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Rajasthan High Court · body

2005 DIGILAW 1328 (RAJ)

Mahendra Pratap Singh v. Bharat Metal Iron Works

2005-05-05

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-Heard learned Counsel for the parties. 2. The petitioner plaintiff-landlord is aggrieved against the two orders of the Courts below 4th April, 2003 and 20th September, 2003. The trial Court by order-dated 4th April, 2003 rejected the petitioner-plaintiff s application filed under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 by which the plaintiff-petitioner sought striking of defence of the defendant non-petitioner. The application of the petitioner was dismissed after holding that the amount which has been deposited by the non-petitioner defendant tenant under the provisions of Section 19-A of the Act of 1950 is valid deposit of rent and can be adjusted towards the payment under Section 13 (3) and (4) of the Act of 1950 and, therefore, the defence of the tenant cannot be stuck off . The appellate Court upheld the order of the trial Court vide order dated 20th September, 2003. 3. Brief facts of the case are that plaintiff filed the suit for eviction against the defendant-petitioner on various grounds including the ground of default. The suit was filed on 29th November, 1989. The notices were served upon the defendant-non-petitioner on 23rd March, 1990. The non-petitioner-defendant already submitted an application seeking permission to deposit rent in Court under Section 19-A of the Act of 1950 before the Civil Court on 20th September, 1989, i.e., before the date of filing of the suit by the plaintiff petitioner for eviction of the defendant tenant. The defendant submitted that defendant-tenant used to pay the rent in advance and when defendant-tenant offered the rent to the landlord for the period from 1st April, 1989 to 31st March, 1990, he avoided to accept the rent. Therefore, the defendant sent the rent by money order on 11th September, 1989, which was refused by the landlord, upon which, the defendant served a notice upon the plaintiff landlord seeking particulars of the bank account etc. so that the amount of the rent can be deposited in the bank account of the plaintiff-landlord. Since, the plaintiff-landlord did not furnish the information, therefore, the defendant-tenant deposited the due rent in Court in the proceedings initiated by him under Section 19-A of the Act of 1950. The application filed under Section 19 remained pending even after plaintiff s filing of eviction suit against the defendant-tenant, therefore, the tenant went on depositing the rent for subsequent months also. The application filed under Section 19 remained pending even after plaintiff s filing of eviction suit against the defendant-tenant, therefore, the tenant went on depositing the rent for subsequent months also. The last deposit of rent in that proceedings were the amount of the rent for the period from April 1998 to March 1999 vide bank challan dated 24th March, 1998 in the proceedings under Section 19-A of the Act of 1950. This shows that the tenant deposited the rent in advance. Dispute is about the validity of that rent deposit and question is whether, tenant who deposited the rent under Section 19-A of the Act of 1950 during the pendency of eviction suit against him can take benefit of above rent deposit to discharge his liability of payment of rent under Sections 13(4) and 13(5) of the Act of 1950 in a suit for eviction filed under the same Act of 1950 in spite of fact that there is specific provision under Section 13 of the Act of 1950 for depositing the rent by the tenant in the suit for eviction itself . 4. In present suit for eviction, the trial Court determined the arrears of rent under Section 13 (3) of the Act of 1950 on 31st July, 1996. The trial Court in its order dated 31st July, 1996 held that the plaintiff filed the suit for recovery of the rent for a period from 1st April, 1989 and total rent due as on 30th June, 1996 is Rs. 10,805/-whereas the defendant-non petitioner already deposited Rs. 12,000/-in 19-A proceeding. Therefore, there is advance deposit of rent. The trial Court ordered that the amount deposited in advance will be adjusted in future rent. However, the trial Court ordered that the plaintiff shall pay the rent month by month obviously as required under Section 13(4) of the Act of 1950. 5. It appears that despite the order dated 31st July 1996, the defendant-non-petitioner went on depositing the rent of the premises in the proceedings under Section 19-A of the Act of 1950 and last receipt is as mentioned is dated 24th March, 1998 by which the advance rent upto March, 1999 was deposited under the proceedings under Section 19-A of the Act of 1950. 6. 