remitted the money back to him. He has not stated that on what date and what amount of rent was paid to the plaintiffs and on what date, they returned it back to him. He has not specifically stated that this amount of rent was paid to which particular plaintiff or his agent. He has taken a categorical plea that the rent was paid to the plaintiffs, which means that it was paid either to Ganpatlal or Naraynlal. In the later part of this para, he has contended that it was on 21.10.1982 that the amount paid to the landlords was returned back to him and, therefore, he moved the Court for depositing the rent under s. 19-A of the Act on 29.10.1982. Both the plaintiffs have entered the witness box and they are P.W.1 Ganpatlal and P.W.2 Narayanlal. It was suggested to P.W.I Ganpat-lal in his cross-examination that he was paid rent for the months May, June arid July 1982 and after retaining this amount of rent for 5-7 days, he returned it back to the defendant, meaning thereby that P.W. 1 Ganpatlal was paid rent for the months of May, June and July 1982 only and it was retained by him for 5-7 days and thereafter it was returned back to the defendant. It was not suggested to him that on what particular date, this amount of rent was paid to him PW 2 Narayanlal has stated that the rent was being paid to his brother Madanlal and it was Madanlal who used to. give receipt of the -rent to the defendant although owners of the shop are Ganpatlal and Narayanlal. It was also suggested to him in his cross-examination that the defendant approached him for payment of rent and it was he who returned the money back to him when a receipt was demanded by the defendant. P.W. 3 Madanlal has also stated that no rent was paid to him. It was suggested to him in his cross-examination that the defendant paid the rent to Ganpatlal for four months and after retaining that amount for 10 days, he returned that amount back. P.W. 3 Madanlal has also stated that no rent was paid to him. It was suggested to him in his cross-examination that the defendant paid the rent to Ganpatlal for four months and after retaining that amount for 10 days, he returned that amount back. Thus, three months have now been raised to four months in the statement of P.W. 3 Madanlal and the period of 5-7 days was raised to 10 days. It was not suggested to the plaintiffs and their-witness P.W. 3 Madanlal that the rent for a period of five months was paid either to Ganptalal or Narainlal. The defendant has been examined in this case as D.W.1. In his statement, D.W. 1 Kuldeep Sankhla has not stated as to which particular plaintiff, he has paid this amount of rent. He has categorically stated that he did not pay the rent to P.W. 3 Madanlal because he has nothing to do with this property. According to him, it was only P.W. 2 Narainlal who used to recover the rent and issue the receipts thereof. Later, he has stated that he gave cheques to the plaintiffs but they refused to accept those cheques and, therefore, he has paid the rent in cash. No such cheques have been produced before the Court. The defendant has neither given the dates of the cheques nor has he given the number of the cheques issued to the landlord. Rather, it has not been pleaded in para 5 of the written statement that the rent was paid by cheques. Even when the cheques were returned back to the defendant, how could he pay the rent in cash personally to the plaintiffs and when the plaintiffs refused to accept the cheques, he could have very well known the intention of the plaintiffs and therefore, the defendant should have adopted the procedure as laid down in s. 19-A (3) of the Act. In the later, part of his statement, the defendant has stated that he paid Rs. 3,000/- to the plaintiffs in the months of May 1983, whereas in the written statement, he has submitted that he has paid the arrear of rent to the plaintiffs but they after retaining that amount of rent for about 5-7 days returned it back to him on 21.10.1982. 3,000/- to the plaintiffs in the months of May 1983, whereas in the written statement, he has submitted that he has paid the arrear of rent to the plaintiffs but they after retaining that amount of rent for about 5-7 days returned it back to him on 21.10.1982. In the written statement, he has not mentioned what amount of rent was paid and for how many months, it was paid and on what date, it was paid. Even if it is accepted that the defendant paid Rs. 3,000/- to the plaintiffs in the month of May 1983 as stated by him in his sworn testimony then too that amount could not have been refunded to him on 21.10.1982 i.e., 7 months earlier to the making of that payment. It was suggested to P.W. 1 Ganpatlal in his cross-examination that he was paid rent for the months of May, June and July 1982 whereas in the cross-examination of P.W. 3 Madanlal it was suggested that the defendant paid rent to Ganpatlal for four months and now, in his statement the defendant has stated that the rent for five months was paid in the month of May 1983. If the defendant has already deposited the rent on 29 10.1982, where was the necessity for him to pay the rent personally to the plaintiffs in the month of May 1983 for the aforesaid period. I, therefore, hold that the plea of the defendant about payment of rent personally to the plaintiffs has no legs to stand. The defendant has failed to prove this plea. Once it is held that the rent has not been