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2006 DIGILAW 186 (RAJ)

Om Prakash v. District Judge, Bikaner

2006-01-17

DINESH MAHESHWARI

body2006
Honble MAHESHWARI, J.–The plaintiff-petitioners have submitted this writ petition being aggrieved of the order dated 16.9.2004 whereby the District Judge, Bikaner allowed Civil Appeal (Order) No. 52/2004 filed by the defendant-tenant and set aside the order dated 9.2.2004 passed by the Trial Court striking out defence against eviction because of delay in deposit of the amount of rent. (2). Brief facts relevant for determination of the questions involved in this writ petition are that the plaintiff-petitioners have filed a suit against the defendant-Respondent No. 2 for recovery of arrears of rent and for eviction, inter alia, on the ground of default. In accordance with the requirements of Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (`the Act hereinafter), provisional determination of rent was made on 17.5.1995 and the defendant was required to make payment of the determined amount and so also future monthly rent. According to the petitioners, the respondent-tenant deposited the rent for some time but after June 1998 committed several defaults in depositing the rent including that of the months of July 1998, January 1999, January 2003 and February 2003. (3). The plaintiffs moved an application on 5.4.2003 (Annexure 2) under Section 13(5) of the Act stating that monthly rent for several months was not deposited in time and the defendant-tenant having committed default, his defence against eviction was liable to be struck out. The defendant submitted by way of an application (Annexure 3) that the rent of the month of July 1998 was deposited in the bank account on 20.8.1998 and that of January 1999 on 16.2.1999; and the rent of the months of January and February 2003 was received by the plaintiff Om Prakash on the assurance of settlement out of Court and he assured to make deposit in the bank account; and when the same was not deposited by him, defendant-tenant had again deposited the rent in the month of March. It was submitted that there was a delay of five days and two days respectively for the rent of July 1998 and January 1999 and this mistake occurred for the plaintiff regularly entering into negotiations and the defendant being engaged in service work, it was condonable under Section 13(4) of the Act and that the rent of the months of January and February 2003 has been received in cash by the plaintiff Om Prakash. The plaintiff submitted a reply (Annexure 4) to the application contending that the delay in deposit of the rent stands admitted with the reply of the defendant; that the parties were not on talking terms and rent for the months of January and February 2003 was not given by the defendant to the plaintiff nor there were any negotiations for settlement. (4). The learned Trial Court proceeded to consider the matter by the order dated 9.2.2004 (Annexure 5) and observed that it was an admitted case of the defendant-tenant that he has made defaults in deposit of rent despite orders of the Court and found that rent of the month of July 1998 was deposited with five days delay and that of January 1999 with one days delay and the reasons assigned by the defendant were not convincing. The rent of the months of January 2003 and February 2003 was deposited on 31.3.2003 and, therefore, there was a delay of about 1 1/2 months for the rent of the month of January 2003 and of fifteen days for the rent of the month of February 2003. The reason for these defaults as stated by the defendant was not accepted because the defendant was regularly depositing the rent in the plaintiffs Bank Account No. 8299, and it was not acceptable that the plaintiff would receive the amount of the rent in the name of some settlement; and yet, if any such amount was paid, the defendant would have definitely obtained a receipt thereof and it was not expected that the defendant would provide some lacuna to the plaintiff which could be taken benefit of. The application submitted by the defendant was not found worth acceptance and on the other hand, the application filed by the plaintiff under Section 13(5) of the Act was accepted and defence against eviction was ordered to be struck out. (5). The defendant took an appeal against the order dated 9.2.2004 and the learned District Judge proceeded to decide the appeal by the impugned order dated 16.9.2004 (Annexure 6). The learned appellate Judge firstly considered the default for the months of July 1998 and January 1999 of five days