Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1858 (RAJ)

Ranchod Mal v. Govind Prasad

2012-08-29

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The defendant – tenant Ranchod Mal s/o Birdi Chand Oswal is carrying on the business in the name and style of M/s. Gram Sewa Bhandar in the disputed suit premises situated in Tripolia Bazar, Jodhpur, has filed this second appeal under Section 100 of CPC in this Court on 05.07.1999 through Shri Gopal Raj Singhvi, Advocate against the plaintiff – respondents – landlords, LRs of Navratanmal Rakhecha, Govind Prasad and others being aggrieved by the judgment and decree of the learned First Appellate Court dated 09.03.1999 dismissing both cross-objections of landlord and appeal of defendant - tenant being Civil Appeal No.71/97 Govind Prasad and other legal representatives of Navratanmal Rakhecha vs. Gram Sewal Bhandar and others and Civil Appeal No.75/97 – Ranchodmal s/o Birdi Chand and others vs. Govind Prasad s/o Navratanmal Rakhecha and others. The said appellate court's judgment of learned Additional District Judge No.1, Jodhpur was rendered in cross-appeals by both the parties against the judgment and decree of learned trial court of Additional Civil Judge and Judicial Magistrate, I Class No.6, Jodhpur dated 02.06.1997 in which the eviction suit No.44/95 – Govind Prasad and others vs. Gram Sewa Bhandar and others came to be decreed to the extent of arrears of rent only of Rs.1,980/-, however, refusing eviction decree on the ground of giving benefit of first default under Section 13(6) of the Rajasthan Rent Control Act, 1950. 2. 2. The plaintiffs had filed the said eviction Civil Suit No.44/95, inter alia, on the ground of second default committed in payment of rent by the defendant – tenant, Shri Ranchod Mal, who was carrying on the business in the name and style of M/s. Gram Sewa Bhandar, Tripolia Bazar, Jodhpur and the plaintiffs came to the court with the case that the shop in question situated in the residential house was initially given on rent @ Rs.55/- per month along with an Aura and a Saal which was at the back side of the suit shop and previously also on account of default in payment of rent for 11 months, the plaintiffs had filed earlier suit No.708/1977 in the court of learned Additional Munsif Magistrate No.1, Jodhpur and upon determination of the provisional rent under Section 13(3) of the Act on 16.11.1977, the defendant had deposited Rs.1220.26 on 18.11.1977 and thereafter the suit was dismissed as not pressed on 18.08.1990 by the said learned trial court and since the defendant had taken advantage of first default benefit in the said earlier eviction suit No.708/77, the present suit No.44/95 again filed by the plaintiffs – landlords, was on the ground of second default committed by the defendant – tenant in payment of rent for the long period of 19.10.90 to 2.3.95 for 54 months @ Rs.55/- per month, came to Rs.2,970/- and out of the said 54 months' rent, the plaintiffs claimed recovery of arrears of rent only for a period of three years from 5.3.92 to 2.3.95 for 36 months' amounting to Rs.1980/- and, therefore, the plaintiffs prayed for a decree of eviction on the ground of second default and further mesne profit @ Rs.150/- per month. 3. The learned trial court, however, refused to grant eviction decree in the said subsequent suit No.44/95 vide its judgment and decree dated 2.6.97 and the suit was decreed only to the extent of Rs.1,980/- for recovery of arrears of such rent for the aforesaid period of three years. 3. The learned trial court, however, refused to grant eviction decree in the said subsequent suit No.44/95 vide its judgment and decree dated 2.6.97 and the suit was decreed only to the extent of Rs.1,980/- for recovery of arrears of such rent for the aforesaid period of three years. The learned trial court found that the defendant – tenant had complied with the provisions of Section 19-A of the Rajasthan Rent Control Act, 1950 after tendering such rent to the plaintiffs and through his registered notice, he tried to ascertain to bank account number of the plaintiff landlord, but both money orders as well as registered notices were returned as refused and the defendant had deposited the said rent in the Court, therefore, there was neither any first default on the part of the defendant – tenant nor he took the benefit of first default under Section 13(6) of the Act in the earlier suit and, thus, the later eviction suit No.44/1995 was liable to be dismissed. 4. Being aggrieved by the said judgment and decree of the learned trial court, both the parties filed separate appeals before the learned appellate court of Additional District Judge No.3, Jodhpur namely Civil Appeal No.71/97 Govind Prasad and others vs. Gram Sewa Bhandar and others and the Civil Appeal No.75/97 Ranchod Mal and others vs. Govind Prasad and others. Both these appeals came to be dismissed by the learned appellate court on 9.3.99 and the judgment and decree of the learned trial court dt. 2.6.97 was affirmed. 