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2005 DIGILAW 2689 (RAJ)

Ashok Jain v. Hari Narain

2005-10-18

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a defendants second appeal in suit for ejectment against the Judgment and decree dated 05.02.2005 passed by the Additional District Judge No. 3, Kota dismissing the appeal filed by the defendant against the Judgment and decree passed by the Civil Judge (Jr. Div.) Kota (South) in Civil Suit No. 681/1992. The learned trial Court had decreed the suit of the plaintiff -respondent landlord for eviction on the ground of default in payment of rent as well as on the ground of subletting vide his Judgment and decree dated 211.2000. 2. The defendant-appellant had challenged the aforesaid Judgment and decree in appeal and the learned lower appellate Court vide his Judgment dated 28.05.2004 remanded the case to the trial Court after framing the additional issue to the effect whether the defendant had during the pendency of the suit, deposited each months rent in accordance with the directions of the Court or not. The learned trial Court afforded an opportunity to the parties to lead the evidence. The defendant-appellant lead the evidence on the referred issue which was framed by the appellate Court vide Judgment dated 28.05.2004 whereas the plaintiff did not lead any evidence in that behalf . 3. The learned trial Court after recording the evidence as directed by the learned lower appellate Court and hearing the case, gave a finding in favour of the plaintiff-respondent landlord vide its Judgment dated 02.09.2004 to the effect that defendant-tenant had failed to deposit the rent month by month in the bank account of the landlord in accordance with the directions given by the Court as required by the provisions contained in Section 13(3) & (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as “the Act of 1950”) as also the order dated 30.10.1991 passed by the learned trial Court while determining the rent. .4. After the aforesaid finding were received, the learned lower appellate Court decided the appeal vide impugned Judgment and decree dated 05.02.2005 while upholding the Judgment and decree passed by the trial Court on the ground of default and reversing the finding on the ground of subletting and consequently, a decree for ejectment was passed in favour of the plaintiff-respondent landlord and .against the defendant-tenant appellant on the ground of default in payment of rent. It is against the aforesaid Judgment and decree dated 05.02.2005 that the present second appeal has been preferred by the defendant-appellant under Section 100 CPC. 5. The submission of the learned Counsel for the defendant-appellant is that in the instant case the decree has been passed denying the benefit of the provisions of Sub-section (6) of Section 13 of the Act of 1950 primarily on the ground that it has been found that the tenant-appellant has failed to deposit the rent as required by the order passed by the trial Court under Section 13(3) of the Act of 1950, inasmuch as the rent for the months of June, 1993 was deposited after the prescribed period on 19.07.1993. The rent for the month of May, 1996 was deposited on 17.06.1996 which was also beyond the prescribed period. The rent for the month of February, 1997 was deposited on 17.03.1997 which again was beyond the prescribed period and the rent for the month of July, 1997 was deposited on 20.08.1997 which was also beyond the prescribed period i.e. the same had not been deposited by the 15th of the next succeeding month as required by law. It is contended by the learned Counsel appearing on behalf of the defendant-appellant that in accordance with the provisions contained in Sub-section (4) of Section 13 of the Act of 1950 the requirement of depositing the rent by the 15th of next succeeding month is not absolute and the said time may be extended by the Court and, therefore, in the instant case, the time may be extended by the Court, hence there would be no default on the part of the defendant-tenant and therefore the defendant-appellant would have been entitled to be given the benefit of Sub-section (6) of Section 13 of the Act of 1950. 6. 6. It is further contended that in the instant case when the defendant appellant failed to comply with the provisions of Sub-section (4) of Section 13 of the Act of 1950, inasmuch, as, the tenant-appellant failed to deposit the rent by the 15th of next succeeding month, it was incumbent upon the landlord to have made an application under Sub-section (5) of Section 13 of the Act of 1950 for striking out the defence against eviction and failure on the part of the landlord to have moved an application under Sub-section (5) of Section 13 of the Act of 1950 for striking out the defence against eviction and since the plaintiff failed to move the said application under Sub-section (5) for striking out the defence, the plaintiff cannot deprive the defendants-tenant of the benefit of Sub-section (6) of the Act. It was further contended by the learned Counsel for the defendants-appellant tenant that the plaintiff-appellants has