and one day respectively; and with reference to the decisions of this Court, found that condonation of delay should be liberally allowed and the delay aforesaid was ordered to be condoned. The learned appellate Judge firstly considered the default for the months of July 1998 and January 1999 of five days and one day respectively; and with reference to the decisions of this Court, found that condonation of delay should be liberally allowed and the delay aforesaid was ordered to be condoned. Thereafter, the learned appellate Judge observed that the rent deposited on 31.3.2003 in relation to the months of January 2003 and February 2003 suffered from delay beyond 15 days and, therefore, it was held that the amount of rent for these months was not deposited in time. Thereafter, learned Judge proceeded to consider as to whether defence against eviction should have been struck out for this delay or not ? Learned Judge referred to several decisions cited by both the parties including that of the Honble Supreme Court in the case of Nasiruddin vs. Sitaram 2003 (1) WLN 707 (SC) = (RLW 2003(2) SC 315)cited by the plaintiff but thereafter, abruptly, observed that having gone through all the decisions and facts of the case, he was of opinion that it was not necessary to strike out the defence of the defendant. Litigation was pending since the year 1994 and the defendant was regularly depositing the rent and only for the months of January and February 2003 it was deposited on 31.3.2003 but it was a bona fide default and not committed intentionally or with any oblique motive and, therefore, with reference to the decision in Jagannath vs. Heerachand, 2001 DNJ 431 (Raj) observed that defence against eviction ought not to have been struck out. On these considerations, learned Judge proceeded to accept the appeal and to set aside the order dated 9.2.2004. (6). Assailing the appellate order dated 16.9.2004, learned Counsel for the plaintiff-petitioners vehemently contended that the entire approach of the learned District Judge has been from an altogether wrong angle and in view of the decision of the Honble Supreme Court in Nasiruddins case (supra), the other decisions relied upon by the learned Court below are no longer a good law and power of condonation of delay having not been conferred by the Statute could not have been exercised; and the default in payment of rent of the month of January 2003 being of about 45 days, question of condonation of delay or enlargement of time does not arise. Learned Counsel for the respondent attempted his best to support the impugned order with the submissions that for a valid order striking out defence against eviction, it is required to be held that the tenant is guilty of contumacious conduct and of committing wilful default. Bona fide default and that too for the circumstances as set out by the defendant ought not to be visited with the penalty of striking out defence altogether and rendering the tenant defenceless. Learned Counsel referred to a decision of Honble Supreme Court in M/s. Aero Traders Pvt. Ltd. vs. Ravinder Kumar, 2005 (1) WLC 200 (SC). (7). Having heard learned Counsel for the parties and having examined the record with reference to the law applicable, this Court is clearly of opinion that the impugned order dated 16.9.2004 cannot be sustained being squarely contrary to the statutory mandate and so also the dictum of the Honble Supreme Court. (8). A reference to the facts of the case makes it apparent that so far the rent for the months of January and February 2003 is concerned, the same has admittedly been deposited on 31.3.2003 and the learned Courts below have concurrently found this delay to be beyond the extendable period of 15 days that cannot be condoned. The learned appellate Judge has also recorded a specific finding that the rent for the months of January and February 2003 was not deposited within the time prescribed by the Statute. The learned appellate Judge has held :– v/khuLFk U;k;ky; us vius vk{ksfir vknsk esa ;g crk;k gS fd tuojh ,oa Qjojh] 2003 dk fdjk;k izfroknh us fn- 31-3-2003 dks tek djk;k gS vkSj bl izdkj fdjk;k vnk;xh esa tks nsjh gqbZ gS og 15 fnu ls vf/kd dh gS vr% bls esjs er esa ekQ ugha fd;k tk ldrk gS vkSj bl izdkj eSa ;g fu.khZr djrk gwa fd tuojh ,oa Qjojh] 2003 dk fdjk;k vf/kfu;e dh /kkjk 13¼4½ ds v/khu fu/kkZfjr vof/k esa izfroknh }kjk vnk ugha fd;k x;k FkkA (9). However, thereafter learned appellate Judge has proceeded to consider the question as to whether defence against eviction be struck out or not and referred to several decisions cited by