5. Being aggrieved by the said appellate courts' decision, the defendant – tenant filed the present second appeal No.207/99 in this Court, whereas the landlords have filed their cross-objections No.01/2000 Govind Prasad and others vs. Gram Sewa Sabha and others on 15.10.1999 and both the second appeal of the defendant – tenant and cross objections of plaintiff landlords are being decided by this common judgment. 6. Mr. 6. Mr. G.R. Singhvi, learned counsel appearing for the appellant - defendant – tenant – the business firm owned by Ranchod Mal and Kesri Mal, urged that since in the previous suit No.708/77 filed by the plaintiff on the alleged ground of default in payment of rent, was dismissed by the learned trial court on 18.08.1990 as not pressed by the plaintiff and the court never gave benefit of first default under Section 13(6) of the Act for the first default in payment of rent by the defendant – tenant, therefore, the present and the subsequent suit filed by the plaintiffs namely suit No.44/95 cannot be said to be filed on the ground of alleged second default in payment of rent for the alleged period 19.10.90 to 2.3.95 and, therefore, the courts below were justified in giving the benefit of first default in the present suit and refusing to grant the eviction decree. They further submitted that since the defendant – tenant had deposited the rent in terms of Section 19A of the Act for the alleged period in the court and recovery of arrears was decreed by the court below, is also unsustainable and the decree to that extent deserves to be set aside. 7. Learned counsel for the defendants-tenants relied upon the judgment of this Court in the case of Deela Ram vs. Jugmandir Dass reported in 1992(1) RLR 72 in support of their contentions. 8. On the other hand, Mr. 7. Learned counsel for the defendants-tenants relied upon the judgment of this Court in the case of Deela Ram vs. Jugmandir Dass reported in 1992(1) RLR 72 in support of their contentions. 8. On the other hand, Mr. Suresh Shrimali appearing with plaintiff No.1 Govind Prasad himself in person, urged that the defendant – tenant is a habitual defaulter in payment of rent and later on since the year 2001 he has not paid even a single penny of rent by now for last 10 years and besides this, in the present suit No.44/95, the claim of the plaintiffs landlord about second default for a period of about 54 months from 19.10.1990 to 02.03.1995 was certainly the second default on the part of the defendant – tenant and there was no escape for the courts below except to pass the eviction decree in favour of the landlord on the ground of second default since the first default stood committed and condoned in the previous suit No.708/77, which was upon payment by the defendant – tenant of Rs.1220.26 after determination under Section 13 (3) of the Act by the Court on 16.11.77 and such deposit of Rs.1220.26 was made on 18.11.77 by the defendant – tenant and, therefore, the second default for 54 months in the present suit of Rs.2,970/- for the period 19.10.1990 to 02.03.1995, out of which the plaintiffs landlord only claimed arrears of rent for three years' period 05.03.1992 to 02.03.1995 waiving the other part under the belief that the same was barred by limitation of three years for the period of 09.03.1992 to 09.03.1995 for 36 months only @ Rs.55/-per month totalling to Rs.1980/-. The same was, therefore, certainly the second default, on which the eviction decree deserved to be passed. 9. Learned counsel for the plaintiffs-landlords, Mr. Suresh Shrimali also submitted that the tenancy was from month to month and even after alleged deposit under Section 19-A of the Act, which too was not in accordance with the provisions of Section 19(A) of the Act, the defendant tenant has consistently committed defaults in payment of rent, inasmuch as, a third suit was again required to be filed by the landlord in the present case, namely, Civil Suit No.93/98 Govind Prasad vs. Gram Sewa Bhandar and others, which is pending in the court of Civil Judge, Jr. Division (City), Jodhpur and in the said third suit, the plaintiff landlord again submitted that the defendant tenant has not paid any rent to the plaintiff landlord for the entire year of Samwat Year 2054 to Samwat Year 2055 for more than six months and, therefore, the third default has now been committed by him and actually every month, upon non-payment of rent, default stood committed and in view of such consistent and multiple defaults committed by him, the present second appeal of the defendant tenant deserves to be dismissed with costs, while cross – objections filed by the plaintiff landlord deserves to be allowed and the eviction decree deserves to be passed against the defendant – tenant. 10. While admitting the present second appeal of the defendant – appellant - tenant, a co-ordinate Bench of this Court had framed the following substantial questions of law on 28.07.1999. “(1) Whether against extending the benefit of first default within the meaning of Sub-sec.(6) of Sec.13 of Act No.17 of 1950 in a suit for eviction on the ground specified in Clause (a) of Sub-sec.(1) of the said Section, first appeal and second appeal is maintainable ? (ii) Whether extension of benefit of first default under Sub-sec.