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2008 DIGILAW 323 (CAL)

K. Jayraj v. Moses Pandian

2008-03-24

PRANAB KUMAR CHATTOPADHYAY

body2008
Judgment :- (1.) THIS appeal has been preferred at the instance of the plaintiff assailing the judgment and order dated 9th March, 2007 passed by the learned District Judge, Andaman and Nicobar Islands, Port Blair in First miscellaneous Appeal No.12 of 2004 (Dr. Moses Pandian v. Shri K. Jayraj)allowing the appeal filed by the defendant/tenant against the order dated 30th July, 2004 passed by the learned Civil Judge, Senior Division, Port blair in other Suit No. 48 of 1997. The plaintiff herein filed the suit before the learned Civil Judge, Senior Division at Port Blair for eviction of the defendant/tenant under Regulation 13 of the Andaman and Nicobar Islands rent Control Regulation, 1964. In connection with the said suit an application under Regulation 14 (1) and (2) of the Andaman and Nicobar islands Rent Control Regulation, 1964 was filed by the plaintiff. The said petition was allowed by the learned Civil Judge, Senior Division at Port Blair by order dated 17th February, 1999 whereby and whereunder the defendant/tenant was directed to deposit the arrears of rent from the month of May, 1995 and was also directed to pay/deposit the current rent of Rs. 500/- month by month by the 15th of each succeeding month till the final disposal of the suit. The relevant portion of the said order dated 17th February, 1999 passed by the learned Trial Court is quoted hereunder:- "I have understood that the tenants has no objection to pay of the arrears rent on and from May 1995 @ Rs. 500/-per month. Defendant/tenant be directed to pay the arrears rent from May 1995 and onwards to the landlord or deposit with the Court within one month of the date of the Order. Defendant tenant to continue to pay or deposit the rent month by month, by 15th of each succeeding month @ Rs. 500/- per month till the final disposal of the suit." (2.) THE plaintiff thereafter filed another application under Regulation 14 (7) of the Andaman and Nicobar Islands Rent Control Regulation, 1964 alleging that the defendant/tenant has failed to deposit the arrears of rent as well as the current rent in compliance with the aforesaid order dated 17th February, 1999 passed by the learned Trial Court and therefore prayed for striking out the defence against the eviction of the defendant/tenant on the aforesaid ground of failure to deposit the rent. The learned Trial court by the order dated 30th July, 2004 allowed the aforesaid petition filed by the plaintiff under Regulation 14 (7) of the Andaman and Nicobar islands Rent Control Regulation, 1964 on contest and defence of the defendant/tenant was struck out. (3.) CHALLENGING the said order of the learned Trial Court an appeal was preferred before the learned District Judge. The learned District Judge ultimately allowed the said appeal preferred by the defendant/tenant and set aside the order passed by the learned Civil Judge, Senior Division at port Blair on 30th July, 2004. (4.) ASSAILING the aforesaid judgment and order passed by the learned district Judge the instant appeal has been preferred before this Court. At the time of admission of the appeal following substantial questions of law have been formulated for the purpose of determination of the appeal:- "(a) Whether the learned Court of appeal below committed substantial error of law in setting aside the Order 73 dated 30.7.2004 by totally overlooking the fact the tenant/respondent did not apply for condonation of delay nor did he file any application for extension of time for deposit of the amount pursuant to the order dated 17th february, 1999. (b) Whether the learned Court of appeal below committed substantial error of law in setting aside the order striking defence of the respondents against delivery of the possession notwithstanding the fact he failed to comply the mandatory provision of Section 14 (1) and (2) of the Rent Control Regulation, 1964. (c) Whether the learned Court of appeal below committed substantial error of law in condoning the lapses on the part of the tenant in complying with the mandatory provision of Section 14 (1)and 14 (2) of the Rent Control Regulation, 1964 in absence of any prayer to that effect was made by the tenant." (5.) SCRUTINIZING the materials-on-record and going through the judgments of the learned Courts below, it appears that the defendant/ tenant defaulted in making payment of the monthly rent in compliance with the order dated 17.2.1999 passed by the learned Trial Court and therefore the learned Trial Court allowed the petition filed under Regulation 14 (7) of the Andaman and Nicobar Islands Rent Control Regulation,1964 and passed an order striking out the defence of the defendant/tenant. (6.) IT has been argued on behalf