both the parties, including the decision of the Honble Supreme Court in Nasiruddins case (supra), and observed that the deposit on 31.3.2003 was a bona fide default and defence against eviction ought not to have been struck out. The observations by the learned appellate Judge read as under :– ^^eSusa nksuksa i{kksa }kjk izLrqr fd;s x;s fu.kZ;ksa dks i<+k gS vkSj bl eqdnesa ds rF;ksa ij fopkj fd;k gSA esjs er esa tks fof/kd fLFkfr gS mlds vuqlkj dsoy ek= bl dkj.k fd tuojh ,oa Qjojh 2003 dk fdjk;k fn- 31-3-2003 dks tek djk;k x;k gS ;g vko;d ugha gS fd izfroknh dh izfrj{kk,a [kkfjt dh tkosA bl ekeys esa ;g Li"V :i ls izdV gksrk gS fd lu~ 1994 ls i{kdkjku ds e/; nkok py jgk gS vkSj izfroknh }kjk cjkcj fdjk;s dh vnk;xh dh tkrh jgh gS vkSj dsoy tuojh] Qjojh 2003 dk fdjk;k fn- 31-3-2003 dks tek djk;k x;k gS vkSj ,slk izdV ugha gksrk fd izfroknh us fdlh cnfu;fr ls ;k tkucqÖkdj fdjk;k vnk;xh esa nsjh dh gS cfYd Li"Vr% ,slk izdV gksrk gS fd izfroknh us usdfu;fr Hkwy gqbZ gS vr% esjs er esa izfroknh ds ;ksX; vf/koDrk }kjk m)`r fu.kZ;ksa dks n`f"Vxr j[krs gq, foks"k dj txUukFk cuke ghjkpUn] 2001 Mh,uts 431 ¼jkt-½ ds fu.kZ; dks /;ku esa j[krs gq, esjs er esa bl ekeys esa izfroknh dh izfrj{kk,a [kkfjt ugha dh tkuh pkfg;s FkhA** (10). The observations aforesaid remain squarely contrary to the requirements of Section 13(4) and Section 13(5) of the Act and so also the decision of the Honble Supreme Court in Nasiruddins case (supra). In a suit for eviction based on the ground of default, provisional determination under Section 13(3) of the Act having been made, the defendant-tenant remains under obligation to make payment of the arrears and interest as determined by the order under Section 13(3) of the Act and further to continue to pay or deposit monthly rent, month by month. Once the amount has been determined under Section 13(3) of the Act, all the requirements of Section 13(4) automatically follow; and for the tenant having failed in compliance of Section 13(4) of the Act, the provisions of Section 13(5) come into operation. (11). Once the amount has been determined under Section 13(3) of the Act, all the requirements of Section 13(4) automatically follow; and for the tenant having failed in compliance of Section 13(4) of the Act, the provisions of Section 13(5) come into operation. (11). The learned appellate Judge has rightly found in Para 8 of the impugned judgment that there was a clear-cut default in compliance of Section 13(4) of the Act and the delay being beyond the statutory period, could not be condoned. However, thereafter, the learned appellate Judge has proceeded to observe that this default was not intentional but was a bona fide default and, therefore, defence against eviction could not have been struck out. These observations remain squarely to Section 13(5) of the Act. When a finding was definitely returned that there was non- compliance of Section 13(4) of the Act, Sub-section (5) of Section 13 directly came into operation providing that 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. (12). This Court in the case of Heera Lal vs. Mandir Shri Thakurji Sangria & Anr., 2005 (3) RDD 327 (Raj.) = (RLW 2005(2) Raj. 1114) after considering the scheme of provisions of Section 13(3) to 13(6) of the Act and the effect of the decision of the Honble Supreme Court in Nasiruddins case has held,– In nutshell, it could be concluded that the stream of a line of view that Section 5 of the Limitation Act could be applied and delay could be condoned in default of the compliance of Section 13(4) of the Act beyond the statutory period fixed by the said provision itself which was built on the basis of B.P. Khemka (P) Ltd.s case and Gopal Dasss case (supra), has travelled a full circle culminating into the authoritative pronouncement by the Honble Apex Court in Nasiruddins case (supra). The controversy having met with its quietus in Nasiruddins case (supra), this Court is clearly of opinion that the principles as seen from the Division Bench decision of Firm Kripa Ram Ganeshilals case (supra), now hold the field, the ratio of all decisions to the contrary having been overruled in toto by Nasiruddins case. The controversy having met with its quietus in Nasiruddins case (supra), this Court is clearly of opinion that the principles as seen from the Division Bench decision of Firm Kripa Ram Ganeshilals case (supra), now hold the field, the ratio of all decisions to the contrary having been overruled in toto by Nasiruddins case. Therefore, it is evident that Court has no power to extend the period for deposit of the rent under