P. C. Bhagotiya v. Gulkandi Devi (77) — 1992 DIGILAW 193 (RAJ)

SINGHVI, J.—This second appeal of the tenant (appellant) arises out of a suit filed by the landlord (respondent) which had been decreed by the trial court and that decree has been upheld by the lower appellate court. (2) The question which arises for determination in this appeal is, as to whether the landlord is bound to file a second suit for eviction of the tenant on the ground of default, after the tenant has taken benefit of Section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, in an earlier suit filed by the landlord for eviction of the the tenant on the ground specified in section 13(1) (a) of 1950 Act, or as to whether the ground of second default can be considered by court on the basis of amended plaint in which the plaintiff landlord has raised the plea of second default. (3) The brief facts of the case are that the landlord leased out the suit premises (a house) to the tenant on monthly rent of Rs. 140/-. The tenant made a default in payment of rent for a period of more than six months, i.e. between 1.2.74 to 31.10.74. The landlord, therefore, filed a suit for rent and eviction. IN the original plaint dated, 5.11.74, the landlord based the suit for eviction on the ground of default as well as personal necessity. The tenant in his written statement denied the allegations of the landlord and stated that he had paid the rent upto February 1974 and that the landlord had not accepted the rent, thereafter, although, he had tendered the same to the landlord. He also pleaded that the suit had been filed because, the landlord wanted to enhance the rent of the tenanted premises. He claimed that the tenancy had not been terminated by a valid notice. He had made repairs of the tenanted premises and was entitled to adjustment of a sum of Rs. 560/-. On the pleadings of the parties, the learned trial court framed six issues. Subsequently, an additional issue about the comparative hardship was framed. He claimed that the tenancy had not been terminated by a valid notice. He had made repairs of the tenanted premises and was entitled to adjustment of a sum of Rs. 560/-. On the pleadings of the parties, the learned trial court framed six issues. Subsequently, an additional issue about the comparative hardship was framed. (4) During the pendency of the suit, an application was filed on behalf of the tenant under section 13A (b) of the Rajasthan Premises (Control of Rent and Eviction) Amendment ordinance, 1975, stating therein that he was prepared to deposit the arrears of rent with interest and costs and prayed for grant of time to deposit the amount. This application of the tenant was decided by the trial court on 7.12.75 itself and time was given to him upto 29.1.76 to deposit the arrears of rent with interest and costs amounting to Rs. 666.10. On 29.1.76, learned trial Judge dismissed the suit of the plaintiff, in so far as it related to the ground of default, by extending benefit of Sec. 13A to the tenant. The trial court fixed the case for evidence of the parties on the remaining issues. An application dated, 3.10.80 was thereafter, filed on behalf of the landlord under Order VI Rule 17 read with Sec. 151 C.P.C. and an amendment was sought for introducing the ground of second default by alleging that during the pendency of the suit, the tenant has not made payment of rent after 1.8.77 and, had therefore, committed second default and the landlord was entitled to a decree of eviction on that ground. This application was opposed by the tenant. The amendment application filed by the landlord was allowed on 5.2.81 and the landlord (plaintiff) was allowed to add par-9(A) in the plaint for raising ground of second default. An amended written statement was thereafter, filed by the tenant defendant. An additional issue on the ground of second default was framed by the trial court on 9.7.81. (5) After considering the evidence of both the parties, the learned trial court decreed the suit of the landlord on the ground that the tenant committed default in payment of rent from September 1977 to November 1980. An additional issue on the ground of second default was framed by the trial court on 9.7.81. (5) After considering the evidence of both the parties, the learned trial court decreed the suit of the landlord on the ground that the tenant committed default in payment of rent from September 1977 to November 1980. The trial court while deciding issue No.l held that the tenant did commit a default in payment of rent for more than six months, but, observed that on the basis of the provisions contained in the Ordinance of 1975 (Sec. 13A), the tenant had deposited the arrears of rent together with interest and costs and, therefore, on that ground no relief could be given to the plaintiff. The trial court decided the issue