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2005 DIGILAW 2763 (RAJ)

Batul v. Jabbar Khan

2005-10-21

PRAKASH TATIA

body2005
Judgment Prakash Tatia, J.-The present writ petition has been filed against the order dated 17.08.2004 whereby the first appellate Court set aside the order of the trial Court dated 01.08.2003 by which the trial Court struck of defence of the defendant on account of non-depositing the determined rent by the tenant which was required to be deposited after determination of rent under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short `the Act of 1950). 2. According to learned Counsel for the petitioner, the first appellate Court committed a serious error of law in allowing appeal and in fact, the order is contrary to law. According to learned Counsel for the petitioner, Section 13 (3), (4) and (5) of the Act of 1950 provides procedure for determination of rent, time for its deposit during trial of the suit and consequence for not depositing the rent by the tenant during pendency of suit and in case, a proper order is not passed at proper time, then the whole purpose for enacting Section 13(5) will frustrate. If the view expressed by the first appellate Court is accepted, then in all cases where tenancy is denied on whatever grounds and even if the plaintiff prima facie proves that the defendant is tenant, then the defence cannot be struck off of the tenant who failed to deposit the rent as determined under Section 13(3). It is also submitted that otherwise also, in view of the fact that the defendant is not admitting himself to be tenant of the suit property and he is not willing to deposit the rent, then he can non-suit the plaintiff on the ground that he is not tenant or when the plaintiff fails to prove that the defendant is tenant. 3. Learned Counsel for the Respondent No.1 vehemently submitted that the question of tenancy is required to be determined before passing the order under Section 13(3) for which learned Counsel for the Respondent No. 1 relied on the Judgment of this Court delivered in the case of Nane Shah vs. Ramkumar reported in RLW 1966 P. 446. 4. 3. Learned Counsel for the Respondent No.1 vehemently submitted that the question of tenancy is required to be determined before passing the order under Section 13(3) for which learned Counsel for the Respondent No. 1 relied on the Judgment of this Court delivered in the case of Nane Shah vs. Ramkumar reported in RLW 1966 P. 446. 4. After the decision of this Court in case of Nane Shah (Supra), the matter was considered by this Court as well as by Honble Apex Court in several Judgment s. In this case, the suit has been filed with the allegation that the defendant is tenant. It is for the plaintiff to prove that the defendant is tenant. The defendant denied the relationship of landlord and tenant and it is not even the case in the alternative that the defendant is tenant and wants to take benefit of taking some defence against the ground of default. The trial Court determined the arrears of rent and ordered the tenant to deposit rent. That order is final. By the order of the appellate Court, the consequence of not following the direction of the Court to deposit rent stand stayed till the question of relationship of landlord and tenant is finally determined after trial of the suit, which is impermissible in law. 5. In view of the above, once rent is determined, the provisions of Section 13(5) are required to be followed particularly in fact circumstance that the trial Court itself determined the rent under Section 13(3) and directed the Respondent No. 1 to deposit rent during the pendency of the suit. That order is final order and when that order is against the tenant, then he cannot say that part of the proceedings holding him liable to pay rent is valid and he is not liable to face the consequence of not following the order of the Court. 6. It will be relevant to point out here that this is procedure prescribed under the Act of 1950 to be followed during trial of the suit. 6. It will be relevant to point out here that this is procedure prescribed under the Act of 1950 to be followed during trial of the suit. In view of the complete scheme of Section 13, once rent is determined by the order of the Court, the rent is required to be deposited by the tenant/defendant during pendency of the suit within the period specified in Sections 13(4) and 13(5) and in case, he fails to deposit, his defence is to be struck off and after final order of rent determination, the defendant is under obligation to follow the rest of procedure provided under the Act for depositing the rent. 7. Accordingly, the writ petition is allowed, the order of the first appellate Court dated 17.08.2004 is set aside and the order dated 01.08.2003 is restored.