of the defendant/tenant that the orders passed by the learned Trial Court on 17th February, 1999 were substantially complied with since the said defendant/tenant had deposited the arrears of rent as per order of the learned Trial Court dated 17th february, 1999 on 8th March, 1999 by cheque bearing No. A/306. It is not in dispute that a sum of Rs. 23,500/-was deposited by the defendant/tenant and the same was withdrawn by the power of attorney holder of the plaintiff and subsequently the defendant/tenant also deposited a further sum of Rs. 21,500/- on 25th October, 2002 in terms of the Order No. 40 dated 17th September, 2002 passed by the learned Trial Court which was however not withdrawn by the plaintiff. It has been argued on behalf of the defendant/tenant that in view of the specific Order No. 40 dated 17th September, 2002 the earlier Order No. 12 dated 17th February, 1999 was virtually superseded by the learned Trial Court. (7.) FROM the records it also appears that a petition was filed on behalf of the defendant/tenant before the learned Trial Court praying for depositing the rent from April, 1999 to October, 2002. The said petition was considered and allowed by the learned Trial Court by the Order No.41 dated 24th october, 2004 whereby and whereunder the defendant/tenant was permitted to deposit the rent for the aforesaid period at his own risk. The defendant/tenant although initially was not very much diligent to comply with the specific direction passed earlier by the learned Trial Court regarding payment of the arrears of rent and the current rent, but subsequently the tenant became very much serious and diligent in depositing the current rent month by month through challans pursuant to the permission granted by the learned Trial Court by Order No. 41 dated 24th October, 2004, which cannot be altogether ignored by the Court of law. The learned District Judge has rightly observed that the provision of the rent legislation is normally intended for the benefit of the tenant and therefore a lenient view should be taken in respect of the tenant especially when the tenant has established his diligent effort regarding payment of the arrears of rent and current rent. The learned District Judge has rightly observed that the provision of the rent legislation is normally intended for the benefit of the tenant and therefore a lenient view should be taken in respect of the tenant especially when the tenant has established his diligent effort regarding payment of the arrears of rent and current rent. (8.) IN the present case, learned Trial Court admittedly granted permission to the tenant to deposit the rent at his own risk by the Order no. 41 dated 24th October, 2002 and the tenant notwithstanding the involved risk deposited the amount regularly towards the current rent month by month, which shows the eagerness and bona fide intention of the tenant to comply with the specific direction passed by the learned Trial Court. (9.) THE learned Counsel of the defendant/tenant referred to and relied on a decision of the Supreme Court in the case of Ashwini Kumar Bahl v. Sardar Harbhajan Singh Chowla, reported in 2003 (10) Supreme Court cases 293, wherein the Honble Supreme Court specifically held that defence should not be impaired unless there is no other alternative and the case should be decided on merits and not on technical grounds. (10) FOLLOWING the aforesaid decision of the Honble Supreme Court, the learned District Judge has taken a correct approach in the matter and allowed the appeal after setting aside the order passed by the learned trial Court on 30th July, 2004. (11.) IN my considered opinion, the learned First Appellate Court did not commit any error in granting the relief to the defendant/tenant by taking note of the subsequent deposits of the rent by the defendant/tenant in compliance with the specific order passed subsequently by the learned trial Court bearing Order No. 41 dated 24th October, 2002. Although it has been argued on behalf of the appellant that the tenant is guilty for non-compliance of the earlier specific order passed by the learned Trial court, but one cannot ignore the fact that the learned Trial Court allowed the subsequent petition filed on behalf of the tenant and granted permission to deposit the rent at his own risk and inspite of the said risk the tenant regularly deposited the rent. (12.) IN the aforesaid circumstances it cannot be said that there is no other alternative but to strike out the defence. (12.) IN the aforesaid circumstances it cannot be said that there is no other alternative but to strike out the defence. The Regulation 14 (7) made it clear that Court may order the defence against the eviction to be struck out if a tenant fails to make payment or deposit as required by the said regulation 14 (7). The said Regulation 14 (7) is