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1996 DIGILAW 619 (RAJ)

Ganesh Daroga v. Beena Kumari

1996-05-28

ARUN MADAN

body1996
Honble MADAN, J. – The aforesaid appeal arises out of order, dated 2.2.1996, passed by Additional District Judge No.6, Jaipur City, Jaipur in civil suit No. 125/1995; whereby the application moved by plaintiff-respondent No.1, under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as `the Act) was allowed and the defence against eviction of the defen- dant-appellant was struke out. (2). The facts giving rise to the filing of this appeal, briefly stated, are that the plaintiff-respondent filed a suit for eviction against the defendant-appellant in respect of residential premises let out to him on the grounds inter alia : (a) default in payment of rent, (b) sub-letting and (c) denial of title. It was alleged in the plaint that monthly rent was Rs. 30/- and the provisional rent was determined w.e.f. 13.4.1987. During the pendency of the proceedings in view of the default in payment of rent committed by the defendant, the plaintiff filed an application under Section 13(5) of the Act of 1950 contending therein that the defendant had neither paid nor deposited the monthly rent and also the provisional rent determined by the Court. Since the defendant did not even file the reply to the aforesaid application not- withstanding the directions of the trial Court in this regard within time, defendant filed an application for condonation of delay on 14.11.1994 contending therein that the delay in payment of rent was bona fide and that the same be condoned. It was further contended by the defendant that the rent for the following period was depo- deposited in the bank account of the plaintiff :– Months Date of Deposit August 1987 17.9.1987 Sept., Oct. It was further contended by the defendant that the rent for the following period was depo- deposited in the bank account of the plaintiff :– Months Date of Deposit August 1987 17.9.1987 Sept., Oct. & Nov., 1987 26.11.1987 March, April, May & June, 1988 25.4.1988 August, September & October, 1988 30.9.1988 It is apparent from the above statement furnished by the appellant in the memo of appeal that notwithstanding the fact that the rent had to be deposited or paid by the defendant in accordance with the direction of the Court in view of the fixation of provisional rent under Section 13(5) of the Act by 15th of each succee- ding month, the appellant had deliberately with some ulterior motives not deposited the rent withim time and thereby violated the directions of the trial Court and this fact is apparent from the above statement that the purposely accumulated the rent for 2 to 3 months simultaneously and thus flouted the orders passed by the trial Court. The trial Court after hearing the learned counsel for the parties passed the impugned order on 2.2.1996 aggrieved by which this appeal has been preferred to this Court. (3). In the grounds convassed on behalf of the appellant, it has been contended inter-alia that the trial Court erred in allowing the plaintiffs application filed under Section 13(5) of the Act by not condoning the delay in payment of rent as well as the delay in depositing the provisional rent as fixed by the trial Court and hence the trial Court had erred in striking out the entire defence against eviction of the defendants from the suit premises and that the impugned order was liable to be quashed. (4). During the course of hearing Shri B.L. Agrawal, learned counsel for the appellant contended at the bar that the delay was not wilful but was bonafide and had occurred due to the circumstances beyond control of the appellant. No plausible cause for condonation of delay was stated by the learned counsel for the appellant, in absence of which it becomes quite clear that the delay was wilful and deliberate and it does not deserve to be condoned by this Court. No plausible cause for condonation of delay was stated by the learned counsel for the appellant, in absence of which it becomes quite clear that the delay was wilful and deliberate and it does not deserve to be condoned by this Court. This fact is borne out from the statement regarding the deposits of monthly rent as stated in ground D of the memo of appeal from which it is clearly apparent that the rent for August, 1986 was deposited on 17th September, 1987, for September, October and November 1987 was deposited on 26th November, 1987, for March, April, May and June, 1988 was deposited on 25th April, 1988 and for the months of August, September and October, 1988 was deposited on 30th September, 1988. On the question of delay in depositing the rent for the above months, learned counsel for the appellant stated at the bar that the delay had occurred on account of the illness of the appe- llant for which he had furnished the medical sickness and fitness certificate of the Doctor concerned and in the interest of justice the delay ought to have been condoned. In this regard, learned counsel for the appellant was asked specific question by this Court during the course of hearing as to what was the reason for the appellant in not appointing an attorney who could act on his behalf for deposi- ting monthly rent in time, this Court was told that he could not appoint any such attorney nor he could request anybody else on his behalf for depositing the rent in time. This obviously shows the attitude of the appellant who had deliberately committed delay in depositing the rent in time. Even taking the fact regarding illness of the appellant to be true, I find no plausible justification in condoning the delay by the trial Court in not depositing the rent within stipulated time for the period in dispute. This obviously shows the attitude of the appellant who had deliberately committed delay in depositing the rent in