Hemraj v. Chandra Prakash — 1996 DIGILAW 1156 (RAJ)

JUDGMENT : 1. The defendant-petitioner has preferred this revision petition under Section 115, CPC against the order of the learned Addl. district Judge No. 2, Jodhpur dated 19.8.1995 whereby the learned Addl. Distt. Judge dismissed the appeal of the petitioner and upheld the order of the trial Court dated 5.12.1994 by which the learned trial Court allowed the application filed by the non-petitioner-plaintiff under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act. 2. The plaintiff filed a suit for eviction and recovery of rent against the petitioner-defendant. In that suit, the trial court, by its order dated 20.7.1988, determined provisional rent under Section 13(3) of the Act up to June 1988. The provisional rent was Rs. 1,425.38p. The defendant deposited the above rent on 26.7.1988. The petitioner was also to continue to deposit in Court or pay to the landlord month by month the monthly rent subsequent to the period up to which determination has been made, by 15th of each succeeding month or within such further time; not exceeding 15 days, as may be extended by the Court, at the monthly rate at which the rent was determined by the Court under Section 13(3) of the Act. However, the defendant moved an application under Section 13(5) of the Act on 17.10.1992 alleging therein that the plaintiff has not complied with the order passed by the Court and did not deposit the subsequent rent as per provisions of Section 13(4) of the Act. He, therefore, prayed that the defence of the defendant against eviction be struck out. A notice of the above application was given to the defendant- petitioner who filed reply and asserted that he has deposited rent and did not commit any default. He, therefore, prayed that the application filed by the plaintiff be dismissed. 3. The trial Court, by its order dated 5.12.1994, held that the defendant committed several defaults in payment of rent. He, therefore, found that the plaintiff became entitled to seek order of the Court for striking out the defence of the defendant against eviction in terms of Section 13(5) of the Act. He, therefore, allowed the application of the plaintiff. The defendant felt highly aggrieved the above order and filed an appeal before the learned appellate Court. The defendant further submitted an application under Section 5 of the Limitation Act praying for condonation of delay. He, therefore, allowed the application of the plaintiff. The defendant felt highly aggrieved the above order and filed an appeal before the learned appellate Court. The defendant further submitted an application under Section 5 of the Limitation Act praying for condonation of delay. The contention of the defendant before the learned appellate authority was that the defendant never committed any default in payment of rent and he always deposited rent in advance. The whole trouble started on account of the misconception of the defendant that the rent deposited in advance before the determination of rent under Section 13(3) of the Act was not adjusted in determination of the provisional rent and that he was entitled to adjust the same for the subsequent period. Even after determination of rent, he continued to deposit the rent for many months at a time and he thought that he is depositing rent in advance. It was, therefore, clearly a bonafide mistake but the learned appellate Court was not persuaded to accept the explanation offered by the defendant. The appeal of the defendant was, therefore, dismissed by the impugned order. 4. I have heard learned course for the petitioner and the non-petitioner. 5. Learned counsel for the petitioner has very candidly conceded that there has been default in payment of rent after its determination made by the Court on 20.7.1988. His explanation is that the defendant has been depositing rent in advance and it was never his intention to commit any default. His intention was always bonafide and it can be gathered from the series of deposits made by him. The error was committed when the defendant thought that the rent that had been deposited by him prior to the determination of rent under Section 13(3) of the Act would be adjusted against the rent falling due in respect of subsequent months. He, therefore, continued to deposit rent for several months at a time always under the impression that he was depositing rent in advance. The defendant was not aware of the fact that rent deposited by him had been adjusted towards the rent found due after determination made by the trial Court. The plurality in defaults was not intentional but accidental and it was the result of misconception which the defendant entertained bonafide. The defendant was not aware of the fact that rent deposited by him had been adjusted towards the rent found due after determination made by the trial Court. The plurality in defaults was not intentional but accidental and it was the result of misconception which the defendant entertained bonafide. The learned trial Court made a chart of the deposits made by the defendant and calculated that the defendant committed several defaults and that he was not entitled to the exercise of discretion in his favour. The learned appellate Court also did not appreciate that the defendant filed application under Section 5 of the Limitation and gave a very plausible and satisfactory explanation for the defaults committed by the defendant inadvertently and as a result of the initial mistake and misconception. It was a bonafide mistake and the trial Court as well as the appellate Court committed illegality or irregularity in the exercise of jurisdiction in failing to condone the above delay. Learned counsel has submitted that the order striking out defence is not mandatory but directory and the Court has been invested with the power to exercise its discretion judicially and to determine whether in the facts and circumstances of the case the delay can be condoned. In the instant case, as submitted the initial mistake was committed by the defendant in thinking that the rent deposited in advance prior to the determination of the rent would be adjusted against the rent which may fall with the subsequent months. the subsequent defaults was the result of this single bonafide mistake. It was really a single mistake which gave rise to several defaults. While depositing subsequent rents, the defendant only mentioned in the challans that he was depositing rent for months though he did not clearly specify the particular months for which he was depositing the rent. Learned counsel has relied on Ramesh Chandra v. Manmohan singh, 1988 (2) RLR 194; Prahlad Kumar v. Babulal, 1990 (2) RLR 649 and Ms. Sunmoon Stationers v. Banshilal, 1993 (1) WLN 221. 6. Learned counsel for the non-petitioner has supported the orders of the Courts below. Learned counsel has relied on Ramesh Chandra v. Manmohan singh, 1988 (2) RLR 194; Prahlad Kumar v. Babulal, 1990 (2) RLR 649 and Ms. Sunmoon Stationers v. Banshilal, 1993 (1) WLN 221. 