Achla Ram v. Hastimal — 1993 DIGILAW 762 (RAJ)

JUDGMENT : 1. This second appeal has been filed against the judgment of the learned District Judge, Jalore dated February 1, 1990 by which he has dismissed the appeal of the learned Civil Judge, Jalore dated August 10, 1987, decreeing the suit of the plaintiff-respondent for the recovery of arrears of rent and mesne profits and ejectment on the ground of default in payment of rent, reasonable and bonafide necessity and reconstruction. 2. The facts of the case giving rise to this second appeal may be summarised thus. On April 8, 1976, the plaintiff-respondent filed a suit for recovery of arrears of rent of Rs. 3293.32 and mesne profits of Rs. 1,004/- and ejectment on the aforesaid three grounds with the averments that the defendant took the suit shop on monthly rent of Rs. 251/- on June 18, 1973, during the period from 18.6.73 to 7.12.75, he paid Rs. 3863/- only, Rs. 3817.50 remained outstanding against him and after service of notice of ejectment he sent two money orders of total amount of Rs. 524/-. On 6.8.78, written statement was filed by the defendant admitting that he is in possession and occupation of the suit shop as a tenant. The remaining averments of the plaint were denied. He also averred that he took the suit shop in the year 1960 on monthly rent of Rs. 50/- and gradually it was increased to Rs. 251/- p.m. and reasonable and fair rent be determined. He is not in arrears of rent and suit deserves to be dismissed with costs. The plaintiff filed replication averring that the defendant had taken on rent another shop and has started business in it. By order dated 6.2.78, Rs. 10,172/- were determined under Section 13(3) Rajasthan Premises (Control of Rent and Eviction), Act, 1950 (hereinafter to be called the Act) as the amount of arrears of rent and interest. Appeal against this order was dismissed on 15.11.79. On the application of the plaintiff, defence was struck out for repeatedly committing defaults in depositing the monthly rent. Appeal against this order was dismissed on 18.3.83. S.B. Civil Revision No. 192/83 was filed against this appellate order and it was dismissed by this Court on 5.9.83. 3. On 17.1.80, eight issues were framed by the trial Court. On the application of the plaintiff, defence was struck out for repeatedly committing defaults in depositing the monthly rent. Appeal against this order was dismissed on 18.3.83. S.B. Civil Revision No. 192/83 was filed against this appellate order and it was dismissed by this Court on 5.9.83. 3. On 17.1.80, eight issues were framed by the trial Court. On 15.12.83, the defendant moved an application under Order 6 Rule 17, C.P.C. for amendment to incorporate necessary averments for the fixation of standard rent under Section 6 of the Act. It was allowed and amended written statement was filed on 15.3.84 along with requisite court fee. On 27.3.84, two additional issues were framed regarding standard rent. After recording the evidence of the parties and hearing them, the learned trial court decreed the suit for arrears of rent and mesne profits @ Rs. 251/- per month and ejectment on all the three grounds. It did not reduce the agreed rent for want of evidence. On appeal, the learned District Judge fixed standard rent @ Rs. 80/- per month w.e.f. March 15, 1984 (day on which the amended written statement and requisite court fee were filed), modified the decree for the recovery of arrears of mesne profits accordingly and confirmed the decree of ejectment on all the said three grounds. 4. The plaintiff-respondent filed his caveat on 14.3.90 and this second appeal was filed on 1.5.90. 5. It has been contended by the learned counsel for the defendant-appellant that the learned lower courts have seriously erred to hold the defendant- appellant as a defaulter and to decree the suit for ejectment on this ground. He contended that in the suit arrears of rent and mesne profits have been claimed @ Rs. 251/- per month, after the fixation of standard rent under Section 6 of the Act @ Rs. 80/- per month, the amount of arrears of rent and mesne profits should have been re-determined excess amount paid @ Rs. 171/- (251.80) per month since 18.6.73 should have been adjusted, the order striking out defence should have been recalled and the agreement regarding the payment @ Rs. 251/- per month was null and void from its inception. He relied upon Central Bank of India v. Govind Narain, 1971 RLR 213 (DB) paras 32. 6. The aforesaid contentions have no substance. Admittedly, standard rent was fixed @ Rs. 251/- per month was null and void from its inception. He relied upon Central Bank of India v. Govind Narain, 1971 RLR 213 (DB) paras 32. 