time. Even taking the fact regarding illness of the appellant to be true, I find no plausible justification in condoning the delay by the trial Court in not depositing the rent within stipulated time for the period in dispute. This fact is fortified from the judgment of the trial Court wherein it has been specifically observed that Ganesh Daroga (appellant) and Gajanand Daroga (respondent No. 2) are real brothers who were defendants in the suit and if one of them was ill, then there was no reason for the second defendant in not having taken prompt steps in depositing the rent in time with a view to escape consequence of default against payment of rent as the same would not have not resulted in striking of the defence of the defendant under Section 13(5) of the Act, if necessary, and immediate steps were taken in this regard. Hence submission of the medical certificate is not a cogent ground for condonation of delay in depositing monthly rent in time or the provisional rent as determined by the Court under Section 13(3) of the Act, since the provisions of the Act are mandatory and not directory in nature. Section 13(3) of the Act reads as under:– ``In a suit for eviction or the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section the Court shall, on the first date of hearing or on any other date as the Court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in Court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent there to upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six per cent per annum from the date when such amount was payable upto the date of determination: Provided that while determining the amount under this sub- section the Court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit. Section 13(5) of the Act reads as under : ``If a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. Since it is a case of persistent defaults in payment of rent committed by the appellant, I am of the considered opinion that the trial Court was perfectly justified in passing the impugned order under Section 13(5) of the Act as a consequence of which the defence of the appellant against eviction from the suit premises was struck down by the trial court. I am further of the opinion that the very purpose of the legislature in making the aforesaid enactment would stand defeated and lost if the parties are permitted to be given undue latitude in depositing the rent when the delay has occurred wilfully and the said party should be strictly dealt with and should not be permitted to escape the consequence of default by production of medical certificate. The legislature has not envisaged any such provision under the Act since even if delay has to be condoned in appropriate circumstances sufficient and cogent grounds have to be made out for condonation of default. The trial Court has recorded well reasoned finding on the question of condonation of delay by observing in the impugned order that time and again same lame excuse regarding illness of the defendant-appellant was adopted for condonation for which there is no justification at all and that the application was consequently rejected resulting in striking of the defence against eviction of the defendant- appellant. The trial Court has also observed in the impugned order that the appellant was not even de- ligent in his approach by not filing the reply to the application moved by the respondent within time and for this purpose repeated adjournments were sought. The trial Court has further observed in the impugned order that in absence of sufficient cause in depositing the rent which remained unrebutted and un-explained by the defendant, the defence against eviction deserves to be struck out against the defendant-appellant. (5). During the course of hearing Shri R.K. Agrawal learned counsel for the respondent, while controverting the contentions advanced by the learned counsel for the appellant contended at the bar that the delay in depositing the rent including the provisional rent as determined by the trial Court was wilful and deliberate, which does not deserve to be condoned either by the trial Court or in appeal by this Court. It was further contended by the learned counsel for the respondent that if the intentions of the appellant/tenant were bonafide, then he ought to have moved an application seeking extension of time or for condonation of delay as on the date of first deal itself which admittedly has not been done by the appellant but the rather allowed the rent to be accumulated and committed series of persistent defaults and thereafter at a much later stage moved an application for condonation of delay on the ground of his illness which does not deserve to be condoned by the trial Court or by this Court. In support of his contentions, learned counsel for the respondent placed reliance upon the judgment of this Court in the matter of Firm Gaurav Video Library vs. Prem Kumar Gupta (1), wherein this Court has held as under :– ``The words ``within 15 days of the succeeding month mean that the payment of monthly rent should be made or the rent may be deposited in the Court on or before the expiry of 15 days of the succeeding month of the tenancy. This is a statutory period provided under the law, but this can be extended by the Court on showing a sufficient cause for the delay, but in the present case, neither any request for the extension of the time was made nor was any application for the same moved and admittedly the amount of monthly rent was not de- posited within the prescribed period of 15 days and, therefore, the learned lower Court was justified in striking out the defence. I am in full agreement with the ratio of the above judgment of this Court and I am of the considered opinion that the words ``within 15 days of the succeeding month as envisaged under Section 13(3) of