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2003 DIGILAW 1346 (RAJ)

Satya Prakash v. Madan Lal

2003-09-23

BHAGWATI PRASAD

body2003
JUDGMENT : 1. - Present revision petition arises out of an order by the trial court deciding issue No. 2 and certain applications. The trial court has held issue No. 2 against the petitioner defendant. Petitioner defendant was a tenant in two shops owned by plaintiff respondent in terms of rent deed executed on 1.3.85. He was inducted as a tenant but after May, 1992, the petitioner tenant discontinued to pay the rent personally. The tenant wrote a letter to the landlord on 27.8.1992. By this letter, the petitioner sought information regarding Bank account number of the landlord. The landlord respondent informed the tenant about his Bank account number on 4.9.92. The landlord on 31.10.92 terminated the tenancy of the petitioner defendant. Consequent thereto he filed a suit for ejectment of the petitioner on the basis of default and other grounds on 10.12.92. The petitioner filed an application under Order 7 Rule 11 C.P.C. on 7.2.94 alleging that the plaintiff has filed a suit earlier on the basis of first default, the rent had not been determined in that suit and, therefore, no second suit can be maintained on the ground of default, therefore, the suit is liable to be dismissed. This application under Order 7 Rule 11 C.P.C. was dismissed by the trial court and it was held that there was cause of action available to the plaintiff and, therefore, maintainability of the second suit was upheld. Such order was not challenged by the petitioner. The order dated 16.4.94 having not been challenged by the petitioner has become final. 2. The petitioner defendant filed written statement in the suit on 18.8.94. On 29.3.95 issues were framed. Another issue being number 4 was decided against the defendant, which relates to admissibility of the rent note. After that evidence of the plaintiff was being recorded. On 7.10.95 petitioner defendant moved an application before the court under section 151 CPC. In this application it was averred that in the order where rent was determined in earlier suit, it has been held by the court that there is no rent due for the time in question. The second suit for default was, therefore, not maintainable. This application remained pending and the petitioner filed an application under Order 14 Rule 2 C.P.C. By the order impugned, the trial court disposed of issue No. 2. The second suit for default was, therefore, not maintainable. This application remained pending and the petitioner filed an application under Order 14 Rule 2 C.P.C. By the order impugned, the trial court disposed of issue No. 2. In view of the decision on issue No. 2, no findings were given on the application under Order 14 Rule 2 C.P.C. As regards the application u/s. 151, it was dismissed. Issue No. 2 as decided by the trial court by the order impugned reads as under:- D;k oknh izFke okn djkus fjDr ifjlj v/khu fdjk;snkj cvk/kkj O;frdze pqdkus fdjk;k izfroknh ds fo:) yfEcr jgrs gq, izfroknh }kjk iqu% O;froe dj nsus ds vk/kkj ij ;g nwljk okn ykus ds vf/kdkjh gS A 3. Learned counsel for the petitioner supported his case and submitted that the trial court had determined the rent in the previously instituted suit on 28.1.94 and came to the conclusion that no rent was due. Since the court came to a definite conclusion that no rent was due, the question of holding the tenant as defaulter did not arise and ultimately, the previously instituted suit was dismissed on 14.11.2000. Against this order, an appeal was preferred by the landlord, which was dismissed on 7.1.2003. The second appeal in this regard is alleged to be pending before this Court. It is also claimed that notices have been issued in that appeal. 4. While the first suit was having its sequence of events as aforesaid, the landlord filed a second suit on the ground of default of payment of rent on 4.11.93. In this suit, it was alleged that the tenant had not paid the monthly rent from November, 1992 to October, 1993. The allegations in the suit were denied by the petitioner and it was submitted that the landlord had already filed a suit, on a ground contained in section 13(i)(a) of the Rajasthan Premises (Control of Rent & Eviction) Act (for short `the Act'). It was claimed by the petitioner that during the pendency of the present suit, the landlord had no right to file a second suit against the tenant u/s. 13(1)(a) of the Act. Thus, the present issue was framed and it has been decided against the petitioner. Hence, this revision. 5. It was claimed by the petitioner that during the pendency of the present suit, the landlord had no right to file a second suit against the tenant u/s. 13(1)(a) of the Act. Thus, the present issue was framed and it has been decided against the petitioner. Hence, this revision. 