Research › Browse › Judgment

Rajasthan High Court · body

1996 DIGILAW 902 (RAJ)

Pukhraj v. Maheshwari Samaj

1996-08-12

P.C.JAIN

body1996
Honble JAIN, J. – By his order dated 31.10.1995, the learned Additional District Judge No.2 Jodhpur dismissed the appeal filed by the defendand- petitioner upholding the order dated 20.2.1995 passed by the learned trial court, by which, the defence against eviction of the defendant-petitioner was struck off under s.13(5) of the Rajasthan Premises (Control of Rent and Eviction )Act (No.XVII of 1950 ) for short the `Act herein). (2) The facts of the case lies in a very short compass. The Plaintiff-non-petitioner filed a suit for ejectment and arrears of rent against the defendant-petitioner entirely on the ground of defaults committed by the defendant-petitioner in payment of rent for more than six months. The trial court vide its order dated 4.11.1981 determined the rent under s.13(3) of the Act. It appears that the petitioner did not deposit the rent within the time allowed by the court to deposit the above determined rent and instead the petitioner preferred an appeal against the order dated 4.11.1981 passed by the learned trial court and that appeal came to be dismissed vide order dated 24.8.1992. It further appears that the plaintiff-non-petitioner moved an application on 27.3.1993 under s.13(5) of the Act for striking out the defence of the defendant-tenant was that since he had preferred an appeal against the order dated 4.11.1981, he did not deposit the rent. However, he deposited the dues before the plaintiff-non- petitioner moved an application under s.13(5) of the Act and as there was no rent due from the defendant-petitioner on the date the application under s.13(5) of the Act was made, the learned trial court erred in passing the po- sitive order in favour of the plaintiff-non-petitioner under s.13(5) of the Act. Similarly, the learned appellate court also erroneously upheld the above order . (3) I have heard the learned counsel appearing for the defendant- petitioner. (4) The learned counsel appearing for the petitioner has placed strong reliance on a decision of this Court in Sunmoon Stationers V. Banshilal (1) and parti- cularly the observations contained in para 58 of the above judgment. (5) I have considered the arguments and perused the record of the case. (6) A few facts which are not in dispute may be stated at the very outset. The rent was determined by the trial Court under s.13(3) of the Act on 4.11.1981. (5) I have considered the arguments and perused the record of the case. (6) A few facts which are not in dispute may be stated at the very outset. The rent was determined by the trial Court under s.13(3) of the Act on 4.11.1981. The defendant-petitioner did not deposit or paid the above determined rent within the time specified by the court. The defendant-petitioner preferred an appeal against the order dated 4.11.1981 which was dismissed on 24.8.1992. It is an admitted fact that the defendant-petitioner did not deposit the rent from 1.4.1981 to 24.8.1992 for a period of 11 years. (7) There is plethora of precedents that the provisions contained in s.13(5) of the Act are directory in nature and the order passed under s.13(5) of the Act is penal in nature. The court has ample power and discretion to extend the period and condone the delay if the tenant can satisfy the court about his bonafide actions and sufficient cause for not carrying out the order of the court in depositing the rent within the time allowed by it. The question of wilful conduct of the tenant is material for determining the nature of order to be passed under s.13(5) of the Act. In the instant case, the defendant-petitioner did not obtain any order from the appellate court staying the operation of the order passed by the trial court dated 4 .11.1981 determining the rent. Thus, the defendant-petitioner has made defaults in payment of rent for 11 years.It may be correct that the defendant- petitioner deposited the above rent after the dismissal of the appeal and before the application is moved by the plaintiff-non- petitioner under s.13(3) of the Act. Thus, the defendant-petitioner has made defaults in payment of rent for 11 years.It may be correct that the defendant- petitioner deposited the above rent after the dismissal of the appeal and before the application is moved by the plaintiff-non- petitioner under s.13(3) of the Act. In this connection, the learned counsel for the petitioner has referred to the observations contained in para 58 of the judgment in M/s Sunmoon Stationers case (supra), which are as under: `` In the aforesaid view of the matter, I am of the opinion, that when there is no dispute that in fact, no amount is outstanding, the rent for the month for which he has not paid within time allowed but alongwith the succeeding months rent which was deposited in advance, and no rent was due at the time when the application for striking out the defence was moved and there is nothing on record to assume or come to conclusion that such late deposit was as a result of wilful and contumacious conduct, as the discretionary power ought to have been exercised in favour of not striking out the defence of the tenant. (8) The main thrust of the argument of the learned counsel for the petitioner is that since it was found that the tenant has deposited the rent due from him before the application under s.13(5) of the Act was moved by the plaintiff-non-petitioner,no order striking out the defence can be passed. I am afraid this is not the correct interpretation of the observations made in para 58 of the above Judgment. In that case on the facts of the case, it was found that no amount was outstanding against the tenant and he deposited the rent within the time allowed. He further deposited the rent in advance. In this context, the words ``and no rent was due at the time when the application for striking out the defence was moved were used. (9) Indeed such a meaning cannot be accorded to the above observations ina- smuch the same runs counter to the language used in s.13(5) of the Act. S.13(5) of the Act reads as under : `` S.13(5). (9) Indeed such a meaning cannot be accorded to the above observations ina- smuch the same runs counter to the language used in s.13(5) of the Act. S.13(5) of the Act reads as under : `` S.13(5). If a tenant fails to deposit or pay any amount referred to in sub-s.(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 may be stated here that an order passed under s.13(4) of the Act consists of two parts :(i) the tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-s.(3) within 15 days from the date of such determination or within such further time, not exceeding three months, as may be extended by the court; and (ii) that the tenant shall contiune to deposit, in court or pay to the landlord month by month, the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-s.(3) Sub-s.(5) of s.13 of the Act refers to the contingency which occurs on account of alleged failure of the tenant to carry out the obligations enjoined by s.13(4) of the Act.Sub-s. (5) of s.13 of the Act says that the court may order the defence against eviction to be struck out, if the tenant fails to deposit or pay any amount referred to in s.13(4) of the Act. In other words as soon as a tenant fails to carry out the mandate contained in s.13(4) of the Act, the court may pass a penal order striking out the defence against eviction taking in to consideration all the facts and circumstances of the case. It is not the intention of s.13(5) of the Act that the tenant have a liberty of flouting the provisions of s.13(4) of the Act and to defeat the right of the landlord under s.13(5) of the Act by showing that he had deposited all the due rent before the application under s.13(5) of the Act was filed. It is not the intention of s.13(5) of the Act that the tenant have a liberty of flouting the provisions of s.13(4) of the Act and to defeat the right of the landlord under s.13(5) of the Act by showing that he had deposited all the due rent before the application under s.13(5) of the Act was filed. In my considered opinion, the tenant incurs the liability of his defence being struck out as soon as he fails to carry out the obligations as contained in s.13(4) of the Act. However,the tenant may Persuade the court to condone the delay, if he can convince of his bonafide conduct or sufficient cause for not deposition the rent in time . (10) In the instant case, the tenant-defendant-petitioner has the audacity of flouting the obligations contained in s.13(4) of the Act for so many years. If a tenant fails for such a long period to deposit the rent and carry out the obligations contained in s.13(4) of the Act, his conduct can definitely be said to be wilful and contumacious. Hence,the tenant-defendant-petitioner was not entitled to have condone the delay by the trial court. (11) Thus, the courts below have not committed any jurisdictional error in allowing the application of the tenant in striking out the defence of the tenant defendant-petitioner under s.13(5) of the Act. For the aforesaid reasons, there is no force in this revision and it is hereby dismissed with no order as to costs.