Section 13 of the Act nor to condone the default in depositing the rent as there are no provisions in the Act granting such powers to the Court. (13). It may again be pointed out that the Honble Supreme Court, in nasiruddins case (supra), has concluded in no uncertain term,– ``41. In that view of the matter it must be held that in absence of such provisions in the present Act the Court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent. (14). Having examined the order dated 16.9.2004 passed by the learned appellate Judge, this Court finds that the said order remains self contradictory; squarely contrary to the decision of the Honble Supreme Court; and contrary to the statutory mandate. Such order cannot be countenanced or approved. It was required of the learned District Judge to have carefully examined the scheme of the statute and so also the ratio of the decision of the Honble Supreme Court and it was wholly unjustified to have relied on a decision of this Court rendered prior to Nasiruddins case, ratio wherein stands upturned by the Honble Supreme Court. (15). Reference to the case of M/s. Aero Traders Pvt. Ltd. (supra), dealing with the provisions of Section 15(7) of the Delhi Rent Control Act, as made by the learned Counsel for the respondent is not apposite to the facts of and law applicable to the present case. The Honble Supreme Court held with reference to its previous decisions like that in Jain Motor Co. The Honble Supreme Court held with reference to its previous decisions like that in Jain Motor Co. ( AIR 1996 SC 2951 ) that the said provision in Delhi Rent Control Act conferred discretionary power on the Rent Controller to strike out the defence of the tenant and such power should not be mechanically exercised without application of mind to the facts of the case and it was considered whether the tenant has been able to make out a case for exercise of discretion in his favour. However, as noticed supra, Nasiruddins case deals with the Rajasthan Act of 1950 and the Honble Apex Court has held in no uncertain terms that the statute does not provide for condonation of delay in payment of rent beyond the statutory period of fifteen days as provided under Section 13(4) of the Act of 1950. In fact, in Nasiruddins case itself, the Honble Apex Court has pointed out inapplicability of interpretations put on the provisions of Delhi Act to the Rajasthan Act, because under Section 15(7) of the Delhi Act,it is left at the discretion of the Rent Controller whether to strike out defence or not and under the Delhi Act, time could be extended for deposit by the Rent Controller. (vide Paras 28-29 at Page 712-713 of the report). (16). Moreover, the tenant in the present case cames out with a story of having made payment of the rent for the months of January and February 2003 in cash, and both the Courts below have disbelieved that story. Despite rejecting the reason assigned by the tenant, the learned appellate Judge has yet proceeded to assume existence of some bona fide reasons behind default in timely payment of rent for the months of January and February 2003 without even looking into the ratio of the decision in Nasiruddin (supra); and without specifying as to under which powers in law the aspect of intention was being considered; and without even indicating such so-called bona fide reason. Viewed from any angle, the impugned order cannot be sustained. (17). Viewed from any angle, the impugned order cannot be sustained. (17). The present one being a writ petition under Article 227 of the Constitution of India, this Court considers it appropriate that while setting aside the impugned order, instead of substituting any other order, the matter be remitted to the learned District Judge with a request to look into the record of the case, requirements of the statute and so also the ratio of the decision of the Honble Supreme Court and then to pass appropriate order in the light of the observations made hereinabove. (18). In view of the aforesaid, this writ petition is allowed to the extent indicated above, the impugned order dated 16.9.2004 is set aside and the matter stands remitted to the District Judge, Bikaner to restore Civil Appeal (Order) No. 52/2004 to its original number and to pass appropriate order after hearing the parties with reference to the observations made hereinabove. The parties shall appear before the District Judge, Bikaner on 2.2.2006 and the learned District Judge shall dispose of the appeal within thirty days thereafter. Costs of this writ petition shall follow the final decision in the suit.