waived his right for seeking eviction on account of having withdrawn the amount that was deposited including the rent for the four months mentioned above which was deposited after the due date. 7. Learned Counsel for the appellant in support of his contentions has relied upon the decisions in the case of Ram Murti Vs.Bhola Nath & Anr. reported, in AIR 1984 SC 1392 and Vatan Mal vs. Kailash Nath of the Honble Supreme Court reported, in 1989 (1) RCR 500. .8. Learned Counsel appearing on behalf of the plaintiff-respondent landlord on the other hand has supported the Judgment and decree passed by the learned Courts below and has pointed out that there is specific finding recorded by the Courts below firstly that the defendant had committed a default in the payment of rent as provided under Section 13 Sub-section (1) Clause (a) of the Act of 1950 while deciding the Issue No. 1 to the effect that rent had not been paid for a period more than six months by the tenant on the date of the filing of the suit. Learned lower appellate Court has in the impugned Judgment dated 05.02.2005 while deciding Issues No. 1 and 3 given a finding that the tenant-appellants failed to pay or tender the amount of rent for a period of more than six months as required by the law and hence committed default in the payment of rent. Learned lower appellate Court has in the impugned Judgment dated 05.02.2005 while deciding Issues No. 1 and 3 given a finding that the tenant-appellants failed to pay or tender the amount of rent for a period of more than six months as required by the law and hence committed default in the payment of rent. Learned lower appellant Court did no accept the plea of the defendant with regard to the sending of rent for a period of seven months by means of money order. It is hence contended that the findings on Issue No. 1 with regard to default in payment of rent are concurrent findings of fact. Learned Counsel for the plaintiff -respondent further submitted that it is an admitted position that rent for the months of June, 1993; May, 1996; February, 1997; and July, 1997 were not deposited as per the directions of the Court and also in accordance with the provisions contained in Sub-section (4) of Section 13 of the Act of 1950 as the rent for the aforesaid months was not deposited within fifteen days of the next succeeding month. It is, therefore, contended that tenant having failed to comply with the requirement of Sub-section (4) of Section 13 of the Act of 1950, the tenant in the suit for eviction based on the ground of default would not be entitled to the protection of Sub-section (6) of Section 13 of the Act of 1950. Learned Counsel has further submitted that in the instant case, the question of extending the time by the trial Court does not arise because the .tenant firstly was not prepared to accept the fact that there was a delay in the payment/deposit of the rent for the aforesaid months and moreover no application for condonation of delay or the extension of time was ever made by the tenant either before the trial Court or before the learned lower appellate Court and also no explanation whatsoever was furnished by the tenant for showing sufficient cause for extension of time in depositing the rent. A finding has been given by the learned lower appellate Court after considering the evidence of the defendants witness DW. 2, Ashok Kumar that it is not proved that defendants have failed to prove that amount which was deposited was withdrawn by the plaintiff-landlord. A finding has been given by the learned lower appellate Court after considering the evidence of the defendants witness DW. 2, Ashok Kumar that it is not proved that defendants have failed to prove that amount which was deposited was withdrawn by the plaintiff-landlord. Learned Counsel for the respondent has further submitted that in the facts and circumstances of the case and more particularly in view of the scheme of Section 13 of the Rajasthan Act of 1950 it is not incumbent for the landlord to move an application under Sub-section (5) praying for the striking out the defence against the eviction for making it a condition precedent to deny the tenant the right to the benefit of Sub-section (6) of Section 13. 9. I have considered the rival submissions and also gone through the Judgment s that were cited by the learned Counsel for the appellants. In the instant case the Courts below have given the findings with regard to the tenant having committed default in payment of rent as envisaged under Section 13 (1) (a) of the Act of 1950. It is also not disputed that the rent in accordance with Sub-section (4) of Section 13 of the Act of 1950 was not deposited by the tenant after the order determining the rent and directing the deposit of the rent was made by the trial Court as required by Sub-sections (3) and (4) of Section 13 of the Act of 1950. The rent for the months of June, 1993; May, 1996; February, 1997; and July, 1997 was not deposited as required by law. 10. Section 13 Sub-section (4), Sub-section (5) and Sub-section (6) are as under:-“(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 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-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 benefits under Section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of the accommodation for six months.” 