6. The plaintiff submitted an application under Section 13(5) of the Act of 1950 on 29th Oct, 1998 before the trial Court stating therein that the defendant did not deposit the determined rent as well as subsequent monthly rent in this suit in pursuance of the order dated 31st July, 1996, therefore, the defendants defence may be struck off . The defendant submitted reply stating therein that he has already deposited the rent in advance (in Section 19-A) and, therefore, he has not committed any default, therefore, the application may be dismissed. 7.The trial Court after hearing both the parties and after considering the Judgment delivered in the case of Swaran Devi vs. Kailash Chandra Jain, reported in 1996 (3) WLC 75 (Raj) observed that the amount deposited under Section 19-A is valid payment of rent by the tenant and rejected the petitioner landlords application for striking off the defence of the non-petitioner tenant. The first appellate Court also took the same view and dismissed the appeal of the landlord petitioner. 8. Learned Counsel for the petitioner-landlord-plaintiff vehemently submitted that Section 13 of the Act of 1950 provides complete procedure for determination of the rent and payment of the rent after determination in a case where suit has been filed on the ground of default under Section 13(1)(a). According to learned Counsel for the petitioner, the rent is required to be deposited in the suit itself wherein the rent has been determined under Section 13 (3) and not in any other proceedings. It is also submitted that rent under Section 19-A of the Act of 1950 can be deposited only when there is no suit for eviction against the tenant is pending. It is also submitted that procedure provided under Section 19-A, provides that each application shall bear a Court fees stamp of Rs.2/-which clearly means that in case, tenant wants to deposit the rent, the same may be deposited in Court each time after following the procedure as provided under Sub-Section (6) of Section 19-A. Here in this case, the defendant though submitted application for depositing the rent under Section 19-A, but when he came to know that suit for eviction has already been filed, he could not have deposited the rent in any proceedings except under Section 13(3) of the Act of 1950. 9. 9. Learned Counsel for the petitioner also submitted that the Honble Supreme Court in the case delivered in Kuldeep Singh vs. Ganpat Lal, reported in AIR 1996 SC 729 held that the tenant can deposit the rent in Court only if the conditions laid down in the Section 19-A(3)(c) are satisfied and those conditions are not satisfied, the tenant cannot avail the protection of Sub-Section (4) of Section 19-A. According to learned Counsel for the petitioner since Section 19-A has been enacted to provide the facility to tenant to deposit the rent in case, the landlord refuses to accept the rent and, therefore, beyond that, no benefit can be given to the tenant. And this he can do only when no suit for his eviction is pending because after filing of suit for eviction by the landlord when and where rent can be deposited is provided in Section 13 of the Act of 1950. Procedure provided in Section 13 of the Act of 1950 excludes application of Section 19-A of the Act of 1950. According to learned Counsel for the petitioner, this Court in the Judgment delivered in the case of Smt. Swaran Devi vs. Kailash Chandra Jain & Ors., reported in 1996 (3) WLC (Raj) 75, held that after service of summons on the defendant (tenant), he (tenant)should deposit rent in the suit itself and not under Section 19-A of the Act of 1950. In view of the above Judgment , the possibility of deposits of rent in any other proceedings stands completely denied by specific provision of law. 10. Learned Counsel for the petitioner also assailed the conduct of the non-petitioner defendant -tenant and for that purpose, learned Counsel for the petitioner pointed out that the application for deposit of the rent under Section 19-A was submitted on 29th Sept., 1989 and the case was registered only on 28th Nov., 1990 and, thereafter, the proceedings were kept pending by the defendant-tenant for a long period and he went on depositing the rent despite the fact that notices for eviction suit have already been served upon the defendant-tenant. 