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2013 DIGILAW 143 (RAJ)

Ravindra Singh v. Addl. Distt. Judge No. 2, Alwar

2013-01-17

ALOK SHARMA

body2013
JUDGMENT 1. - A challenge has been made by the petitioner-defendant-tenant (hereinafter `the tenant') to the order dated 30.11.2010 passed by Additional Civil Judge (Junior Division) No.1, Alwar in Case No.291/1995, titled Santosh Devi v. Ravindra Singh (hereinafter `the trial court') allowing an application filed by Smt. Santosh Devi, respondent No.3- Plaintiff landlord (hereinafter `the landlord') under Section 13 (5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter `the 1950 Act'), consequent to which the defence of the tenant in eviction petition qua the ground of default was struck off. The petitioner is also aggrieved of the order dated 13-4-2012 passed by Additional District Judge No.2, Alwar upholding the order dated 30-11-2010. 2. The facts of the case are that the landlord filed a suit for eviction against the tenant in respect of a tenanted residential house on the ground of bonafide need, default, material alterations without consent and nuisance. On an application moved by the landlord provisional rent was determined on 24-10-1992. The tenant challenged the said order upto the High Court. This court vide order dated 4-7-1996 allowed the tenant fifteen days time to deposit the arrears of provisional rent. The rent however was not deposited within the fifteen days, time period allowed, but was deposited on 12-9-1996. In these circumstances the landlord moved an application under Section 13 (5) of the 1950 Act on 30-3-1998. It was stated in the application that the tenant having failed to deposit the arrears of provisional rent as determined under Section 13 (3) of the 1950 Act, within time permitted by the court his defence was liable to struck off on the issue of default. In reply to aforesaid application the tenant submitted that the delay in depositing the arrears of provisional rent was not fatal as on 23-11-2002 the landlord had withdrawn the provisional rent which was deposited on 12-9-1996 and thus waived his right to have the tenant's defence struck off under Section 13 (5) of the 1950 Act. The trial court as also the appellate court vide impugned orders dated 30-11-2010 and 13-4-2012 however negatived the defence of the tenant to the application under Section 13 (5) of the 1950 Act and struck off the defence of the tenant on the issue of default on the finding that the provisional rent and arrears had not been deposited within permissible time. The tenant was however free to contest his case on other grounds set up in eviction suit such as bonafide need, material alterations without landlord's consent and nuisance. 3. Learned counsel for the petitioner has submitted that the order dated 30-11-2010 as also the order dated 13-4-2012 are erroneous and founded upon mis application of law, and therefore liable to be quashed and set aside. Counsel submits that Full Bench of this Court in case of Vishandas v. Savitri Devi, 1988 (1) RLR 1 has held that the provisions of Section 13 (5) of the 1950 Act are merely directory in nature. He submits that in this view of the matter the courts below ought to have applied their mind to the circumstances obtaining for the delay attributable to the tenant in depositing the arrears of provisional rent on 12-9-1996, in spite of being directed by the High Court under order dated 4-7-1996 to deposit the arrears of provisional rent within fifteen days. Counsel submits that the courts below have not addressed the reasons for the delay in depositing the arrears of provisional rent within the prescribed time and without such a consideration have erred in striking off the defence of the tenant in trial of the suit for eviction, albeit limited to the ground of default. 4. Counsel further submits that in any event of the matter the landlord having withdrawn the provisional rent, deposited on 12-9-1996 was to be considered as having waived his right and at the time of the hearing of the application for striking off defence of the tenant the aforesaid waiver operated, the application should have been dismissed. Reliance has been placed on the judgment of this court in case of Chetan Das v. Annusuiya, 1996 (1) WLC (Raj.) 245 to contend that the landlord on the date of consideration of application under Section 13 (5) of the 1950 Act having already withdrawn the amount of provisional rent had waived his right. It is submitted that the courts below thus also erred in striking off the defence of the tenant under Section 13 (5) of the 1950 Act. 5. Per contra, Mr. It is submitted that the courts below thus also erred in striking off the defence of the tenant under Section 13 (5) of the 1950 Act. 5. Per contra, Mr. Mohit Gupta, learned counsel for the landlord would submit that the entire case set up by the tenant