5. According to the petitioner, legal position in this regard is that it is only when a tenant had neither paid nor tendered the amount of rent due from him for six months, then only he can be considered to be a defaulter and a suit can be filed. As and when such a suit for default is filed, rent can be determined under sub-section (3) of section 13 of the Act. In terms of section 13(3) of the Act, the Court has to calculate the rate or rent at the rate on which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination was made. The court is also required to determine the interest payable @ 6% p.a. The learned counsel for the petitioner further emphasised that in terms of sub-section (4) of section 13 of the Act, a tenant is bound to deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within 15 days from the date of such determination. After such determination, there is another obligation of the tenant that he has to continue to deposit in court or pay to the landlord month by month the monthly rent subsequent thereto. In terms of sub-sections (5) and (6), if tenant fails to deposit or pay any amount of rent as required by sub-section (4), his defence against eviction is liable to be struck. The learned counsel for the petitioner has emphasised that in terms of the scheme of sub-sections (3), (4), (5) and (6) of section 13, the tenant is liable to pay or deposit the rent for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month, previous to that in which such determination is made. Sub-section (4) also puts an obligation on the tenant to deposit or pay monthly rent upto the final disposal of the suit. 6. Sub-section (4) also puts an obligation on the tenant to deposit or pay monthly rent upto the final disposal of the suit. 6. The learned counsel for the petitioner plaintiff has thus inferred and argued that the courts are not entitled to assume the jurisdiction to try a suit alleged to be based on the ground of default contained in Section 13(1)(a) of the Act when one suit is already pending on the same ground. According to the scheme of the Act, the tenant is bound to deposit the rent in the court or pay to the landlord in a previously instituted suit. He is required to make payment for the period for which he might have defaulted and also for the period subsequent thereto upto the final conclusion of the suit. That being the position, the tenant cannot be ordered to pay or deposit monthly rent in two different suits for the same period at the same time to the very same premises to the same landlord. 7. According to the learned counsel, if the second suit is allowed to stand, then the petitioner tenant would be bound to deposit rent twice without having defaulted and if he failed to deposit the rent as ordered, his defence against eviction will be struck off and he will suffer a serious prejudice. In these circumstances, no cause of action has accrued to the landlord for the second suit on the ground of default and there is no question of any cause of action being there because (i) if tenant does not deposit or pay the monthly rent upto the final disposal of the previously instituted suit, then his defence against eviction shall be struck out; (ii) according to section 13(4) tenant shall continue to deposit in court or pay to the landlord monthly rent month by month upto the disposal of the suit then there is no question of default during the pendency of this suit; (iii) in the present case, according to the order of determination of rent dated 28.1.94 in previously instituted suit, petitioner/tenant was required to deposit or pay monthly rent to the landlord upto final disposal of previously instituted suit. Thus, the petitioner claims that the tenant cannot be ordered to be declared defaulter in two different suits for the same period. 8. Thus, the petitioner claims that the tenant cannot be ordered to be declared defaulter in two different suits for the same period. 8. The question of default of tenant cannot arise because in the first suit the trial court has held that no default has been committed. This has been so held for the period alleged to be the period of default in second suit. Therefore, the issue should be decided in favour of the petitioner. The learned counsel for the petitioner has further submitted that while a suit is pending on the ground of default, provisions of section 19(a) cannot be gone into and, therefore, the petitioner had no obligation when it has been held in the previously instituted suit that there was no default. He cannot be required to defend two suits on the ground of default for the same period. 9. Per contra, the defendant plaintiff has held that as and when the rent is deposited beyond the period prescribed, tenant cannot go out of the definition of a defaulter. It has been claimed on behalf of the plaintiff-defendant that until the determination of rent, if the tenant permits the lapse of time as contained in section 13(1)(a) then he is a defaulter. The landlord gets a cause of action to present a second suit. He has relied on a decision of this Court in United Commercial Bank v. Roop Ram, 1981 RLW 235. He has supported the above submission on the basis of a Supreme Court decision rendered in Shiv Dutt Jadiya v. Ganga Devi, 2002 WLC (SC) Civil 320. 10. It has been contended on behalf of the defendant that as and when a suit is filed on the basis of default by the plaintiff, the tenant does not get a licence of indefinite suspension of the requirement of paying rent month by month. He cannot delay the payment until the determination of rent in the pending suit because such delay gives the landlord a fresh cause of action. In the instant case, the rent has been paid by the tenant after six months. Thus, he has made himself liable to eviction. The intention of law cannot be made to be interpreted that a defaulter tenant who has defaulted and yet he waits for the period of determination of rent until the determination is made. In the instant case, the rent has been paid by the tenant after six months. Thus, he has made himself liable to eviction. The intention of law cannot be made to be interpreted that a defaulter tenant who has defaulted and yet he waits for the period of determination of rent until the determination is made. If such intention of the law is held to be correct then that would result into giving such meaning to the intention of the legislature, which was not there. The entire scheme of section 13 proceeds with the opening words that no decree of eviction shall be passed if the tenant is ready and willing to pay the rent. If the tenant defaults then he cannot take recourse of technalities of law and thus, issue No. 2 has been correctly decided. 