6. The aforesaid contentions have no substance. Admittedly, standard rent was fixed @ Rs. 80/- per month w.e.f. 15.3.84 of the learned District Judge by his judgment dated February 2, 1990. Substantial question No. (d) proposed in the memo of second appeal runs as under:- "Whether the appellate court ought to have fixed the standard rent from the date of original written-statement and fixation of standard rent from 15.3.84 is vitiated due to misreading of the original written-statement." It is thus clear that the defendant himself has not claimed fixation of standard rent @ Rs. 80/- per month from 18.6.73 in the memorandum of appeal. Both the lower courts have concurrently held that the suit shop was let out to the defendant by the plaintiff on 18.6.73 on monthly rent of Rs. 251/-. It has been averred in the plaint that the defendant paid only Rs. 3863/- towards the arrears of rent for the period from 18.6.73 to 7.12.75 and balance of Rs. 3817.50 had remained outstanding and this amount was claimed in the notice of ejectment. It has also been averred that Rs. 524/- were remitted by the defendant by money orders after receiving notice. In the suit, Rs. 3293.50 were claimed as arrears of rent and Rs. 1004/- as mesne profits from 7.12.75 to 7.4.76 @ Rs. 251/- per month. Thus the total amount claimed is Rs. 4297.50 as arrears of rent and mesne profits till the date of the institution of the suit. In view of the said order of the appellate court fixing standard rent @ Rs. 80/- per month w.e.f. 15.3.84, the said amount claimed in the plaint remains unaffected and also the other striking out the defence. 7. As already observed above, on account of the defaults in payment of rent, defence was struck out by the trial court on 8.8.80. Appeal against this order was dismissed on 18.3.83 by the learned District Judge. S.B. Civil Revision No. 192/83 was filed by the defendant and it was dismissed by this Court on 5.9.83. After these orders, it is not open to contend that his defence could not be struck out. Appeal against this order was dismissed on 18.3.83 by the learned District Judge. S.B. Civil Revision No. 192/83 was filed by the defendant and it was dismissed by this Court on 5.9.83. After these orders, it is not open to contend that his defence could not be struck out. It has been observed in Deshraj v. Om Prakash, 1988 (2) RLR 173 at page 174 para , as follows:- "I see no force in the contention of Mr. Lodha. So far as the question whether the defence against eviction is liable to be struck out or not became final between the parties by the trial court's order dated September 14, 1983 and it final culmination in the revision No. 676/1984 decided by the High Court by order dated February 11, 1987. Even if the Full Bench of this Court in Bishan Das v. Savitri , 1988 RLR 1 (supra) may have taken the view that the provisions of Section 5 of the Limitation Act and the question of bonafide good faith in not depositing the rent in time can be considered if cannot afford a ground to the defendant to raise this controversy again in the present proceedings. The order of the High Court in Civil Revision No. 676/1984 decided on February 1987 is final in this regard so far as the parties in the present case are concerned. In view of these circumstances, I find no ground or justification to make any interference in the orders passed by the lower court. This revision thus having no force is dismissed with no order as to costs." 8. There is yet another aspect of the matter. According to Section 3(vi), standard rent means the rent determined in accordance with the provisions of the Act. According to Section 5 of the Act, rent as may be agreed upon in between the landlord and the tenant is ordinarily payable but it is subject to other provisions of the Act. Section 6 deals with the provisions relating to fixation of standard rent. The words "Determination" and "Fixation" have both been used in the Act. In Section 6, "fixation" has been used at three places and "Determined/Determination/Redetermination" have been used at eight places, indicating that they have been used indiscriminate in the same sense. Section 6 deals with the provisions relating to fixation of standard rent. The words "Determination" and "Fixation" have both been used in the Act. In Section 6, "fixation" has been used at three places and "Determined/Determination/Redetermination" have been used at eight places, indicating that they have been used indiscriminate in the same sense. Sub-section (5) of Section 6 runs as under:- "In every case in which the Court determines the standard rent of any premises under this Section it shall appoint a date from which the standard rent so determined shall be deemed to have effect : Provided that such date shall in the case of a tenant who institutes a suit under this Section after the expiration of six months from the commencement of his tenancy on the ground of the rent agreed upon being excessive, be the date of the institution of such suit of such later date as the Court in the circumstances of the case deem reasonable." 