of reasonable and bonafide necessity against the plaintiff-landlord. However, on issue No.8, which relates to the question of second default, the learned trial court accepted the evidence and plea of the plaintiff. On that premise decree the suit was decreed on 21.5.82. The tenant filed the appeal which has been dismissed by the learned Additional District Judge No.4, Jaipur City, Jaipur, vide judgment dated, 27.3.89. (6) Shri M.M. Ranjan, learned counsel for the appellant, forcefully argued that two courts below have committed a serious error of law in passing the decree in favour of the respondent. He argued that once the trial court had allowed the amendment application on 5.2.81 permitting the landlord to amend the plaint, Such amendment will relate back to the date of the suit. It cannot be said that a new suit came into existence merely by addition of a new ground for eviction. The suit continued to be the same and no decree for eviction could have been passed on the ground of second default, because it cannot be held that the tenant had availed the benefit under section 13(6) or 13A of 1950 Act, because no finding has been recorded regarding the default in any previous suit. Placing reliance on the decision of Special Bench of Calcutta High Court in Jamuna Prasad vs. Kishori Lal (1), Shri Rajan argued that the ground of second default can be raised by the landlord for seeking eviction of the tenant only by filing a separate suit and it is not permissible for the Court to pass a decree of eviction on the ground of second default in a pending suit. (7) Shri S.K. Keshote, learned counsel for the respondent, on the other hand, argued that once the tenant had made an application under section 13A(6) the Court has to pass an appropriate order for deposit of the arrears of rent together with interest and costs, no decree can be passed for eviction of the tenant, once the tenant takes deposit in pursuance of the order passed by the court. Once the tenant avails the benefit of Section 13A and prevents passing of a decree of eviction, he cannot claim benefit after committing second default. Shri Keshote argued that the nature of the suit for eviction remains un altered even after amendment of the plaint and it was perfectly justified for the courts below to pass the decree of eviction on the ground of second default. (8). The facts which have come on record unmistakably show that the landlord filed the suit on 6.11.74 for eviction on various grounds including the ground of default. During the pendency of the suit Rajasthan Premises (Control of Rent and Eviction) Amendment Ordinance, 1975 (Rajasthan Ordinance No. 26 of 1975) was promulgated on 29.9.75 by way of publication in the gazette of that date. The tenant moved an application under section 13A(b) and the Court passed an order on 3.12.75 directing that a sum of Rs. 666.10 be deposited by 29.1.76. The tenant deposited the amount. The trial court extended the benefit of Section 13A to him and the suit of the landlord was dismissed, in so far as it related to the question of default. Learned trial Court made the following order on 29.1.76. ^^29-1-76 odqyk; Qjhdsu gkftj gSA izfroknh us 13 , ch ds izko/kkuksa ds vuqlkj fu/kkZfjr jde fu/kkZfjr vof/k esa odhy oknh dks vnk dj nh gSA vr% izfroknh dks 13 , ch dk Qk;nk fn;k tkrk gSA oknh dk nkokjk tks fMQkYV~ ds vk/kkj ij [kkfjt fd;k tkrk gSA i=koyh oklrs dk;uh rudh;kr fnukad 26-3-76 dks isk gksA 29-1-76 eaqflQ ,oa n.Muk;d izFke Js.kh t;iqj uxj ¼iwoZ½ The tenant again committed default in payment of rent from 1st September 1977. The landlord, thereafter, moved an application for amendment of the plaint in order to raise the ground of second default. The trial court accepted the amendment application vide its order dated, 5.2.81. The landlord, thereafter, moved an application for amendment of the plaint in order to raise the ground of second default. The trial court accepted the amendment application vide its order dated, 5.2.81. The learned trial court while taking note of the fact that the defendant appellant had already been given the benefit of the provisions contained in Section 13A (b) of 1950 Act held that there was no bar against the raising of the plea of second default in the same suit and held that the tenant had failed to deposit the rent for 39 months. He did not comply with the provisions of Section 19A; Since he had committed default for more than six months, the plaintiff was entitled to a decree of eviction. The learned lower appellate court considered the plea of the appellant that amendment application has wrongly been accepted and that the ground of second default cannot be raised in the same suit, and held that after passing of the order dated, 29.1.76, by which the appellant was extended benefit of Sec. 13A, the suit was not being continued on the ground of