(6) of Sec.13 of Act No.17 of 1950 in a suit for eviction on the ground specified in Clause (a) of Sub-sec.(1) of Sec.13 of the said Act is neither a decree as envisaged under Sub-sec. (2) of Sec.2 CPC nor a finding within the meaning of O.41 R.22 CPC but merely a consequence of the finding to the effect that the tenant has neither paid nor tendered the amount of rent due to him for six months on the date of filing of the suit, therefore, no first appeal and thereafter second appeal is maintainable?” 11. I have heard learned counsels at length and given my thoughtful consideration and perused the judgments under appeal. 12. I have heard learned counsels at length and given my thoughtful consideration and perused the judgments under appeal. 12. This Court is of the considered opinion that in the present case both the courts below have erred in rejecting the prayer of landlord plaintiff for eviction and the present second appeal filed by the defendant tenant deserves to be dismissed and the cross-objections filed by the plaintiff – landlord deserves to be allowed and the substantial questions of law framed by this Court on 28.7.99 are required to be answered in favour of the plaintiff landlord and against the defendant – tenant. The reasons are as follows. 13. The provision of Section 13(6) of the Act are quoted below for ready reference: “13(6): If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court against him. Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months.” 14. A bare perusal of the said provisions of Section 13(6) of the Act clearly indicates that the benefit of 'no eviction decree' is given as a measure of protection to the tenant, in case the default is first in nature and bonafide, depending upon “deposit or payment” of the arrears of such default in payment of rent, the eviction decree is not passed, though there is a default in payment of rent on the part of the tenant. Thus, the benefit is 'no eviction decree' and condition is 'payment or deposit' of rent by tenant and further condition is that such default is first. 15. Thus, the benefit is 'no eviction decree' and condition is 'payment or deposit' of rent by tenant and further condition is that such default is first. 15. In the present case, mere fact that the previous suit No.708/77 came to be not pressed by the plaintiff on 18.8.90 upon payment of arrears of rent in which the tenant had committed the default in payment of rent after determination of the same by the Court under Sec. 13(3) of the Act on 16.11.77 and such deposit made on 18.11.77 and thus, no eviction decree was passed against him, shows that tenant has availed the benefit of Section 13(6) of the Act in suit No.708/77 and escaped an eviction decree. The default in payment of rent was admitted, since the payment of rent was made by the defendant tenant on 18.11.77 of Rs.1220.26 only after determination of the same by the Court in the suit No.708/77 on 16.11.77, which payment was admittedly not made by the defendant tenant prior to that point of time on 18.11.77. Merely because the said stipulation is not made in the order of the court that benefit of first default is being given to the defendant – tenant under Section 13(6) of the Act, it does not mean that such benefit upon payment of arrears of rent in default is not taken by the tenant and the eviction decree is not passed against him. Both these things happened in previous suit No.708/77. 16. In the present case, namely the suit No.44/95, the second default for as long a period of 54 months from 10.10.1990 to 02.03.1995 was again made by the same defendant-tenant for the same suit premises and again a deposit was purportedly made by him by so called compliance under Section 19-A of the Act vide Ex.3 dated 20.8.1977. 17. The third suit is said to be filed later on again on the ground of default in payment of rent and is still pending by the plaintiff landlord namely suit No.93/98. 18. 17. The third suit is said to be filed later on again on the ground of default in payment of rent and is still pending by the plaintiff landlord namely suit No.93/98. 18. Thus, the conduct of the defendant - tenant is very clear and consistently defaults actually every month stood committed by him and he has put up a stubborn and brazen face before the court every time that the courts determine the rent and arrears and he deposits the arrears of rent, as if payment of monthly rent by him under the rent note agreement was not an obligation upon him. Actually, multiple defaults stood committed and not only second default and, therefore, there was no escape but to pass an eviction decree against the defendants-tenants in the present suit No.44/95. 