Legal Representatives of Mohd. Sahab v. Panch Pathik Suthar Samaj
1993-12-06
M.C.JAIN
body1993
DigiLaw.ai
JUDGMENT : 1. These second appeals have been filed against the common judgment of the learned Additional District Judge, Banswara dated September 25, 1993 by which he has dismissed the appeals filed against the similar judgments of the learned Munsiff, Banswara dated April 13, 1992, decreeing the suits for the recovery of arrears of rent and mesne profits and for ejectment of the defendant-appellants on the grounds of default, reasonable and bonafide necessity and sub-letting. 2. The trial court determined the amounts of rent, mesne profits and interest under Section 13(3), Rajasthan Premises (Control of Rent and Eviction), Act, 1950 (hereinafter to be called 'the Act') in both the suits and the amounts so determined were deposited in time. In both the cases, the defendant-appellants failed to deposit the rent of the month of February, 1983 in time and it was deposited on April 16, 1983 along with the amount of rent of the month of March, 1983. The defence was struck out under Section 13(5) of the Act. Appeals filed against the orders striking out defence were dismissed. Civil Revision Petitions No. 313 and 330 of 1985 filed by the defendant-appellants were also dismissed by this Court by common order dated July 22, 1986. After recording the evidence of the plaintiff and giving an opportunity to cross-examine the plaintiff's witnesses and hearing the parties, the trial court decreed the suits for ejectment on all the three grounds. Appeals have also been dismissed as said above. 3. In both the appeals, it has been contended by the learned counsel for the appellants that the principle of res judicata would not apply so far as the question of default is concerned. He relied upon Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal and others, AIR 1980 SC 1201 and Nathilal Khandelwal and Ors. v. Dharmendra Kumar and Ors., 1979 Allahabad Law Journal 857 . He further contended that if Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal, AIR 1980 SC 1201 and Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 would have been cited and considered, the observations made in Desh Raj v. Om Prakash, 1988 (2) R.L.R. 173 para 3, would not have been made and as such the said observations have been made per incurium . Mr.
v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 would have been cited and considered, the observations made in Desh Raj v. Om Prakash, 1988 (2) R.L.R. 173 para 3, would not have been made and as such the said observations have been made per incurium . Mr. Shishodia, Senior Advocate also contended that in both the suits it is not proved from the evidence on record that the said delay in the deposit of rent of the month of February, 1983 was wilful or contumacious and as such the defence could not be struck out. He relied upon Bhagwan Das v. Murti Mandir Ganeshji, 1991 (1) RLR 619 , M/s. Suman Stationers v. Banshilal, 1993 (1) WLN 231 and Prahlad Kumar v. Babulal, 1990 (2) RLR 649 . He lastly contended that the judgment of the appellate court is no judgment in the eye of law. 4. In reply, Sri Prakash Tatia, learned counsel for the plaintiff-respondent, contended that even taking into consideration Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal, AIR 1980 SC 1201 , Mathura Prasad Sarjoo Jaiswal v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 and Vishan Das v. Savitri Devi, 1988 (1) RLR 1 (FB) , the result of the cases would remain the same as the defendant-appellants have failed to show in both the cases that due to sufficient cause delay occurred in depositing the rent of the month of February, 1983 particularly when business was regularly carried out in the suit shops without closing them for a single day during the said period. He also contended that even according to them only one defendant in both the cases fell ill and nothing has been said as to why the other defendant who was looking after the business could not deposit the rent in time. He further contended that in their applications for the extension of time, they simply sought extension for 15 days only and admittedly the amounts of the rent of February, 1983 were not deposited even in this desired extended period and as such there existed no cause what to say of sufficient cause for condonation of delay under Section 5, Limitation Act as laid down in Vishan Das v. Savitri Devi, 1988 RLR 1 (FB) .
He also contended that the words "wilful" and contumacious do not appear either in sub-section (1) or in sub-section (5) of Section 13 of the Act and courts cannot supply them under the guise of interpretation. He further contended that the trial court and appellate court have held that the suit shops are reasonably and bonafide required by the plaintiff- respondent, the defendant-appellants would not suffer greater hardship and the partial eviction is not possible and these concurrent findings of fact are not open for challenge in the second appeals. He lastly contended that no elaborate judgment of the appellate court was required when it was concurring with the findings of the trial court particularly when the evidence of the plaintiff-respondent has gone unrebutted. 5. No substantial question of law arises in these appeals. Even taking into consideration Jai Singh Jai Ram Tyagi v. Maman Chand Ratilal, AIR 1980 SC 1201 , Mathura Prasad Sarjoo Jaiswal v. Dossi Bai N.B. Jeejeebhoy, AIR 1971 SC 2355 and Vishan Das v. Savitri Devi, AIR 1988 Raj. 198 (FB) , result relating to the default remains the same in both the cases. It has been observed by the Full Bench in Vishan Das v. Savitri, 1988 RLR 1 in para 10 , as follows:- ".......It will also not render the Court powerless to extend the time if the tenant is able to satisfy the Court that he was prevented in not depositing or paying the rent within time for sufficient cause, and thereafter, the Court is justified in not striking out the defence, otherwise it would be nothing sort of miscarriage of justice. The court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted." On March 15, 1983, in both the suits, the defendant-appellants moved similar applications for the extension of 15 days' time. Admittedly, amounts of rent of February, 1983 were not deposited within the desired extended period i.e. up to March 30, 1983. It is stated in para No. 3 of the memorandum of second appeal that extension of time was sought due to the illness of the defendant- appellant Mohammad. 6. It is not the case of the defendant-appellants in any second appeal that the suit shop remained closed on account of the illness of the defendant-Mohammad.