default. The ground of second default was added by way of amendment, once this amendment is allowed, it will be treated at par with the second suit and, there was every-justification for passing a decree on the ground of second default. (9) Section-13(l)(a) and Sec. 13( ^ ) together with its proviso read as under: — Section 13(l)(a)- That the tenant has neither paid nor tendered the amount of rent due from him for six months; Sec. 13(6)-If a tenant makes deposit or payment as required by sub section (4) no decree for eviction on the ground specified in clause (a) of sub Sec. (1) shall be passed by the court against him. Provided that a tenant shall not be entitled to any relief under this sub section, if having obtained such benefit or benefits under Section 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." (10) Section-13A(a) and (b) are also reproduced as under: — Section-13A (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 applies under clause (b) and pays to the landlord 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." 13A (b) "In every such preceding 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 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 landlord; 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 by disposed of as if tenant had no committed any default." (11) Section-13(l) of 1950 Act impose a negative mandate on the court in passing a decree for eviction of the tenant so long as he is ready and willing to pay rent of the tenanted premises. It however, allows the court to pass such a decree if it is satisfied that the conditions specified in any of the sub-clauses of section 13(1) are attracted. The landlord can file a suit for eviction of a tenant on one or more than one grounds for seeking eviction. The landlord may raise grounds of seeking eviction. The landlord may raise grounds for default, sub-letting, material alteration, creating of nuisance, reasonable and bonafide necessity, non user of the premise etc. The landlord can file a suit for eviction of a tenant on one or more than one grounds for seeking eviction. The landlord may raise grounds of seeking eviction. The landlord may raise grounds for default, sub-letting, material alteration, creating of nuisance, reasonable and bonafide necessity, non user of the premise etc. Section 13(3), 13(4) read with Sec. 13(6), provide that, no decree for eviction shall be passed by the court if a tenant makes deposit for payment as required by Sub. Sec. (4) of Section-13, so far as the ground of default is concerned. However, proviso to Sec. 13(6) clearly provides that, a tenant shall not be entitled to any relief under Section 13(6) clearly provides that, a tenant shall not be entitled to any relief under Section-13(6) clearly provides that, a tenant shall not be entitled to any relief under Section-13(6) if he makes a default in the payment of rent of the accommodation for six months after having obtained the benefit specified in Sec. 13(6) or the one specified in Section 13A in respect of that accommodation. Section 13A was introduced as a special provision to deal with the pending cases. Section 13A begins with non obstante clause and it provides that no decree for eviction of the tenant can be passed on the ground of non payment of rent if the tenant makes an application under clause (a) and pays to the landlord or deposits in court the amount of arrears of rent, interest and full costs of the suit as per the directions of the court and within time specified by the court. Section 13A (b) enjoins upon the Court to make a determination of the amount of rent in appears upto the date of order together with interest and costs. In case, an application is made by the tenant under Section 13A(a) the tenant was then required to deposit the amount within the specified time. The last part of section 13A (b) postulant the disposal of the proceeding pending before the court on the presumption that the tenant had not committed any default. A careful reading of the clauses of Section-13A makes it clear that an additional option was given to the tenant to avail the promt of a special provision. The last part of section 13A (b) postulant the disposal of the proceeding pending before the court on the presumption that the tenant had not committed any default. A careful reading of the clauses of Section-13A makes it clear that an additional option was given to the tenant to avail the promt of a special provision. If the tenant exercises one option of preventing the court from passing a decree of eviction on the ground of default in a pending proceeding, he was required to make application for that purpose within the specified time and was required to deposit the amount of arrears of rent together with interest and costs. In Prem Lal vs. Jadav Chand (2), a Division Bench of this court had