Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 989 (RAJ)

Chand Ratan Swami v. Manak Chand

2011-05-11

VINEET KOTHARI

body2011
JUDGMENT 1. - Today, the present second appeal comes up for final disposal at admission stage. 2. Heard learned counsels for the parties and gone through the impugned judgment decree passed by the learned Courts below. 3. The following substantial question of law arises in the present second appeal for consideration by this Court : "Whether eviction decree is liable to be passed against the defendant tenant if during the pendency of the appeal second default in payment of rent is committed by the defendant tenant?" 4. Present second appeal has been filed by the plaintiff-landlord, Chand Ratan Swami being aggrieved of the judgment and order dated 14.2.2008, whereby, Appeal No. 68/2005 filed by the defendant-tenant Mank Chand was allowed by the learned first appellate Court reversing the eviction decree passed by the learned trial Court on 17.5.2005 on the ground of second default committed by the defendant-tenant during the pendency of the appeal. 5. Learned counsel for the appellant-plaintiff-landlord, Mr. Vikas Balia submitted that after the benefit of first default given to the defendant tenant by the learned trial Court during the pendency of his appeal filed being aggrieved of the findings of issue No. 4 against the tenant that he had made material alterations in the suit premises, the defendant tenant committed second default inasmuch as for the period from July 2005 to June 2007 no regular rent was deposited by the defendant tenant despite registered notice sent on 23.7.2007 and the entire rent for 25 months was deposited by the tenant only on 2.8.2007 and, therefore, on the ground of said second default, in view of the Hon'ble Supreme Court decision in the case of Shiv Dutt Jadiya v. Ganga Devi, (2002) 3 SCC 189 and Nasiruddin & Ors. v. Sita Ram Agarwal, AIR 2003 SC 1543 and judgment of this Court in the case of Bulaki Dass v. Ram Swaroop, 2009 (2) RLW 1175 the decree of eviction deserves to be passed irrespective of reversal of findings by the learned first appellate Court on issue No. 4 and deciding the same in favour of tenant that no material alterations were made by him in the suit premises. 6. 6. The reply to the said factual aspect of the matter as to whether second default was committed by the defendant tenant was sought by order of this Court dated 18.4.2011 from the defendant tenant and such reply has been filed today before this Court by learned counsel appearing for the defendant tenant. In the said reply, the defendant tenant has not disputed this position at all that rent of 25 months (for the period from July 2005 to June 2007) was deposited in lumpsum on 2.8.2007 only and no monthly rent was deposited by the defendant tenant. in other words, the second default in payment of rent stood committed by the defendant tenant and this fact has been admitted by defendant tenant. 7. The law in this regard is now well settled that the delay in deposit of rent as determined under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 cannot be condoned and Section 5 of the Limitation Act does not apply in such circumstances. 8. The Hon'ble Supreme Court in Nasiruddin & Ors. v. Sita Ram Agarwal, AIR 2003 SC 1543 held as under: "Where a landlord filed a suit for eviction of tenant on ground of default in payment of rent, it is obligatory on the Court to provisionally determine the amount of rent where for no application is required to be filed. Thereafter, the tenant is required to deposit the amount of rent determined by the Court under sub-section (3) within fifteen days of the date of determination or within such further time not exceeding three months, as may be extended by the Court. The Act as amended in 1976 does not provide either for extension of time or to condone the default in depositing rent within the stipulated period and in absence of such provisions in the Act the Court does not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent. The word 'shall' which is ordinarily imperative in nature, has been used in sub-section (4) of Section 13. The power of the Court has also been limited to the extent that it can extend time for such deposit not exceeding three months and so far as the deposit of monthly rent is concerned, by fifteen days. The Court's power, therefore, is restricted. The power of the Court has also been limited to the extent that it can extend time for such deposit not exceeding three months and so far as the deposit of monthly rent is concerned, by fifteen days. The Court's power, therefore, is restricted. In case tenant deposits the provisional rent as determined by the Court within stipulated period the tenant is relieved by the eviction decree. Sub-section (4) of Section 13 is mandatory. It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant. Sub- section (4) of Section 13 itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by this Court. Secondly, the deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act." 9. Following the said judgment, this Court in Bulaki Dass's case (supra) held as under : "The tenant in order to maintain his tenancy right is allowed to deposit the rent in the Court instead of payment of the same to the landlord only after following the mandatory procedure under, clauses (a) and (b) both. In the present case, there is nothing on record to show that the rent at least for the month of June, 1980 to August, 1980 was tendered to the landlord at any point of time, therefore, deposit for these three months cannot be said to be a valid deposit as per provisions of Section 19A of the Act. Similarly, for the month of September, 1980 to November, 1980, the money order sent by the defendant which were of course refused by the plaintiff landlord for these three months also, there was no deposit of the same by the tenant in the Court under Section 19A of the Act. Thus, for six months from June, 1980 to November, 1980, the second default stood committed by the tenant. Thus, for six months from June, 1980 to November, 1980, the second default stood committed by the tenant. The deposit under Section 19A of the Act which came to be made by the defendant-tenant on 10.2.1981 for 5 months (September, 1980 to January, 1981) was not in accordance with law, after institution of present suit on 4.2.1981 and as procedure both under clauses (a) and (b) was not followed by the tenant and therefore, the said deposit also does not wash away the second default which already stood committed by the defendant-tenant. Admittedly, the law does not permit any leniency and waiver in the case of second default and eviction decree under Section 13(1)(a) of the Act is bound to be passed on commitment of second default in payment of rent. As already discussed above, the second default for the period of six months from June, 1980 to November, 1980 stood committed by the defendant-tenant on 15.12.1980 and the eviction decree was bound to be passed and was, therefore, rightly passed by the Courts below." 10. In view of this admitted position that second default stood committed by the defendant tenant, the learned Court below was bound to pass the eviction decree. 11. Consequently, this second appeal of the appellant-plaintiff landlord is allowed. The defendant-tenant shall handover the. vacant and peaceful possession of the suit premises in dispute to the appellant-plaintiff-landlord within two months from today and shall pay the arrears of rent/mesne profits as determined by the trial Court. If the respondent-defendant-tenant does not handover the vacant and peaceful possession of the suit property in question to the appellant- plaintiff-landlord within two months or does not pay the arrears of rent/mesne profits as directed above, the appellant-plaintiff-landlord shall be free to execute the decree as well as to initiate the contempt proceedings in this Court.Appeal allowed. *******