11. A perusal of the aforesaid provisions of Sub-section (40) of Section 13 goes to show that the tenant shall deposit 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 is further required to continue to deposit month by month the monthly rent subsequent to the period upto which the determination is made by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the Court. Thus, it was incumbent for the tenant-appellants to deposit rent after the date of determination which in the instant case is 30.10.1991 and the said deposit was to be made in accordance with Sub-section (4). Admittedly, the rent for four months mentioned above was not deposited by the tenant within the stipulated period i.e. by the fifteenth of each succeeding month. 12. A perusal of Sub-section (6) shows that a tenant may escape the liability of a decree of eviction being passed on the ground of default in payment of rent as provided in Clause (a) of Sub-section (1) of Section 13 if the tenant makes the payment as required by Sub-section (4). In the instant case as per the findings recorded by the learned trial Court it is not disputed that the rents for the months of June, 1993; May, 1996; February, 1997; and July, 1997 were not deposited within the statutory period. No application for extension of time was also made by the tenant. In the instant case as per the findings recorded by the learned trial Court it is not disputed that the rents for the months of June, 1993; May, 1996; February, 1997; and July, 1997 were not deposited within the statutory period. No application for extension of time was also made by the tenant. In the absence of any application for extension of time the tenant could not be held entitled to deposit the rent within the extended period. In that view of the matter, the deposit of rent for the four months was not in accordance with Sub-section (4) of Section 13 of the Act of 1950 and consequently the tenant could not be held entitled to the benefit of Sub-section (6) of Section 13 of the Act of 1950. 13. Learned Counsel appearing for the defendant-appellants tenants has submitted that an application under Order 41 Rule 27 CPC has been filed before this Court in which sufficient cause for the delay in deposit of the rent has been explained and a newspaper cutting showing the obituary of the mother of the appellant be taken into evidence in second appeal and consequently the same may be taken into account and the period for depositing the rent be extended so as to allow the tenant-appellants the benefit of Sub-section (6) of Section 13 as the tenant-appellant was prevented on the aforesaid account from depositing the rent in time due to the death of his mother in May, 1996. So far as the aforesaid application is concerned, suffice it to say that tenant-appellants had an opportunity of moving an application for extension of time before the trial Court or before the learned lower appellate Court. The reasons which are sought to be mentioned here in the second appeal were known to the appellants and were within the knowledge of the appellants. It is not such a fact which has come to the knowledge of the appellants for the first time after the decision of the learned lower appellate Court so as to entitle the appellants to move the application under Order 41 Rule 27 CPC before this Court. The said application is not covered by any of the conditions mentioned in Order 41 Rule 27 CPC. The said application is not covered by any of the conditions mentioned in Order 41 Rule 27 CPC. Even otherwise, a perusal of the application goes to show that appellants have only tried to explain the delay in depositing the rent for the month of May, 1996. The delay with respect to the other three months has not at all been explained. In that view of the matter, even if , the period for the deposit of the rent for the month of May, 1996 was to be extended there is no ground or sufficient cause shown for extending the period for the deposit of rent for the months of June, 1993 February, 1997 and July, 1997. In that view of the matter, the application that has been filed before this Court in second appeal under Order 41 Rule, 27 CPC cannot benefit the appellants. The said application, therefore, stands rejected and the period for depositing the rent cannot be extended for the defaulting months. 