the Act of 1950 evidently mean that the payment of monthly rent should be made by the tenant on or before the expiry of 15 days of the succeeding month of the tenancy. This is a statutory period under the Act for which there is no scope for extension or relaxation and the provision is mandatory and not directory in nature as so contended by the learned counsel for the appellant. If the intention of the legislature was to make the said provision directory, then the legislature would not have specifically incorporated the aforesaid provision in the statute ``within 15 days of the succeeding month. I am further of the opinion that the aforesaid statutory period provided under the law can be extended by the Court only in appropriate and deserving cases subject to sufficient cause being shown by the defaulting tenant, but in the present case neither any application for extension of time was made within time for any justificable cause was explained to the trial Court for condonation of delay, hence I am of the considered opinion that the trial Court was fully justified in passing the impugned order which has resulted in striking out the defence of the appellant against eviction under Section 13(5) of the Act. Hence the question of enlargement of time is entirely out of context and is ruled out and the defence has rightly been struck out by the trial Court. The extension of time as stated above could be prayed before the trial Court by the appellant. If he had bonafide intentions before the delay had occurred but on the contrary not after commission of series of defaults as has happened in this case. The extension of time as stated above could be prayed before the trial Court by the appellant. If he had bonafide intentions before the delay had occurred but on the contrary not after commission of series of defaults as has happened in this case. If the delay is to be condoned in such a manner, then unscrupulous tenants would take advantage of the condonation by taking the defence of frivolous sickness and by procuring the medical certificates for condonation of delay in each and every case which would not be permitted. (6). In the matters of Mrs. Manju Choudhary vs. Dulal Kumar Chandra (2) and Manmohan Kaur vs. Surya Kant Bhagwani (3), it was held by the Apex Court that if the delay is not explained or the explanation furnished by the tenant is one which is not acceptable to the Court, then the Court must strike out the defence and there is not scope for exercise of discretion by condoning the delay which apparently is wilful and deliberate. The Apex Court has observed that in such circumstances the Court is bound to strike out the defence against eviction. (7). In the matter of K.S. Sundaraju Chettiar vs. M.R. Ramachandra Naidu (4), the question which had arisen for consideration of the Apex Court was regarding interpretation and the scope of Section 10(3) (a) (iii) of T.N. Buildings (Lease and Rent Control) Act, 1960. It was held by the Apex Court that the Rent Acts are not merely for protecting the tenants but are meant for regulating incidence of tenancy and inter-se rights and obligations of landlords and tenants. It was further held by the Apex Court as under : ``We may also indicate here that the appellate authority has specifically held that for the expansion of the business of the landlord styled as Sunder Jewellery no further space was required to be separated. Such finding has not been challenged before the High Court and also before us. It therefore appears to us that the said Pown broking business requires to be run separately. Hence, we uphold the order of remand to the limited extent, namely, that the appellate authority on the basis of materials already on record would consider the actual requirement of space for the said partnership business consistent with the nature of business styled as Govindammal and Company after keeping in view, the expanding activities in such business. Hence, we uphold the order of remand to the limited extent, namely, that the appellate authority on the basis of materials already on record would consider the actual requirement of space for the said partnership business consistent with the nature of business styled as Govindammal and Company after keeping in view, the expanding activities in such business. If on such consideration, the appellate authority comes to the finding that the landlord bonafide requires the disputed premises for running the said business in a separate enclosure, the order of eviction under Section 10(3) (a) (iii) of the Rent Act should be passed by the appellate authority. (8). In the above cases the Apex Court has taken the view that there is a duty cast on the court to strike out the defence if there is a failure of the tenant to deposit the arrears of rent within 15 days. Since both, the trial Court as well as High Court had found that there was in fact a delay to pay the arrears of rent on the part of the tenant which was wilful and unexplained, the Apex Court held that it was not appropriate for the Apex Court to interfere with the order passed by the High Court and the appeal preferred by the tenant was accordingly dismissed. (9). I have heard learned counsel for the parties at length and have also examined the legal position on the subject as well as the proposition of law laid down by the Apex Court as well as this Court and I am of the considered opinion that the approach adopted by the trial Court in striking out the defence against eviction by the appellant under Section 13(5) of the Act of 1950 is fully justified and is in accordance with law. (10). As a result, the appeal is devoid of merit and is dismissed. The order, dated 2.2.1996 passed by learned Additional District Judge No.6, Jaipur City, Jaipur in Civil Suit No. 125 of 95 is confirmed. There is no order as to costs.