occasion to examine the scheme of 1950 Act in the. light of the provisions contained in Section 106 of the Transfer of Property Act and observed : — "The entite scheme and structure of the Act leads to the irresistible conclusion that Section 13(1) places a bar on the court. The court is not competent to pass a decree for prossession either invictum or with consent of the parties or on a ground which is dehors the Act. The existence of one or more of the grounds mentioned in Section 13(1) is a sine qua non to the exercise of jurisdiction by the court." "No doubt, the plaintiff has to allege the existence of one or more of the grounds specified in Section 13(1) and has the burden of proving that such grounds exist, but the existence of grounds is not a part of the cause of action. If any of such ground exists, the tenant is not entitled to any protection from eviction. The court has, therefore, to see if any of the grounds exits, as in that event, the suit would be maintainable." "The effect of allowing the amendment will not alter the nature and character of the suit, nor will it cause any prejudice to the defendant." "The landlord sets out the grounds of ejectment in the plaint, not because they constitute his cause of action, but in anticipation of the tenant claiming the protection provided in Sec. 13(1) of the Act, to show that conditions have arisen which have taken away the protection of the tenant and removed the impediment in the way of the landlord recovering possession. IN our opinion, the grounds mentioned in Sec. 13(1) of the Act, therefore, do not constitute a necessary part of the cause of action for eviction of the tenant from an accomodation." (12) Although Prem Lals case was partly held as longer good law in Lallu Narain vs. Ratan Chand (3), the observation, quoted herein above still hold good. (13) In Nand Kishore vs. Shri Narain Das (4), a learned Single Judge of the Court held that amendment to incorporate a new ground of eviction can be allowed under the inherent powers of the court if the defendants defence is not prejudiced. (14) In Majati Subbarao V.P.V.K. Krishna Rao (5), their Lordships of the supreme Court were called upon to consider the case, wherein the tenant had denied the title of the landlord in a suit for eviction filed against him by the landlord. After the written statement was filed, the landlord too up the new ground of eviction in the rejoinder filled by him. The rent Controller passed a decree for eviction on the ground of reasonable and bonafide necessity and also on the ground that the tenant had denied the title of the landlord and the enial was not bonafide. The appeal of the tenant was dismissed by the appellate authority. The High Court of Andhra Pradesh rejected the revision petition and, thereafter, the matter was taken up before the apex Court by way of special Leave Petition. While dismissing the appeal of the tenant their lordships of the Supreme Court rejected the contention that the denial of title would only entitle the landlord to forfeit the lease, but, in order to be a ground of eviction in a suit that forfeiture must precede the suit or petition for eviction. The Court held that, whereas, under the transfer of property Act determination of lease is a condition precedent for recovery of possession, under the Rent Act, the landlord becomes entitled to recovery of possession, under the Rent Act, the landlord becomes entitled to recovery of possession on fulfillment of the conditions laid down therein. The Court held that, whereas, under the transfer of property Act determination of lease is a condition precedent for recovery of possession, under the Rent Act, the landlord becomes entitled to recovery of possession, under the Rent Act, the landlord becomes entitled to recovery of possession on fulfillment of the conditions laid down therein. The court further observed that, normally, the landlord should have applied for amendment of the plaint and incorporated the ground of denial of title therein, in order to get relief on that ground which had arisen after the eviction petition was filed; but, where the parties had gone to trial with full knowledge, the Rent Controller was justified in passing the order of eviction on the ground of denial of title also. The court observed that if, objection had been raised by the tenant about the absence of ground of denial of title, the landlord could have applied for amendment of the eviction petition to incorporate that ground. (15) From these decision it is clear that the grounds set out in S.13(l) for eviction a tenant do not necessarily constitute a necessary part of cause of action for eviction of a tenant from an accommodation, but the Court is not entitled to pass a decree unless it is satisfied about the existence of one of the grounds, specified in S. 13(1) (a) to S. 