6. Learned counsel for the non-petitioner has supported the orders of the Courts below. He submitted that the trial Court as well as the trial Court made correct and complete calculation of the rent that fell due and the rent deposited by the defendant and then came to the conclusion that the defendant was guilty of committing default in payment of rent for several months. There is a concurrent finding of fact of both the Courts below and in revisional jurisdiction no interference is allowed by law. On merits also he submitted that while passing the order fixing provisional rent under Section 13(3) of the Act, the Court clearly made adjustment of the rent found deposited by the defendant. The order was in respect of the balance that remained on calculation of the rent for the month of June, 1988. If the defendant had read the determination order, there was no likelihood of any mistake being committed or misconception being entertained. Furthermore, whenever the defendant deposited rent he never cared to see whether his calculation was correct. He very inadvertently only stated in the challans that he was depositing rents for so many months without specifying the particular months for which the rent was being deposited. It was not, therefore, a bonafide mistake but a wilful one and both the Courts committed no jurisdictional error whatsoever in order for striking out the defence against eviction under Section 13(5) of the Act. 7. I have considered the rival contentions carefully and also perused the case law cited before me. 8. In Ramachandra v. Manmohan Singh case, a reference was made to the Full Bench Decision of this Court in Bishandas v. Savitri Devi, 1988 (1) RLR 1. In that case, placing reliance on several decisions of the Supreme Court, it was held that Section 13(5) of the Act is directory and not mandatory and that Section 5 of the Limitation Act can be applied to the deposit of rent under Section 13(4) of the Act. 9. In Prahalad Kumar v. Babulal (supra) it was again reiterated that provisions of striking out defence contained in Section 13(5) of the Act are directory and not mandatory. 9. In Prahalad Kumar v. Babulal (supra) it was again reiterated that provisions of striking out defence contained in Section 13(5) of the Act are directory and not mandatory. The facts of the case were that the defendant tenant deposited all the rent except the rent for a particular month. It was held that the lower Court should have exercised discretion in favour of the tenant and ought not to have ordered for striking out the defence against eviction. 10. A similar view was taken in Ms. Sunoom Stationers v. Banshilal (supra). The facts of the case were that the defendant-appellant was making payment for two or months simultaneously and in the process by which the payment of previous month fell beyond the 15th day of month of which the rent was due, the rent for succeeding month was paid in advance. The finding that defendant has defaulted in making payment in time for every month was not substantiated from material on record. It was held that right to defend the suit is a very valuable right and before the same is taken away, strong ground must exist. It is only when the Court comes to the conclusion that default in making payment in terms of sub-sections (3) and (4) of Section 13 of the Act was wilful and contumacious, the court ought to have exercised discretion to strike out the defence. 11. From the above it is clear that the provisions contained in Section 13(5) of the Act are directory in nature and not mandatory. further, if an application under Section 5 of the Limitation Act is made, the Court is bound to consider it with reference to the facts and circumstances of the case and to determine judicially whether the defendant has been able to show that the default committed by him was neither wilful nor contumacious. It is thus clear that in suitable case, the Court has got the power to extend the time for depositing the rent beyond the period prescribed under Section 13(4) of the Act as also to condone delay committed by the defendant in depositing of rent if sufficient cause is shown and the mistake is bonafide. Now I will examine the merits of the case. Now I will examine the merits of the case. It is clear from the contentions made by the learned counsel for the petitioner that the initial mistake or error committed by in present case the defendant was to entertain the impression that the rent deposited in advance prior to the determination of rent under Section 13(3) of the Act had not been adjusted in the rent that was determined up to June, 1988 and that he would be entitled to adjust the same against the rent that fell due in respect of subsequent months. The trial Court has in detail calculated the rent that fell due and the rent deposited by the defendant and came to the conclusion that the defendant had committed default in respect of rent for several months. Similarly, the learned appellate Court took pains in making a chart of the rent that was deposited by the defendant against the rent which fell due and came to the conclusion that several defaults were committed by the defendant in the payment of rent. I am not convinced by the explanation canvassed at the bar that it was on account of the above initial error that the subsequent defaults resulted and that the mistake was bonafide and not wilful. In the first instance it was the duty of the defendant to apprise himself all the details of the determination. If he would have seen the provisional rent determination order passed by the trial Court, his mis-conception would have been removed immediately. Furthermore, whenever he deposited rent for several months simultaneously, he never cared to ascertain the specific months for which he was depositing rent. If he would have been a little vigilant, he would have discovered that he was committing defaults. Lastly, even when the plaintiff made an application under Section 13(5) of the Act making specific and categorical allegations of defaults in payment of rent committed by the defendant, the latter did not care to see whether the allegations made by the plaintiff were correct or not. At last, it was expected to have calculated the rent deposited by him and the rent that fell due. That is the reason he did not move any application under Section 5 of the Limitation Act. In these circumstances, I am not at all persuaded to hold that the mistake committed by the defendant was bonafide. At last, it was expected to have calculated the rent deposited by him and the rent that fell due. That is the reason he did not move any application under Section 5 of the Limitation Act. In these circumstances, I am not at all persuaded to hold that the mistake committed by the defendant was bonafide. It was wilful as well as contumacious. 12. Moreover, there is a concurrent finding of fact regarding the default committed by the defendant in payment of rent and the finding is based on correct facts and figures. 13. I do not find any ground to interfere with the impugned order. There is no force in the revision petition and it is hereby dismissed with costs.Petition dismissed.