11. To counter, Learned Counsel for the non-petitioner defendant tenant submitted that the plaintiff submitted application with only allegation that the determined rent has not been deposited by the tenant and further he submitted that the defendant-tenant did not deposit the monthly rent. 11. To counter, Learned Counsel for the non-petitioner defendant tenant submitted that the plaintiff submitted application with only allegation that the determined rent has not been deposited by the tenant and further he submitted that the defendant-tenant did not deposit the monthly rent. It is submitted that the application was submitted on 29th Oct., 1998 and the trial Court in its order dated 31st July, 1996 determining the rent clearly observed that the tenant has already deposited the rent in advance beyond the period for which the rent was determined by the trial Court. Therefore, the very foundation of the allegation of default in payment of rent and for striking of the defence of the tenant-non-petitioner is missing. It is also submitted by learned Counsel for the non-petitioner defendant-tenant that this Court in the case delivered in Achal Chand vs. M/s. Chunnilal Zorawarmal, reported in 1996 DNJ (Raj.) 621, held that the rent under Section 19-A can be deposited even when the suit for eviction is pending or the appeal against the Judgment and decree of eviction suit is pending before the appellate Court. Therefore, if the defendant-tenant deposited the rent under Section 19-A, then it cannot be said that there was any intention of the defendant-tenant to not to pay the rent or not to comply with the order of the trial Court determining the rent. Learned Counsel for the respondent further submitted that the defendant submitted application for deposit of the rent before the date of filing of the suit and deposited the rent in the proceedings under Section 19-A and the rent was deposited in the Court and in view of the Judgment of this Court delivered in the case of Hindustan Petroleum Corporation Ltd. vs. Shri Durga Prasad Sharma, reported in 2001 DNJ (Raj.) 142, the deposited rent may be treated as is valid payment of the rent under Section 13(3) and (4) of the Act of 1950. Learned Counsel for the respondent further relied upon the Judgment of the Honble Supreme Court delivered in the case of Kailash Chandra & Anr. Learned Counsel for the respondent further relied upon the Judgment of the Honble Supreme Court delivered in the case of Kailash Chandra & Anr. vs. Mukundi Lal & Ors., reported in 2002 (2) SCC 678 , in which the Honble Supreme Court held that it is not expected from the tenant to deposit the rent twice and while dealing with the UP Urban Building (Regulation of Letting, Rent and Eviction)Act, 1972 on finding that the amount has been deposited by the tenant in a proceeding under the provisions of the UP Act is a valid payment of the rent. Learned Counsel for the respondents also relied upon the Judgment s delivered in the case of M/s. Sunmoon Stationers vs. Banshi Lal, reported in 1993 (1) WLN 231 and M/s. Laxim Tara Calenders vs.Smt. Shanti Devi Borana, reported in 1999 WLC (UC) 175 and submits that in case, there was intention of the tenant to deposit the rent and in fact deposited the rent in Court then the defence cannot be strike off . 12. I considered the submissions of learned Counsel for the parties and perused the orders as well as the Judgment s relied upon by both the parties. 13. It is clear from Section 13 of the Act of 1950 that Section 13(1) provides all the grounds on the basis of which the suit for eviction can be filed against the tenants. Section 13(1)(a) provides that in case tenant has neither paid nor tendered the amount of rent due from him for six months, he shall be liable for eviction. However, Sub-section (3) of Section 13 gives one opportunity to tenant to deposit all the arrears of rent alongwith interest in case, tenants was to avoid his eviction order on the ground of default in payment of rent. For that purpose tenant is required to pay or deposit the determined arrears of rent and tenant is required to deposit the further rent month by month in Court during the pendency of suit. The Sub-section (4) of Section 13 gives the period within which the tenant should deposit the determined and further rent. If tenant fails in depositing the arrears of rent or rent during pendency of suit are within the stipulated period, his defence is liable to be struck off under Sub-section (5) of Section 13. The Sub-section (4) of Section 13 gives the period within which the tenant should deposit the determined and further rent. If tenant fails in depositing the arrears of rent or rent during pendency of suit are within the stipulated period, his defence is liable to be struck off under Sub-section (5) of Section 13. The Section 13, therefore, provides complete procedure in relation to the payment of rent by the tenant in a suit for eviction under Section 13 of the Act of 1950. 14.The Section 19-A provides for payment of rent by the tenant to the landlord and deposit of the rent in Court in case the landlord refuses to accept the rent. The Sub-section (4) of Section 19-A is relevant, which is as under:- “(4) For the purpose of Clause (a) of Sub-sec.(1) of Sec.13; a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid remitted or deposited the amount of rent by any of the methods specified in Sub-section (3)”. 