13(1) (b) Even if, the tenant fails to appear and the suit remains ex-parte, the plaintiff is not entitled to succeed unless one or more of the grounds mentioned Sec. 13(1) of the Act are proved to exist the court must fell satisfied about the existence of one or more of the grounds set-out in sec. 13(1). The Court is even prevented from executing a decree of eviction of the tenant from accommodation, unless it is satisfied about the existence of such grounds. Once the Court can pass a decree for eviction. Therefore, if the landlord can raise one or more grounds of eviction in the same suit, it is difficult to appreciate as to how the acceptance of amendment by the trial court, whereby the landlord respondent was allowed to add ground of second default, has resulted in any illegality. Once the Court can pass a decree for eviction. Therefore, if the landlord can raise one or more grounds of eviction in the same suit, it is difficult to appreciate as to how the acceptance of amendment by the trial court, whereby the landlord respondent was allowed to add ground of second default, has resulted in any illegality. IN my opinion, the ground of second default could be taken by the respondent with every justification, because, the nature of the suit was not altered by the amendment of the plaint, The tenant was fully a ware of the case and no prejudice has been suffered by him by the grant of amendment application of the landlord. (16) The next point which requires consideration is, as to whether is was necessary for the landlord to file a second suit, instead of amending the plaint to seek eviction of tenant appellant on the ground of second default. The scheme of S.13 which has been considered by the Division Bench of this court in Prem Lals case (Supra), clearly show that this provision only puts a fetter on the power of the Court to as a devee of eviction or to execute a decree of eviction till the Court is satisfied about the existence of any one or more than one grounds specified in sub clause (a) to (1) of Section 13(1). As already observed above, if the landlord is entitled to raise a plea of deatuls a ground for eviction in the first instance, thee is no reason to hold that this ground cannot be raised by way of amendment so as to claim eviction on the ground of second default. There is nothing in the scheme of Section 13 or any other provision of 1950 Act or any other law which postulates filing of a second suit by the landlord. As observed by their lordships of the Supreme Court in Majati Subbaraos case (supra), the ground of eviction need not precede the suit or petition for eviction. There is nothing in the scheme of Section 13 or any other provision of 1950 Act or any other law which postulates filing of a second suit by the landlord. As observed by their lordships of the Supreme Court in Majati Subbaraos case (supra), the ground of eviction need not precede the suit or petition for eviction. Therefore, when the ground of default raised in the first instance became non existent after the tenant had availed the benefit of S.13A, the landlord was entitled to raise the plea of default for more than six months by way of amendment in the same suit; and it was not at all necessary for the landlord to file a second suit seeking eviction of the tenant on the ground of second default. The decision of the Calcutta High Court in Jamuna Prasads case (supra), is based on interpretation of Section 17(4) of the West Bengal Premises Tenancy act, 1956 as amendment in the year 1969. A Special Bench of Calcutta High Court interpreted the phrase "a tenant shall not be entitled to any relief under the sub section, if having obtained such relief once in respect of the premises, he has again made default." The Calcutta High Court held that the proviso disentitles a tenant to relief under sub section (4) if having obtained such relief under sub section(l), he has made another default. In other words, a tenant who has obtained relief under sub section(4) on occasion cannot claim the same relief, if makes another default of the same kind. Since, the relief under sub section (4) can be obtained only in a suit when, but for the proviso, a tenant should have had his defence struck of under sub-section(3). It is obvious that the altered proviso contemplates two proceedings. In the first proceeding, whether it is a suit or an appeal, defaulting tenant is contemplated as having already been given relief by the court in so far as the court has rerained from passing decree or order of eviction. In the second proceedings, which again must be a suit or a pending appeal, the same tenant, who has already obtained relief under sub-section(4) in that proceedings, is against co-fronted with the risk of being thrown out on the ground of default in payment of rent for four months in a period of 12 months. In the