14. Learned Counsel for the appellants has placed reliance upon the Judgment of the Honble Supreme Court in the case of Ram Murti vs. Bhola Nath & Anr. reported, in AIR 1984 SC 1392 . The aforesaid Judgment is a Judgment in the light of the provisions in the Delhi Rent Control Act, 1958. On the basis of the aforesaid Judgment , it was contended that as the landlord failed to move an application under Sub-section (5) of Section 13 of the Act of 1950 seeking striking out the defence against the eviction of the defendant tenant-appellants, the landlord cannot contend that defendant appellants failed to deposit the rent in terms of Sub-section (4) of Section 13 and consequently, deny the tenant-appellants the benefit of Sub-section (6) of Section 13. To my mind the scheme of the Rajasthan Act is firstly distinct from that of the Delhi Act. Apart from that the facts in the case of Ram Murthi vs. Bhola Nath & Anr as mentioned in Para 2 of the Judgment revealed that a suit was filed by the landlord for eviction on the ground of default in the payment of rent. The Additional Rent Controller by his order dated 14.02.1969 directed the appellant-tenant to deposit the rent at the rate of Rs. The Additional Rent Controller by his order dated 14.02.1969 directed the appellant-tenant to deposit the rent at the rate of Rs. 18/-per month w.e.f. 012.1965 and further to continue to deposit the rent at the same rate by the 15th of next succeeding month. It appears the tenant failed to comply with the aforesaid order of 14.02.1969 passed by the Additional Rent Controller. Consequently, the Additional Rent Controller vide his order dated 08.03.1976 directed eviction of the appellant on account of the fact the appellant committed default in not complying with the order dated 14.02.1969. While on the other hand an order was passed by the Additional Rent Controller dismissing the application filed by the landlord under Section 15 (7) of the Delhi Rent Control Act for striking out the defence of the appellant on the ground that he has committed default in complying with the order dated 14.02.1969. It is in the context of the scheme of Delhi Act as well as in the peculiar facts and circumstances of that case that their Lordships came to the conclusion and held in Para 16 as under: - “.....It must logically follow as a necessary corollary that if the defence is not to be struck out under Section 15 (7) it means that the tenant has still the defences open to him under the Act. In the premises, the conclusion is irresistible that he has the right to claim protection under Section 14(2). What is of essence of Section 14(2) and of Section 15(6) is whether there has been a substantial compliance with the order passed under Section 15(1). The words “as required by Section 15(1)” in these provisions must be construed in a reasonable manner. If the Rent Controller has the discretion under Section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extended the time for payment of future rent under Section 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control.....” 15. If the Rent Controller has the discretion under Section 15(7) not to strike out the defence of the tenant, he necessarily has the power to extended the time for payment of future rent under Section 15(1) where the failure of the tenant to make such payment or deposit was due to circumstances beyond his control.....” 15. As would be seen from the scheme of Rajasthan Act, it is clear that in a suit for eviction based on the ground of default, a determination of the rent is required to be made in terms of Section 13 Sub-section (3) and the order for depositing the said amount so determined is required to be passed under Sub-section (4) of Section 13 of the Act of 1950. Sub-section (4) of Section 13 of the Act of 1950 further requires the tenant to deposit the rent so determined and further to continue to deposit the rent month by month after the period of determination by the fifteenth of next succeeding month or within any further extended period not extending fifteen days. In case, the tenant complies with the requirement of Sub-section (4) of Section 13 in that event a tenant would be entitled to the benefit of Sub-section (6) of Section 13 of the Act of 1950. In the facts and circumstances of the present case, firstly, no application for extension was at all made nor was their any application moved by the landlord for the striking out of the defence and the contingency as was there in the case before the Honble Supreme Court in the case of Ram Murti (Supra), did not arise where there were contradictory orders passed by the Rent Controller one, holding that there is non-compliance of the order dated 14.02.1969 and passing an order for eviction and on the other hand rejecting the application of the landlord for striking out the defence of the tenant against eviction. Since in the instant case, no such application was ever filed by the tenant seeking extension of the time the plea which is sought to be raised does not arise in the facts and circumstances of the present case nor was an order/decree passed against the tenant for eviction immediately on a finding that there had been non-compliance of Section 13(4). The tenant led his evidence before the trial Court and both the Courts took into consideration the said evidence and gave a finding of default in payment of rent against the defendant-tenant. As such, it cannot be contended that under the scheme of the Rajasthan Act the landlord ought to have moved on application in the event of non-compliance of Sub-section (4) of Section 13 of the Act of 1950 for striking out of the defences against eviction and since the landlord failed to move such an application the tenant cannot be denied the benefit of Sub-section (6) of Section 13 of the Act of 1950. The submission of the learned Counsel for the appellant is rejected. 