It is stated in para No. 3 of the memorandum of second appeal that extension of time was sought due to the illness of the defendant- appellant Mohammad. 6. It is not the case of the defendant-appellants in any second appeal that the suit shop remained closed on account of the illness of the defendant-Mohammad. When the business could be carried out in the suit shops, the rent of the month of February, 1983 could also be deposited in desired extended time by the defendant who was carrying on the business. No cause what to say sufficient cause has been given in these applications for the extension of time. Even in the desired extended time, amounts of the rent of February, 1983 were not deposited. They were deposited even after 15 days of the desired extended time. As such it is not necessary to refer the case to the Hon'ble Chief Justice for constitution of a larger Bench to consider whether the observations made in para 3 of Om Prakash v. Desh Raj, 1988 RLR 1 73 , requires re-consideration in view of Jai Singh Jai Ram Tyagi etc. v. Maman Chand Ratilal and Ors., AIR 1980 SC 1201 and Mathura Prasad Sarjoo Jaiswal v. Dossi Bai N.B. Jeejeebhoy, AIR 1971 SC 2355 . 7. In these suits, the plaintiff was not required to prove that the default committed in depositing the amounts of rent of the month of February, 1983 was wilful, deliberate or contumacious as these words do not find mention in sub- section (5) of Section 13 of the Act. It plainly says that if tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. It is well- settled law that it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Reference of Renuka Bose v. Rai Manmath Nath Bose , AIR 1945 PC 108 , Assessing Authority v. East India Cotton Manufacturing Company Ltd. , AIR 1981 SC 1610 at page 1615 para 6, British India General Insurance Co. Ltd. v. Capt.
Reference of Renuka Bose v. Rai Manmath Nath Bose , AIR 1945 PC 108 , Assessing Authority v. East India Cotton Manufacturing Company Ltd. , AIR 1981 SC 1610 at page 1615 para 6, British India General Insurance Co. Ltd. v. Capt. Itbar Singh , AIR 1959 SC 1311 at page 1334 para 13, Ram Narain v. State of U.P. AIR 1957 SC 18 para 10 and Jumma Masjid v. Kodimaniandra, AIR 1962 SC 847 at page 850 para 8 may be made here. A matter which should have been, but has not been, provided for in a statute cannot be supplied by courts, as to do so will be legislation and not construction. See Doom Singh v. P.C. Sethi, AIR 1975 SC 1012 at page 1016 and Tarulala Shyam v. Commissioner of Income Tax, AIR 1977 SC 1803 at page 1811 . It has been observed in S.T. Commissioner, U.P. v. Parson Tools and Plants, AIR 1975 SC 1039 at page 1045 para 18 as follows:- "We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to consistent with such expressed intent of the law-giver; more so if the statute is a taxing statute. We will close the discussion by recalling what Lord Hailsham (at p.11 in Pearlberg v. Varty, (1972) 2 All ER 6, has said recently in regard to importation of the principles of natural justice into a statute which is a clear and complete Code, by itself : "It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger decree of say in the making of a decision than a statute accords him.
But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger decree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment." Sub-section (1) of Section 13 of the Act starts as under:- "(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied." Decree for eviction may be passed against a tenant if he is not ready and willing to pay rent to the full extent allowable by the Act. The requirement that default must be deliberate, wilful or contumacious runs counter to the above-quoted provisions. These aspects have not been considered in any of the reported decisions of this Court, cited by the learned counsel for the defendant-appellants. 8. Both the lower courts have concurrently held that the plaintiff-respondent requires the suit shops reasonably and bonafide for the hostel of the boys, it would suffer greater hardship if the ejectment-decrees are not passed and partial eviction is not possible. These are findings of fact. It is correct that the common judgment of the appellate court is not elaborate as it should be on these points. It is not necessary for an appellate court to incorporate all reasons in support of its finding when it concurs with the findings of the trial court. It may be mentioned here that in both the cases the plaintiff's evidence has gone unrebutted as the defence was struck out. 9. Accordingly, the second appeals are dismissed. No order as to costs.
It may be mentioned here that in both the cases the plaintiff's evidence has gone unrebutted as the defence was struck out. 9. Accordingly, the second appeals are dismissed. No order as to costs. The defendant-appellants are given time up to December 31, 1994 for vacating the suit shops and delivering their actual and physical possession to the plaintiff-respondent provided they remit the entire amounts of arrears of rent and mesne profits up to 31st December, 1994 and costs of both the subordinate courts, by money orders or deposit in the Bank Account of the plaintiff and furnish undertakings in the trial court that they would deliver actual and physical possession of the suit shops by or before December 31, 1994 to the plaintiff and would not part with their possession during this period, both within two months from today.