11. I have given my thoughtful consideration to the rival submissions and have perused the record. 12. It would be relevant to read sub-sections (3), (4), (5) and (6) of section 13 of the Act for ready reference, the same are quoted herein below : "(3) In a suit for eviction on 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 thereto 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 any 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. (4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also 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 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-section (3). (5) If a 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. (6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court against him : Provided that a tenant shall not be entitled to any relief under this sub- section, if having obtained such benefit or benefit under section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months." 13. A reading of sub-section (3) of section 13 of the Act shows that legislative intention was that the court shall on the first date of hearing or to another date but such date shall not be more than three months after filing of the written statement and shall be before the framing of the issues. The scheme of sub-section (3) is so prominently placed that it makes imperative that rent is to be paid at the earliest and quickest possible point of time. Thus, if the tenant would have stressed for determination, the Court would not have denied. It cannot be said that the legislature was not conscious of the fact that a tenant cannot be given a chance to unduly delay the payment of rent to landlord. If the rent was not determined before six months, then the tenant should have insisted to the court to do so. If it was necessary to permit him to deposit rent, because liability to pay rent does not cease with the filing of the suit for eviction. 14. Sub-section (4) gives a scheme as to how the tenant has to deposit the rent and for what period. Sub-section (5) gives power to the court to struck out the defence and then comes sub-section (6), which says that if a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed. 15. Sub-section (6) is a very relevant section for deciding the controversy in between the parties. Sub-section (6) says that if a tenant makes a deposit as required by sub-section (4), no decree for eviction shall be passed. The operation of sub-section (4) is after determination under sub-section (3) and determination is the consequence of filing of a suit. If the interpretation given by the learned counsel for the petitioner is taken into account and given weightage, then this would mean that as and when a suit is filed by a landlord, the requirement of payment of rent becomes subservient to the findings of the court under sub-section (3) sub-section 13 of the Act for future. Meaning thereby if for some contingency the rent is not determined, then the tenant will have no liability to pay rent until determination is there. Meaning thereby if for some contingency the rent is not determined, then the tenant will have no liability to pay rent until determination is there. If this interpretation is given as has been sought to be given by the tenant, then that would mean that there is ceasation of the obligation of the tenant to pay rent after filing of a suit based on the ground of section 13(1)(a) of the Act. For the period when the court has not determined the rent, the tenant can remain without payment of rent. 16. In my opinion, the scheme as has been canvassed will defeat the very purpose of the Act. No holiday from payment of rent has been provided for. Section 13 clearly says that the defences against eviction are available for such tenants, who are ready and willing to pay rent. As and when there has been a suit filed on the ground set forth in clause (a) of sub-section (1) of section 13 there should be a determination because the determination under sub-section (3) is in relation to default committed and alleged in the instituted suit. Consequent thereto if six months time is permitted to pass, then naturally another default comes into being a default under section 13(1)(a) of the Act. Such a default can be made a ground for ejectment. 17. The question involved in this case lies in a very narrow compass. It has been claimed by the petitioner that he was a tenant in a suit filed by the landlord basing his claim on the ground made out in section 13(1)(a) of the Act for default. While the suit was pending and the petitioner was claiming that the trial court will determine the amount of rent to be deposited in the court under sub-section (3) of section 13 of the Act, he will deposit the rent. The plaintiff filed a yet another suit claiming that the tenant has not paid the amount of rent for six months. 