9. Section 8 states:- "8. Non-liability to pay in excess of standard rent - (1) Except where rent is liable to periodical increment by virtue of an agreement entered into before the first day of January, 1943 and not superseded by or merged in a decree or order of the Court in any suit under this under this Act, no tenant shall, notwithstanding anything contained in any contract, be liable to pay to his landlord for occupation of any premises any sum in excess of the standard rent therefore decreed by the Court, unless such sum lawfully be added to the standard rent in accordance with the provisions of this Act under a decree or otherwise. (2) An agreement for the payment of rent as such in excess of the standard rent shall be null and void and shall be construed as it if were an agreement for payment of the standard rent only. (2) An agreement for the payment of rent as such in excess of the standard rent shall be null and void and shall be construed as it if were an agreement for payment of the standard rent only. (3) Nothing in this section shall preclude the landlord from recovering from his tenant, over and above the standard rent an additional charge, if any, determined under Section 6, the amount of any charge for electricity or water consumed in the premises or of any charge of tax levied by the State Government or a local authority having jurisdiction or of any charge in respect of any service rendered to the premises, if the landlord is liable to pay and pays such charge or tax." 10. The above quoted provisions and the provisions of Section 5 leaves no manner of doubt that till standard rent is determined/fixed by the court, agreed rent will be payable. Sub-section (3) of Section 13 of the Act also provides that the amount of arrears of rent shall be calculated at the rate of rent at which it was last paid or was payable. If an agreement has been entered in between the landlord and the tenant regarding the rate of rent prior to the fixation/determination of standard rent by Court it would be quite legal and valid. If such an agreement regarding rate of rent in excess of standard rent takes place after the determination/fixation of standard rent, it would be void under Section 8(2) of the Act. This has also been held so in Central Bank of India v. Govind Narain, 1971 RLW 213 page 32 . It has not been held in it that agreement in between the landlord and the tenant stipulating rent in excess of standard rent executed prior to the fixation/determination of thee standard rent would be null and void from the very beginning. It cannot, therefore, be said that the agreement in between the parties regarding the payment of rent @ Rs. 251/- per month was void ab initio . According to Section 8(2) of the Act, it would be null and void regarding the rate of rent @ Rs. 251 - per month w.e.f. 15.3.84 (date from which the District Judge had fixed the standard rent @ Rs. 80/- p.m.) and it shall be construed as if it was an agreement for payment of the standard rent only. 11. According to Section 8(2) of the Act, it would be null and void regarding the rate of rent @ Rs. 251 - per month w.e.f. 15.3.84 (date from which the District Judge had fixed the standard rent @ Rs. 80/- p.m.) and it shall be construed as if it was an agreement for payment of the standard rent only. 11. The defendant would have been benefited if the standard rent @ Rs. 80/- per month would have been fixed with effect from the commencement of his tenancy i.e. from 18.6.73 and the amounts paid in excess of Rs. 171/- per month (251-80) would have been adjusted. In view of the order of the learned District Judge fixing standard rent @ Rs. 80/- per month w.e.f 15.3.84, there was no question of calculating the amount of arrears of rent @ Rs. 80/- per month from 18.6.73. Even assuming for the sake of arguments that it may be calculated at this rate from 18.6.73, still the defendant will not get any, benefit as he has not claimed for the adjustment. There is no such plea in his written statement. There is also no provision in the Act for such an adjustment. Section 7(5) of the Act simply speaks of the adjustment of amount paid as provisional rent. It has been observed in Bhoja @ Bhoja Ram Gupta v. Rameshwar Agarwal, 1993 (2) JT (SC) 375 at page 380 para 14 as follows:- "14. The Act does not contain any provision for automatic adjustment of excess rent. As already noticed, neither in reply to the notice under Section 106 of the Transfer of Property Act nor in the written statement or through any other writing was the adjustment of excess rent towards the arrears claimed by the tenant from the landlord. There also was no agreement between the parties at any point of time for adjustment of the excess rent illegally paid towards the rent falling due subsequently." 12. It has further been observed in para No. 21 as under:- "21. There also was no agreement between the parties at any point of time for adjustment of the excess rent illegally paid towards the rent falling due subsequently." 12. It has further been observed in para No. 21 as under:- "21. The Madras High Court in Nune Panduranga Rao v. Divvala Gopala Rao while construing a somewhat similar provision contained in Section 7(2) of the Madras Buildings (Lease and Rent) Control Act held : "Under the express provisions of this section if the tenant has not paid or tendered the rent due by him within the time prescribed therein he is liable to be evicted. The section does not compel a landlord to adjust the excess amounts in his hands towards an arrears of rent if the said amounts were not paid by the tenant towards the rent of any particular month. It is true that on the date when a tenant authorises the landlord to adjust the amounts with him towards the rent of any particular month or months the amount will be deemed to have been paid on that date towards rent. But till that adjustment