second proceedings, which again must be a suit or a pending appeal, the same tenant, who has already obtained relief under sub-section(4) in that proceedings, is against co-fronted with the risk of being thrown out on the ground of default in payment of rent for four months in a period of 12 months. In doing so, the Special Bench of Calcutta High Court placed reliance on the decision of the Madhya Pradesh High Court in Smt. Ram Pyari V. Ram Avtar ( AIR 1968 M.P. 87 ). After having carefully gone through the decision of the Calcutta High Court as also that of Madhya Pradesh High Court, with great respect, I am unable to agree with view expressed by the Special Bench of Calcutta High Court as also of the Madhya Pradesh High Court that the ground of second default must precede a suit or an application for eviction and that the landlord, can seek eviction on the ground of second default only by filing a second suit. The Calcutta as well as Madhya Pradesh High Court judgments proceed on the premise that the gorund for eviction. The preposition is contrary to what has been observed in Prem Lals case (supra). The decisions of Calcutta and Madhya Pradesh High Courts also run contrary to the decision of the Supreme Court in Majati Subha Raos case (supra). (17). That apart a plain reading of proviso to Section 13(6) makes it clear that the tenant is denied relief under section 13(6) of the Act, if he again makes a default in the payment of rent of that accommodation for six months, after he has obtained benefit of the court in passing a decree of eviction on the ground specified in Sec. 13(1) (a) or benefits under section 13A in respect of the same accommodation. The crucial words used in this proviso are "having obtained such benefit or benefits under section 13A in respect of such accommodation, if he again makes a deault." A suit for eviction if based only on ground of default as set out in Section 13(1) (a) has to be disposed of, as soon as the tenant deposits the amount as determined under section 13(3) Likewise, if a suit was pending at the time of commencement of 1975 Ordinance and it was based only on the ground of default, the Court was bound to dispose of the proceedings on tenants depositing the amount as determined by Court under Section 13A(b). However, it suit is based on the ground of default and other grounds, the court cannot disposed of the suit. IN that event, the tenant is bound to continue to pay rent of deposit the same in the Court month by month. If the tenant again makes a default in payment of rent of the accommodation for six months after having secured benefits of Sec. 13(6) or Sec. 13 A, he loses the benefit available to him and there is no reason to hold that the landlord must file a fresh suit for eviction. Therefore, I do not find any merit in the submissions of the learned counsel for the appellant tenant that the tenant could not have been evicted on the ground of second default in the suit filed in the year 1974, even though, the ground of second default was permitted to be raised by way of amendment of the suit. (18) In the present case the tenant appellant did avail benefit of S.13A of 1950 Act. The trial Court decided issue of default in payment of rent vide its order dated 29.1.76. It is also an admitted position that the tenant appellant did not make payment of rent to the landlord from lst September 1977 till November 1980. He clearly committed default in payment of rent for more than six months. The tenant had earlier obtained the benefit of Section 13A. This is abundantly clear from the facts that he made application under section 13A of the Act and the Court determined the amount of rent, interest an costs and the same were deposited by him. The suit of the landlord was even dismissed in so far as it related to the ground of default. This is abundantly clear from the facts that he made application under section 13A of the Act and the Court determined the amount of rent, interest an costs and the same were deposited by him. The suit of the landlord was even dismissed in so far as it related to the ground of default. Having committed the second default, the tenant appellant made himself liable to be evicted and no error of law can be said to have been committed by the courts below in passing the decree of eviction and in rejecting his appeal. The mere fact that the tenant subsequently deposited the amount in the Court, could hardly entitle him to claim any relief in the context of Sec. 19A of 1950 Act. The deposit of the rent without any step having been taken by him to remit or pay the money to the landlord before the expiry of six months, cannot be a ground of declining the decree of eviction. (19) In the result, this appeal is held to be without merit and the same is dismissed. Appellant shall pay costs of this appeal to the respondent.