19. The protection and the benefit or the leniency granted to the tenant under Section 13(6) of the Act is only for the first and bonafide lapse on his part and that benefit is also given upon deposit or payment of arrears of rent by him, but here the defendant tenant seems to be in habit of non- payment the rent to the landlord, though it was as minimal as Rs.55/- per month and this case is a clearly bad example of undue advantage taken by the tenant of the protection of law given to tenant, subject to conditions which have to be strictly complied with and essentially fulfilled. Such protection is not available to such tenants, who are in the habits of committing defaults in payment of monthly rent to the landlord and then taking up the technical pleas like in the present case that the Court did not give any benefit of Section 13(6) at the time of deciding the previous suit No.708/77 on 18.11.77 or 18.08.1990 while disposing of the suit and, therefore, the second default for the period 19.10.90 to 2.3.95 is not actually the “second default”, but becomes the first default. Such a blatant and frivolous plea cannot be and should not have been entertained by the courts below, but unfortunately it has not been entertained by the courts below, but the long drawn legal battle up to High Court has just given the undue advantage to the defendant tenant in the present case. 20. Such a blatant and frivolous plea cannot be and should not have been entertained by the courts below, but unfortunately it has not been entertained by the courts below, but the long drawn legal battle up to High Court has just given the undue advantage to the defendant tenant in the present case. 20. While the case laws, relied upon by the learned counsel for the defendant tenant in Deela Ram vs. Jugmandir Das (supra) is not applicable to the present case. It was held in that case, as under: “It is not disputed that in the earlier suit filed by the plaintiff on the ground of non-payment of rent the defendant had appeared in court on the first date of hearing and the suit had been dismissed by the learned trial Court on the ground that the plaintiff having received the amount of rent from the defendant, did not want to proceed with the case. The said case, therefore, did not come in the category No.2 mentioned about but was dismissed for non-prosecution by the plaintiff who though present did not want to proceed with it. In my view, therefore, it is not possible to hold that the suit was dismissed by giving the defendant-appellant the benefit provided under sub-sec. (6) of Sec.13 of the Act. There is thus no material to hold that the defen-dant-appellant had been given the aforesaid benefit in the earlier suit.” The defendant - tenant in the present case has enjoyed the benefit of Section 13(6) of the Act, once at the time of disposal of the first suit No.708/77 and escaped the eviction decree. On the other hand, the case laws relied upon by the learned counsel for the respondent-plaintiff, Mr.Suresh Shrimali clearly and fully supports his case. 21. This Court in the case of Bulaki Dass S/o Asha Ram Purohit vs. Ram Swaroop S/O late Dwarka Dass Rathi reported in (2009) 1 DNJ 436 = 2009(2) RLW 1175 while dealing with the contentions raised by the learned counsel for the plaintiffs-defendants, in para 8 observed as under: “18. 21. This Court in the case of Bulaki Dass S/o Asha Ram Purohit vs. Ram Swaroop S/O late Dwarka Dass Rathi reported in (2009) 1 DNJ 436 = 2009(2) RLW 1175 while dealing with the contentions raised by the learned counsel for the plaintiffs-defendants, in para 8 observed as under: “18. Having heard the learned counsel at length and having gone through the record of the case and the judgments of two Courts below and the judgments cited at Bar, this Court is of the clear opinion that the courts below cannot be said to have erred in any manner in passing the eviction decree against the appellant – tenant on the ground of second default. The deposit in the court of learned Munsif Magistrate without any procedure known to law at all under section 19A of the Act or otherwise is of no consequence and cannot enure to the benefit of the defendant – tenant. The said deposit, if any, is no deposit and has been rightly treated as not a valid tender of rent by the defendant – tenant by the Courts below. Admittedly, the first deposit itself for the month of June, 1980 was made by the tenant on 14.7.1980 after the suit proceedings terminated on 11.7.1980 with dismissal of the appeal by the first appellate court. Therefore, on 14.7.1980, no proceedings were pending in the Court and therefore, deposit of rent for the month of June, 1980 in the learned trial Court was not at all a valid tender. Similarly deposits for the month of July, 1980 and August, 1980 were also without any consequence. The present and second suit came to be filed by the plaintiff on 4.2.1981. Though it was required of the learned trial Court to determine the arrears of rent under Section 13 (3) of the Act, since it was a suit on the ground of second default, merely because that is not done, the defendant – tenant cannot take any advantage of that situation. After institution of the suit on 4.2.1981, any deposit under Section 19A of the Act was also not permissible as held by this Court in Swaran Devi vs. Kailash Chandra (supra). After institution of the suit on 4.2.1981, any deposit under Section 19A of the Act was also not permissible as held by this Court in Swaran Devi vs. Kailash Chandra (supra). The provisions of Section 19A of the Act are meant to be resorted if the landlord illegally refuses to accept the rent from the tenant after following the procedure under Clause (a) and (b) both, as has been laid down in the case of Bajrang Lal vs. Ramdeo (supra). Nothing of this sort under Clause (b) was followed by the appellant for any of the default months upto January, 1981. 