16. Another Judgment relied upon by the learned Counsel for the appellants is the case of Vatan Mal vs. Kailash Nath reported in 1989 (1) RCR 500. It is a case where the tenant had moved an application under Section 13-A of the Act of 1950. The said application was moved after the statutory period of thirty days provided under the Ordinance of 1975 from the commencement of the Ordinance for filing the application. In that case the suit for eviction was filed on the ground of default prior to the promulgation of the Ordinance of 1975. The period of thirty days as provided for filing the application under Section 13-A under the said Ordinance expired before the summons were served upon the defendant-tenant. The defendant-tenant in order to take the benefit of Section 13-A of the Act of 1950 moved an application for depositing the rent along with cost and interest after the statutory period of limitation of thirty days had expired. The said application was rejected and it is in these circumstances that the matter reached Honble Supreme Court in an appeal filed by the tenant. In the peculiar facts and circumstances of that case, their Lordships of the Honble Supreme Court passed the aforesaid Judgment setting aside the Judgment of the High Court holding the application under Section 13-A to be not maintainable. 17. In the peculiar facts and circumstances of that case, their Lordships of the Honble Supreme Court passed the aforesaid Judgment setting aside the Judgment of the High Court holding the application under Section 13-A to be not maintainable. 17. The aforesaid Judgment to my mind has no application to the facts and circumstances of the present case where the tenant has been held to have committed default in payment of rent after full trial and upon consideration of the evidence led by both the parties and further it has been found that the tenant failed to comply with the provisions of Sub-section (4) of Section 13 and did not deposit the rent as required by law. No application for the extension of time was filed either before the trial Court or before the lower appellate Court before the Judgment of remand dated 28.05.2004 when this fact was pointed out and an issue was framed by the lower appellate Court nor did the tenant appellant move any application before the trial Court seeking extension of the time when the trial Court recorded evidence and decided the case after remand by its Judgment dated 02.09.2004. Nor was any application for extension of time moved before the lower appellate Court when the appeal was decided by it by the impugned Judgment and decree dated 05.02.2005. In this view of the matter, in the absence of any factual foundation the submissions of the learned Counsel for the appellant-tenant that the time should have been extended and benefit of Sub-section (6) of Section 13 allowed to the tenant have no basis. Hence, the same are rejected. 18. It may also be added that the Honble Supreme Court in the case of Atma Ram vs. Shukuntala Rani reported in 2005 (7) SCC 211 after considering the earlier Judgment s of the Supreme Court while dealing with the case of default in the payment of rent has held in Para 19 as under: - “19. It will thus appear that this Court has consistently taken the view that in the Rent Control legislations if the tenant wishes to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with the conditions. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with the conditions. If he fails to do so, he cannot take advantage of the benefit conferred by such a provisions.” 19. In the light of the aforesaid, there is not doubt that since the tenant-appellant failed to comply with the provisions of requirement of Sub-section 4 of Section 13 of the Act of 1950, the learned Courts below rightly denied the tenant-appellant the benefit of Sub-section (6) of Section 13 of the Act of 1950. Consequently, the Judgment of the Courts below deserve to be upheld. 20. The plea of waiver that is sough to be raised has not been found proved on the basis of the evidence what was led by the defendants since the defendant-tenants have failed as has been found by the learned lower appellate Court after taking into consideration the evidence of the defendants witness DW . 2 Ashok Kumar, that defendants have failed to show and prove that the rent which was deposited by the tenants was in fact withdrawn by the plaintiff . In that view of the matter, this second appeal is dismissed summarily. Consequently, the appeal as well as the stay application stands dismissed. 21. In view of the dismissal of the second appeal filed by the tenant, learned Counsel appearing on behalf of the plaintiff -respondent does not press the cross objections No. 31/2005 filed by the plaintiff -respondent against the finding on Issue No. 2 relating to subletting. Consequently, the cross objections filed by the plaintiff-respondent are dismissed as not pressed.