quoted hereunder:- "14 (7) If a tenant fails to make payment or deposit as required by this section, the Court may order the defence against eviction to be struck out and proceed with the hearing of the application." (13.) A plain reading of the aforesaid regulation makes it clear that it is not mandatory on the part of the Court to strike out the defence under regulation 14 (7). The Court may, however, exercise its power in a proper case for striking out the defence for nonpayment or deposit of the required amount in compliance with the order of the Court. (14.) IT is, however, not a proper case where the subsequent conduct of the tenant regarding payment or deposit of the rent should be altogether ignored and the defence should be struck out. (15.) UNDER the aforesaid Regulation 14 (7) the Court may order the defence against eviction to be struck out and therefore the Court has the discretion also in the matter, so that in proper cases the Court may refuse to strike out the defence. The Regulation 14 (7) is directory in nature since the word "may" has been specifically mentioned in the aforesaid regulation. (16.) MR. KHAN, the learned Advocate of the petitioner, however, submits that an interpretation cannot be avoided only because it may result in harsh consequences. (17.) MR. Khan also referred to and relied on a decision of the Supreme court in the case of Nasiruddin and Ors. v. Sita Ram Agarwal, reported in 2003 (2) Supreme Court Cases 577 and further submits that balance between the interest of landlord and those of tenant must be maintained when interpreting the rent control legislation. (18.) IN the aforesaid judgment Honble Supreme Court considered the provisions of Section 13 of Rajasthan Premises (Control of Rent and eviction) Act, 1950 wherein the Court has neither any power to extend the period allowed for deposit of rent nor to condone default in depositing the rent. (18.) IN the aforesaid judgment Honble Supreme Court considered the provisions of Section 13 of Rajasthan Premises (Control of Rent and eviction) Act, 1950 wherein the Court has neither any power to extend the period allowed for deposit of rent nor to condone default in depositing the rent. In Para 25 of the aforesaid judgment Supreme Court has specifically observed:-"25. . . . . . . . . . . . However, discretion available to the Court under the Rajasthan Act, as noticed hereinbefore, is limited. Furthermore, in subsection (6) of Section 13 of the M. P. Act, the word "may" has been used which is directory; in contradistinction with the word "shall" employed in the Rajasthan Act. " (19.) SINCE the provisions of Rajasthan Act is mandatory in nature unlike the Regulation 14 (7) of the Andaman and Nicobar Islands Rent Control regulation, 1964, the aforesaid decision of the Supreme Court in the case of Nasiruddin and Ors. (supra) is distinguishable and has no manner of application to the present case. (20.) CONSIDERING the subsequent conduct of the defendant/tenant regarding payment of the rent the Court can exercise its discretion under regulation 14 (7) and refuse to strike out the defence. The learned District judge, in my opinion, has rightly decided the issues raised in the appeal upon appreciating the discretionary power of the Court. In view of the fact that the Regulation 14 (7) is directory in nature since the word "may" has been used unlike the word "shall" used in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which has also been specifically taken note by the Apex Court in the case of Nasiruddin and Ors. (supra). Therefore, considering the subsequent conduct of the tenant regarding payment of the current rent pursuant to the permission granted by the learned Trial court by the Order No. 40 dated 24th October, 2002 learned First Appellate court has rightly refused to strike out the defence and upset the order passed by the learned Trial Court. Following the decision of the Honble Supreme Court in the case of ashwini Kumar Bahl (supra), I am also inclined to hold that the suit filed by the plaintiff shogld be decided on merits and not on technical grounds. Following the decision of the Honble Supreme Court in the case of ashwini Kumar Bahl (supra), I am also inclined to hold that the suit filed by the plaintiff shogld be decided on merits and not on technical grounds. The learned District Judge, in my opinion, has rightly set aside the order passed by the learned Civil Judge, Senior Division, Port Blair dated 30th july, 2004 and I, therefore, affirm the aforesaid decision of the learned district Judge and dismiss this appeal being devoid of any merit. Let the l. C. R. be sent down to the learned Trial Court for early disposal of the suit in terms of the order passed by the learned First Appellate Court. In the facts of the present case, there will be, however, no order as to costs.