15. The Sub-section (4) of Section 19-A clearly provides that in case the rent is paid by the tenant by following the procedure as provided in Sub-section 3 of Section 19-A then the tenant shall be deemed to have paid or tendered the amount of any rent due from him for the purpose of Clause (a) of Sub-section (1) of Section 13. It will be significant to note here that in Section 19-A it has not been provided that in case the rent is deposited by the tenant after following the procedure under Sub-section (3) of Section 19-A during the pendency of eviction suit against him on the ground of default, it shall be a valid tender or deposit of rent under Section 13(3) and (4) of the Act of 1950 whereas it specifically provides the payment of rent as a valid payment and tender of the rent for the purpose of Clause (a) of Sub-section (1) of Section 13 only. In the Judgment relied upon by learned Counsel for the respondent delivered in the case of Achal Chand (Supra), the controversy was with respect to the jurisdiction of the Court under Section 19-A only. In the Judgment relied upon by learned Counsel for the respondent delivered in the case of Achal Chand (Supra), the controversy was with respect to the jurisdiction of the Court under Section 19-A only. This Court in the above case held that looking to the nature of the proceedings under Section 19-A, The Court is required to be satisfied that rent was tendered and refused or a money order was sent and came back with an endorsement that it was refused or the landlord is not found on the address and he has not accepted the rent then the Court under Section 19-A required to allow the deposit of the rent by the tenant. This Court in the above Judgment categorically held that whether the payment would amount to compliance with the provisions of Sub-section (4) of Section 13 of the Act or not is to be seen by the appellate Court (or by the trial Court) before whom the matter of eviction is pending. Therefore, the Judgment relied upon by learned Counsel for the respondent delivered in the case of Achal Chand (Supra) is of no help to the respondents because here in this case, the tenant was allowed by the Court and he deposited the rent under Section 19-A. Controversy in this case is whether that deposit is valid or not and in the case of Achal Chand (Supra) also held that such question can be decided by the Court seized with the eviction proceedings against the rent. 16. Learned Counsel for the respondents contention that in view of the Judgment of the Honble Supreme Court delivered in the case of Kalish Chandra & Ors. (Supra) it cannot be said that the tenant has committed any default. 16. Learned Counsel for the respondents contention that in view of the Judgment of the Honble Supreme Court delivered in the case of Kalish Chandra & Ors. (Supra) it cannot be said that the tenant has committed any default. Since, the tenant has deposited the rent in Court in proceeding which was entertained by the Court, therefore, that deposit of rent cannot be said to be illegal in any manner and since the tenant has deposited the rent in advance throughout the period in question and the both the Courts had jurisdiction to accept the rent, therefore, the defence of the tenant cannot be strike off and the trial Court as well as the appellant Court rightly held that the law laid down by this Court in the case delivered in Kailash Chandra Jain (Supra) nowhere lays down that the payment of the rent under Section 19-A cannot be treated to be a valid payment. 17. So far as striking of defence is concerned, this is a harsh possible order because it denies the opportunities to contest the issue of default itself . In this case, by order dated 31st July, 1996, the trial Court allowed the contention of the defendant-tenant of advance deposit of the rent under Section 19-A and, thereafter, further observed that the advance rent deposited more than the arrears claimed by the landlord shall be adjusted in future rent. This fact cannot be ignored. Therefore, so far as payment of rent before 31st July, 1996 is concerned, under Section 19-A it cannot be questioned by moving application under Section 13(5) of the Act of 1950 because of simple reason that the order dated 13th July, 1996 is the order between the parties and the petitioner landlord did not challenge the order of that trial Court giving adjustment of rent deposited under Section 19-A by the tenant upto the period. This Court in many cases took view that the rent deposited in Section 19-A is required to be given credit while determining the rent. Further, defence of tenant can be struck off only when tenant fails in deposit the rent after its determination. Here in this case, the Court itself did not only allow adjustment of rent, which he had deposited under Section 19-A but also allowed adjustment of excess payment against future rent. Further, defence of tenant can be struck off only when tenant fails in deposit the rent after its determination. Here in this case, the Court itself did not only allow adjustment of rent, which he had deposited under Section 19-A but also allowed adjustment