18. It has been claimed by the petitioner that the entire rent has been deposited in the first suit. The amount as determined under sub-section (3) of section 13 of the Act was deposited and that default cannot be made the basis of second suit and also no cause of action arises to the plaintiff for filing a second suit. 18. It has been claimed by the petitioner that the entire rent has been deposited in the first suit. The amount as determined under sub-section (3) of section 13 of the Act was deposited and that default cannot be made the basis of second suit and also no cause of action arises to the plaintiff for filing a second suit. The procedure for determination of rent has been provided in sub-section (3) of section 13 of the Act, which provides that rent should be deposited as per the provisions of sub-section (4) of section 13 of the Act. Consequences of deposit or no deposit are provided in sub-section (5) and sub-section (6) says that no decree for eviction shall be passed under sub- section (1)(a) on the grounds mentioned in sub-section (1)(a) if a tenant makes a deposit. If a reading of these sub-sections is made, this speaks of the contingency that if the payment is made as required, no decree of eviction shall be passed on the grounds specified in clause (a) of sub-section (1). 19. On the strength of the aforesaid provision, the learned counsel for the petitioner submits that for the same period in both the suits the tenant would be required to pay amount of rent, which would be onerous to the tenant. Because if he does not pay the rent then he is liable to be declared as defaulter. Further case of the petitioner is that tenant cannot make any deposit any under section 19-A after institution of a suit. He can only deposit the rent when the court determines the same. In this regard he has referred to decisions rendered in 1997 WLN 372 and 2002 WLC SC 320. The arguments of the learned counsel for the petitioner are not in any valid to persuade the Court to hold that as and when a suit is filed until the court determines the rent, the tenant will have no liability to make payment. Such a proposition will defeat the very purpose of the Act. The tenant is provided protection under the Act if he is ready and willing to make the payment of rent. Such a proposition will defeat the very purpose of the Act. The tenant is provided protection under the Act if he is ready and willing to make the payment of rent. If he is permitted to wait for making the payment upto the determination of rent by the court then this would mean that the act or omission in such proceedings of the suit has the effect of putting the operation of the act in suspension. In the scheme of the Rent Ejectment Act, the tenant is required to make payment regularly. A tenant is always required to pay rent in accordance with the provisions of the Act. That is not in any way diluted by the fact of filing a suit on the ground of default. The fact that there was no determination of rent in due time by the court, would not have save the tenant from the liability to pay rent. If he has not paid the rent, then the landlord is well within his right to file a suit. A reference in this regard may be made to a Supreme Court decision reported in 2002 WLC SC 320. 20. The scheme of the Act does not speak of first or second suit. What it speaks is a suit and as and when a second suit is filed, it shall be dealt with as per the decisions of a Full Bench decision of the Andhra Pradesh High Court reported in Siddiah v. Kamath, AIR 1968 Andhra Pradesh 121 and by a Madras High Court in K. Perumal Chettiar v. V. Muthuswami, AIR 1962 Madras 447 . There is no bar of any suit in the nature of second suit in the Act. As and when a tenant fails to make payment of rent, cause of action can arise. The situations prescribed in section 13(3), (4), (5) and (6) relate to the cause of action on which the suit is based. Not for subsequent cause of action, may be during the pendency of the suit. Thus, the findings of the trial court on issue No. 2 are not vitiated on any count. 21. The argument of the learned counsel that as and when a suit is pending until the liability is determined, there is no liability of the tenant to pay rent, is repelled. Thus, the findings of the trial court on issue No. 2 are not vitiated on any count. 21. The argument of the learned counsel that as and when a suit is pending until the liability is determined, there is no liability of the tenant to pay rent, is repelled. The tenant if needs protection of the Act, he has to see that the rent is paid to the landlord regularly. If the payment is made regularly, then all the defences available in the Act can be availed by the tenant and not otherwise. If there is finding in favour of the tenant that no rent was due then its merits will be considered by the court. 22. It may be remembered that the tenant can take shelter under the technicalities of law, if the same are available to him, only if pays the rent regularly. In case his attempt is to defer the payment of rent, law may not always come to his rescue. Such an attempt is seen in the present revision petition. In this background also, no case for interference is made out. 23. It may also be noticed that earlier an application of the petitioner has been dismissed by the order dated 16.4.94. The question raised was about the cause of action. Such an order having become final, the same question cannot be raised again.In view of the aforesaid discussion, I do not find any force in this revision petition and the same is hereby dismissed. However, in the circumstances of the case, there will be no order as to costs. Petition dismissed. *******