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 clause (a) and (b) both. In the present case, there is nothing on record to show that the rent atleast 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. 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 clause (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. 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 15th December, 1980 and the eviction decree was bound to be passed and was, therefore, rightly passed by the courts below.” 22. This Court in the case of M/s Indian Oil Corporation Ltd. vs. LR's of Teju Devi (S.B. Civil Second Appeal No.107/2012) decided on 30.07.2012 while dealing with the various judgments of the Apex Court held as under: “Having heard learned counsels for the parties and upon perusal of impugned judgments and decree of the courts below as well as in view of aforesaid case laws, cited at the bar, this Court is of the opi-nion that no substantial question of law arises in the present second appeals of the defendants-tenants. There was no justification for the non-depositing of rent after restoration of appeal on 1.2.2003. The defendants did not deposit the rent for a long period of nine years i.e. from 1.2.2003 to October, 2011. The tenancy in question was monthly and on account of monthly default, much more than, six months' default occurred during the pendency of the first appeal. Furthermore, there was no question of giving any further opportunity since at the relevant point of time, the judgment of the Hon'ble Apex Court in the case of Shiv Dutt Jadiya (supra) had already been pronounced on 20.2.2002. The observations of Hon'ble Supreme Court in para 9, quoted above, was limited to that particular case only and it is not a judgment in rem to that extent of observations. Mere ignorance on the part of the tenant of this legal position, is of no excuse and they cannot claim that confusion, which arose because of previous judgment of learned Single Judge of this Court in the case of Kamruddin vs. Wahid Ali (1987) (I) RLR 290, the opportunity under Section 19-A of the Act was required to be given by the lower appellate court below.” 23. The defendant-tenant failed to establish compliance with Section 19A of the Act in accordance with the aforesaid judgment of the Court rendered after relying upon Supreme Court decisions. 24. Therefore, this Court is fully satisfied and convinced that the present second appeal filed by the defendants – appellants - tenants deserves to be dismissed with exemplary costs and the cross-objections of the plaintiff res-pondents deserve to be allowed and the mesne profit prevailing at the market rate of rent during such long drawn legal battle also deserve to be awarded in favour of the plaintiff landlord, which should be recovered from the defendant tenant as a money decree against defendants – appellants. The questions framed above are answered against the defendants-tenants accordingly. 25. Consequently, the present second appeal of the defendants is dismissed and cross-objections of landlord are allowed with consolidated costs of Rs.10,000/- to be paid by the defendants-tenants to the plaintiffs-respondents landlords within three months from today. 26. The appellant-defendant-tenant shall also hand over the peaceful and vacant possession of the suit property viz. shop and entire suit premises situated at Tripolia Bazar, Jodhpur in question to the respondents-plaintiffs within a period of six months from today i.e. on or before 28.2.2013 and shall pay mesne profit @ Rs.500/-per month, from the judgment and decree of the learned trial court dated 02.06.1997 i.e. June 1997 till the date of judgment and decree of first appellate court dated 9.3.1999 i.e. March, 1999 and @ Rs.1,000/- per month from the date of first appellate court's judgment dated 09.03.1999 i.e. April, 1999 till the vacant and peaceful possession of the suit premises is not handed over to the plaintiff landlord within aforesaid six months. The arrears of mesne profits shall be paid within three months from today and the tenants will further continue to pay the mesne profits @ Rs.1,000/- per month, each month by 15th day of the next succeeding month or in advance to the respondents - plaintiffs and in case there is any default in payment of mesne profits, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant-tenant shall also clear all the arrears of rent and mesne profits and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The defendant-tenant shall also clear all the arrears of rent and mesne profits and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the suit property during the aforesaid period and the same would be treated as void. The appellant-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of six months from today or mesne profits including arrears are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.