of excess payment against future rent. Meaning thereby, the trial Court after hearing both the parties, landlord and tenant accepted the rent deposited by the tenant in the proceedings under Section 19-A for the period not of the period, prior to filing of the suit by the landlord for eviction of his tenant, but also permitted excess payment of rent under Section 19-A to be adjusted against the future rent, the rent, which may become due during the pendency of the eviction suit. Therefore, in the fact of the case if rent deposited in Section 19-A are not accepted as valid payment under Section 13(4) and (5) of the Act of 1950 it will result in contradiction because part of the payment of rent in proceedings under Section 19-A will remain valid payment and part of it will be invalid. 18. So far as allegation of subsequent defaults by the tenant during the pendency of the suit are concerned, it will be worthwhile to mention here that none of the Judgment s relied upon by learned Counsel for the petitioner held that the rent deposited by the tenant under Section 19-A of the Act of 1950 is in violation to any specific provision of law. This Court in the Judgment s only held that the tenant should deposit the rent in the Court where the eviction proceeding is pending and not under Section 19-A. That shows only desirability and not a mandatory requirement of law. This Court is also of the opinion that the rent should be deposited after determination of the rent in the Court where the rent has been determined, but at the same time, the provisions of Section 13(5) are required to be construed strictly and only when payment of rent by the tenant after the determination of the rent under Section 13(3) is found to be contrary to law or illegal then only his defence can be struck off . There may be chances of mistakes in depositing the rent in Court, like the tenant may inadvertently give a wrong number of case while depositing the rent and it can be gathered from the circumstances that in fact, the tenant intend to deposit the rent to discharge his liability under Section 13(3), (4) and (5) of the Act of 1950 then in such situation, the payment of rent can be treated to be valid discharge of tenants liability under Section 13(3), (4) and (5) of the Act of 1950. The deposit of rent by the tenant may it be under Section 13(4) or in 19-A, both are under the provisions of the same Rent Act. Therefore, if the tenant has opted for a wrong procedure only then that can be treated as procedural mistake only and when Sub-section (1) of Section 13, the penal provision says that “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” then even if it is held that the tenant should deposit the rent in the same suit in which rent has been determined even then on depositing the rent in Section 19-A cannot be held to be in violation of any provision of law making such deposit of rent as illegal. By depositing rent in Court under Section 19-A the tenant not only has shown his readyness and willingness in payment of the rent, but he in fact, paid/deposited the rent. In this case, when the rent has already been deposited by the tenant in advance and there is no allegation that the tenant has not deposited the rent within the period allowable under Section 13(3) and (4) of the Act of 1950,therefore, the trial Court was right in not striking of the defence of the tenant and has not committed any illegality in holding that the rent deposited though not under Section 13(3) and (4) of the Act of 1950, but deposited under Section 19-A to be a payment of rent to the landlord. 19. 19. It is also submitted by learned Counsel for the petitioner, without admitting, that the amount paid by the tenant upto the period of determination of rent can be accepted to be valid payment even then the rent, which has been deposited by the tenant after 1997 cannot be said to be a valid payment. 20. I do not find any force in the submission of learned Counsel for the petitioner because of the reason that the proceedings under Section 19-A initiated by the non-petitioner-tenant by moving application before filing of the suit for eviction against him and he deposited the rent in that proceedings, which was continued in the Court and the amount upto 1999 has been deposited by the tenant on 24th March, 1998 before the decision of the proceedings under Section 19-A Therefore, that amount also only a amount deposited in a proceeding initiated by the tenant before filing of the suit for eviction and, therefore, can be treated to be a valid payment against the rent determined by the Court. 21. In view of the above conduct of the petitioner of taking time in serving the landlord in the proceedings under Section 19-A etc are not of much relevancy. 22. In view of the above, I do not find any illegality in the order passed by the trial Court. Hence, the writ petition of the petitioner is dismissed.