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2005 DIGILAW 2992 (RAJ)

Mohan Lal Garg v. The Additional Civil Judge

2005-11-16

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is a defendants-tenants writ petition challenging the order passed by the trial Court dated 19.07.2003 under Section 13 Sub-section 5 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as “the Act of 1950”) which was upheld by the appellate Court by the impugned order dated 30.04.2004 and the appeal filed by the defendants-tenants petitioners was dismissed. 2. The case of the petitioners is that a premises consisting of shop and godown was on rent with the petitioners for Rs. 130/-per month. Non-petitioners, landlord filed a suit for eviction inter alia on the ground of default in payment of rent. Under the provisions of Sub-section (3) of Section 13 of the Act of 1950, the rent was determined by the trial Court and the defendants-petitioners were required to deposit the rent of Rs. 130/-plus Rs. 10/-by way of house tax charges. 3. During the pendency of the suit, one of the landlords viz. Bharat Bhushan who is Non-petitioner No. 3 in this writ petition, in whose share the shop came, sold the shop to the petitioner on 14.05.1990. Prior to 14.05.1990 on 16.04.1990 one of the landlords, the Plaintiff No. 2 Umrao Lal filed an application before the trial Court for apportionment of the rent of the shop as well as godown and in the said application it was submitted that the rent of the godown be determined as Rs. 67/-per month and that of the shop as Rs. 73/-per month. As has been stated above, before the order could be passed on the said application dated 16.04.1990 for apportionment of the rent, the shop in dispute was sold to the petitioners-defendants-tenants by the Plaintiff No. 1 Bharat Bhushan on 14.05.1990 and the godown remained with the Plaintiff No. 2 Umrao Lal. 4. The defendants failed to deposit the rent as required by Section 13(4) of the Act of 1950 for the month of July, 1995 and for the period from 01.07.1991 to 30.06.1995. As per Sub-section (4) of Section 13, the rent for the month is required to be deposited or paid by the 15th of the next succeeding month. 4. The defendants failed to deposit the rent as required by Section 13(4) of the Act of 1950 for the month of July, 1995 and for the period from 01.07.1991 to 30.06.1995. As per Sub-section (4) of Section 13, the rent for the month is required to be deposited or paid by the 15th of the next succeeding month. Since, this compliance was not made, an application under Sub-section (5) of Section 13 of the Act of 1950 was filed by the Plaintiff No. 2, Umrao Lal before the trial Court praying that in view of the failure on the part of the tenants to deposit the amount of rent as required by Sub-section (4) of Section 13 of the Act of 1950 the defence against eviction of the tenants be struck off . The learned trial Court came to the conclusion that the tenant had failed to comply with the provisions of Sub-section (4) of Section 13 of the Act of 1950 and consequently the order for striking out the defence was passed by the learned trial Court. 5. In reply to the aforesaid, the tenants-petitioners submitted that on account of the fact that on 16.04.1990 an application had been filed by the Plaintiff No. 2 himself praying for apportionment of the rent of godown as Rs. 67/-per month and of the shop as Rs. 73/-per month a fresh order determining the rent was required to be passed by the learned trial Court under Section 13(3) of the Act of 1950 which is a condition precedent. The defence against eviction of the tenants-petitioners could not have been struck out under Sub-Section (5) of Section 13 of the Act of 1950. He submits that since the petitioners-tenants had purchased the shop on 14.05.1990 it became all the more imperative that the rent should have been determined afresh under Sub-section (3) of Section 13 of the Act of 1950. 6. The trial Court as well as the learned lower appellate Court have in my opinion, rightly struck out the defence of the tenant. In the instant case, the rent had been determined under Sub-section (3) of Section 13 of the Act of 1950 by the trial Court on 27.02.1984 and in accordance therewith tenants-petitioners were required to deposit the rent @ Rs. 130/-per month as required by law. In the instant case, the rent had been determined under Sub-section (3) of Section 13 of the Act of 1950 by the trial Court on 27.02.1984 and in accordance therewith tenants-petitioners were required to deposit the rent @ Rs. 130/-per month as required by law. Though, it may be true that Plaintiff No. 2 had moved an application for apportionment of the rent of Rs. 67/-per month for the godown and Rs. 73/-per month for the shop, the apportionment cannot be equated as determination of rent, it would, therefore, be wrong on the part of the petitioners-tenants to contend that on the application dated 16.04.1990 the learned trial Court was required to predetermine the rent. It may also be stated here that the tenants-petitioners did not at any point of time raise any dispute that the rent of the godown should not be apportioned as Rs. 67/-and that of the shop as Rs. 73/-as claimed by the Plaintiff No. 2. On the contrary, the tenants-petitioners themselves moved an application, which has been filed as Annexure-R/2 by the plaintiff-non petitioners herein, stating therein that the rent @ Rs. 73/-per month for the shop be allowed to be withdrawn by the defendants-petitioners. The said application was filed on 03.07.1991. Thus, there was no doubt in the mind of the defendants-petitioners that apportionment of the rent, as claimed by the Plaintiff No. 2 vide his application dated 16.04.1990, was correct and they accepted the same by claiming to withdraw the rent of the shop @ Rs. 73/-per month as stated in the application filed by the Plaintiff No. 2. Though, of course, the order on the application dated 16.04.1990 came to be passed much later. In my opinion, there was no doubt in the mind of the petitioners that the rent for the godown which was liable to be paid by the tenants was Rs. 67/-as claimed by the Plaintiff No. 2. It was the duty of the defendants-tenants to deposit the said rent or if there was any doubt, an application could have been moved by the defendants-tenants seeking clarification before the learned trial Court to that effect. 67/-as claimed by the Plaintiff No. 2. It was the duty of the defendants-tenants to deposit the said rent or if there was any doubt, an application could have been moved by the defendants-tenants seeking clarification before the learned trial Court to that effect. In the facts and circumstances, since there was no doubt in the mind of the defendants-tenants-petitioners regarding the amount which was required to be deposited by them in pursuance of the order under Section 13(3) of the Act of 1950, the tenants were required to deposit the said amount with the trial Court in accordance with the provisions of Sub-section (4) of Section 13 of the Act of 1950 so as to save themselves from the consequences of non-compliance under Section 13(5) of the Act of 1950. The admitted position is that the defendants-tenants have failed to deposit the amount for the period as referred to above within the time allowed nor did the defendants-tenants moved any application for condonation of the delay with regard to the late deposit or an application disputing the quantum of rent @ Rs. 67/-per month for the godown as claimed by the Plaintiff No. 2 in his application dated 16.04.1990. 7. Consequently, I find no error so far as the orders passed by the Courts below dated 19.07.2003 and 30.04.2003 are concerned. 8. A plea has been raised that the plaintiffs had waived their right to striking out of defence as the plaintiffs had claimed rent and withdrawn the same. So far as aforesaid submission is concerned for the perusal of the two orders passed by the learned trial Court as well as by the appellate Court there is no such plea raised by the defendants-tenants before both the Courts below. In that view of the matter, such a plea, for the first time, cannot be allowed to be raised in a writ petition under Article 226 of the Constitution of India. 9. Consequently, the writ petition as well as the stay application stand dismissed.