is made and the amount is so appropriated, any amounts in excess of the rent due with the landlord will only be payments made in suspense. The fact that such excess came into the hands of the landlord by reason of the Rent Controller's order fixing the fair rent does not really affect the question. I am, therefore, of opinion that the amount not paid towards rent of any particular month and the amount not agreed to be adjusted towards any rent of a particular month is not payment of rent within the meaning of Section 7(2) of the Act." (Emphasis supplied). We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of 'automatic adjustment' and hold that a tenant cannot save himself from the consequence of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid consequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the notice to quit and even in the written statement by way of set of within the period of limitation and by following the procedure for claiming such a set off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but he cannot claim 'automatic adjustment'. 13. In Gopal Singh v. Smt. Suraj Devi, 1987 (2) RLR 147 , relied upon the learned counsel for the defendant-appellant, the defence was struck out in default in payment of rent for two months, on scrutiny it was found that interest was paid in excess, excess amount paid as interest was more than the amount of rent for two months and as such order striking out the defence was recalled. 14. It was next contended by the learned counsel for the defendant-appellant that the learned appellate court should have fixed the standard rent from the date of the original written statement and not from 15.3.84. The learned District Judge has discussed in para No. 17 of this judgment that the appellant put forward his case for the fixation of standard rent on 15.3.84. It is not in dispute that the defendant moved an application on 15.12.83 for the amendment of his written statement for incorporating necessary averments regarding fixation of standard rent. It was allowed and the amended written statement was filed on 15.3.84 along with requisite court fee. After the filing of the amended written statement two additional issues were got framed by the defendant regarding standard rent. The defendant neither paid requisite court fee nor pressed for framing of issues regarding standard rent after filing of his original written statement. In view of these facts and circumstances, it cannot be said that the learned appellate court seriously erred in fixing standard rent w.e.f. 15.3.84 particularly when Section 6(5) gives discretion the court regarding the date from which the standard rent would be payable. In any view of the matter, it cannot be said that it involves a substantial question of law. 15. In any view of the matter, it cannot be said that it involves a substantial question of law. 15. It was next contended by the learned counsel for the defendant-appellant that both the lower courts have seriously erred to hold that the plaintiff required the suit shop reasonably and bonafide and he would suffer greater hardship if the suit for ejectment is not decreed. These are findings of fact and are not open to challenge in second appeal. The facts of Precision Steel and Engineering Works and Anr. v. Prem Deva Niranjan Deva Tayal, reported in 1982 (3) SCC 270 are quite different and distinguishable. 16. The plea of partial eviction was not at all taken either before the trial court or before the first appellate court. Both the lower courts have held that the defendant has started business in another shop. Under the facts and circumstances of the case, the decree of ejectment on the ground of reasonable and bonafide has rightly been passed. 17. It was lastly contended by the learned counsel for the defendant- appellant that it has not been averred in the plaint that the suit shop has become unsafe and for human habitation and as such it is required to carry out building work. Issue No. 6 deals with this ground of ejectment. The defendant should have taken steps for striking it out and admittedly he did not take such a step. It is too late for him to urge that ejectment on this ground is vitiated for want of necessary pleadings particularly when the first appellate court has observed in its judgment that according to the evidence on record the suit shop is in damaged condition and the Nagar Palika, Bhinmal has issued notice to the plaintiff to demolish it and remove its "Malva". 18. No substantial question of law is involved in this appeal. Accordingly, it is dismissed. No order as to costs. 19. 18. No substantial question of law is involved in this appeal. Accordingly, it is dismissed. No order as to costs. 19. The defendant appellant is given time upto March 31, 1994 to vacate the suit shop provided he remits by money orders to the plaintiff the entire amounts of mesne profits upto the period ending on 31.3.94 and costs of both the subordinate courts and furnishes an undertaking to the effect that he will not part with the possession of the suit shop during this period and he will deliver its actual and physical possession to the plaintiff by or on March 31, 1994, both within one month from today.