tendered personally then it is an admitted case of the defendant that the rent was not sent through money order and no notice was given to the plaintiffs to disclose their Bank and account number then the rent deposited in the Court under s. 19A of the Act is not a valid deposit as per this Courts decision in Bajranglals case (supra). In Bajranglals case (supra), this Court observed that the comparative examination of the provision of ss. 13 (1)(a) and 13 (6) of the Act shows that sub s. (4) of s. 19-A is not applicable to the proviso to sub s. (6) of s. 13. In Bajranglals case (supra), this Court observed that the comparative examination of the provision of ss. 13 (1)(a) and 13 (6) of the Act shows that sub s. (4) of s. 19-A is not applicable to the proviso to sub s. (6) of s. 13. There is no references of remittance by money order deposit with the Court in this proviso and in both these cases, the defendants got benefits under s. 13 (1) (a). 13A of the Act in the previous suits and, therefore, the proviso to sub s. (7) of s. 13 of the Act is applicable. 14. Be that as it may, it was contended by Mr. Maheshwari, the learned counsel appearing for the defendant-respondent that as per the plaintiffs, the cause of action has arisen to the defendant on 1.11. 1982 and by that time, the rent for the sixth month has not become due because the rent for the month of October could have been paid by 15th of November and, therefore, by that time (1,11.1982), rent for five months was due and not for six months. I am unable to accept this contention of Maheshwari. The rent for a particular month becomes due as soon as the month ends. It is a different matter that as per the provisions of the Act, it is made payable by a particular date i.e., 15th of the next following month. That is only a facility provided to the tenant to pay the rent by that date but that does not mean that the rent has not become due for the month of October on 1.11.1982. In Hanumandas Vs. Sanwalram (supra) a learned single Judge of this Court has observed that the default in payment of rent occurred when the rent fall due and became payable by the tenant and thus, six months rent had fallen due on the date of the institution of the suit in that case. It is only a fiction of law that if the rent is paid or tendered or deposited within the specified period i.e. by 15th of the next succeeding month then it can be considered that the rent has been paid in time but it does not mean that the rent has not become due on the first day of the next month. 15. 15. It is true that rent for the month of December 1982 was deposited by the defendant in the Court on 29.10,1982 under s 19A of the Act but when it is held that that is not a valid deposit then it has to be construed that the tenant has committed default in payment of rent for the month of October as well because the rent for that month has not been paid or tendered to the landlord before 15th November, 1982. 16. The upshot of the entire discussion is that to attract the default clause either under s. 13(1) (a) or 13(6) of the Act, the rent should be in arrears for a period of six months and not for a continuous period of six months. Any deposit of rent made by a tenant under s. 19-A of the Act will be construed as a valid deposit only when deposited in the court either when it is not accepted by the landlord on personal tender of it by the tenant or when the rent has been remitted by postal money order and it has been received back under a postal endorsement of refusal or unfound and the landlord has not specified a Bank and account number despite notice in writing requiring the same. The rent becomes due and payable as soon as the month of the tenancy ends but it will not be construed as a default in payment of rent for that month if it is paid within fifteen days of the next following month. 17. The net result of the above discussion is that the learned lower court has erred in deciding issue No. 1 in favour of the defendant and against the plaintiffs. Actually, the learned lower court should have held that the tenant has committed second default in payment of rent for a period of six months. When the tenant has committed second default for a period of six months then he is not entitled to any special costs and, therefore, I hold that Issue No. 2 has rightly been decided by the learned lower court. 18. I, therefore, accept this appeal and set aside the Judgment of the learned Additional Sessions Judge No. 1, Udaipur dated 2 7.1987. The suit of the plaintiffs-appellants is decreed against the defendant-respondent for eviction from the suit premises described in para 1 of the plaint. 18. I, therefore, accept this appeal and set aside the Judgment of the learned Additional Sessions Judge No. 1, Udaipur dated 2 7.1987. The suit of the plaintiffs-appellants is decreed against the defendant-respondent for eviction from the suit premises described in para 1 of the plaint. The defendant-respondent is granted three months time to handover vacant and peaceful possession of the suit premises to the plaintiffs appellants, failing which, the plaintiffs-appellants shall be free to get the possession of the suit-premises through the process of the Court. 19. In the facts and circumstances of the case, the parties are left to bear their own costs of this appeal. Let the record of the case be sent back to the learned lower court forthwith.