in the present petition under Article 227 of the Constitution of India is not sustainable in the face of judgment of the Hon'ble Supreme Court in case of Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC 577 . Counsel submits that the Hon'ble Supreme Court has held that in view of absence of a provision under the 1950 Act for the court to condone the delay in depositing the provisional rent beyond the period of three months, the court does not have the power to extend the period for depositing the rent or to condone a default in depositing the rent in time. Counsel submits that on the aforesaid construction of Section 13 (4) of the 1950 Act as being mandatory non compliance thereof by the tenant entailed the statutory consequence of the defence qua the ground of default being struck off under Section 13 (5) of the 1950 Act. Counsel further submits that the judgment of Full Bench of this court holding that delay in depositing the rent was condonable, would in these circumstances stands impliedly overruled. The contention is that the delay in deposit of arrears of provisional rent beyond the statutorily prescribed period as held in abeyance by the interim orders of the court not being condonable, the defence of the tenant was rightly struck off. Counsel further submits that there is no question of waiver in the facts of the present case. It is submitted that the application under Section 13 (5) of the 1950 Act was filed on 30-3-1998. During pendency of the aforesaid application without prejudice to the right of the landlord a prayer was made before the trial court to allow the withdrawal of arrears of provisional rent deposited by the tenant in compliance with the order dated 24-10-1992 passed by the trial court. Counsel submits that the first application for withdrawal of arrears of provisional rent having been dismissed on 24-2-2001, a second application was filed by the landlord for withdrawal of rent reserving his right to pursue the pending application under Section 13 (5) of the 1950 Act. Counsel submits that the first application for withdrawal of arrears of provisional rent having been dismissed on 24-2-2001, a second application was filed by the landlord for withdrawal of rent reserving his right to pursue the pending application under Section 13 (5) of the 1950 Act. The trial court vide order dated 15-3-2001 again dismissed the application for withdrawal of rent, where upon the landlord filed a revision petition before this court. This court vide order dated 20-3-2002 allowed the revision petition and allowed the landlord to withdraw the arrears of provisional rent deposited by the tenant. Counsel submits that the amount of provisional rent withdrawn by the landlord relates to second application moved on 24-2-2001, wherein the landlord has specifically reserved his right to pursue the application under Section 13 (5) of the 1950 Act. 6. It is submitted that in this view of the aforesaid submissions, the impugned orders dated 30-11-2010 and 13-4-2012 are wholly in compliance with the obtaining law and ought not to interfered with by this court under Article 227 of the Constitution of India. 7. Heard learned counsel for the parties, and perused the material available on record of writ petition. 8. In my considered opinion, the Hon'ble Supreme Court in case of Nasiruddin (supra) having held that the delay in depositing the provisional rent beyond the statutorily prescribed period not being condonable the tenant's default on the aforesaid count would entail the statutory consequence under Section 13 (5) of the 1950 Act of his defence being struck off. The order dated 30-11-2010 passed by the trial court as upheld by the appellate court on 13-4-2012 is therefore on this count not liable to be interfered with. Further, I am of the considered view that the application for withdrawal of rent having been moved by the landlord reserving his right to pursue the application under Section 13 (5) of the 1950 Act, no ground even of waiver can be made out. Waiver as a concept in law entails a deliberate abandonment of a right and such a plea cannot be allowed to be agitated where the plea of alleged abandonment stands contrary to the specific plea of the tenant set up in the application for withdrawal of arrears of provisional rent. Waiver has been defined by the Hon'ble Supreme Court as an intentional relinquishment of rights. Waiver has been defined by the Hon'ble Supreme Court as an intentional relinquishment of rights. It has been held that waiver is contractual in nature and constitutes an agreement not to invoke the other party's obligation. The Bombay High Court in case of Hanerigueta Maria Julieta v. State of Goa, (2008) 4 Maha.L.J. 908 has held that waiver is a question of conduct to be determined in the facts of each. In the instant case it is on record that the landlord moved an application before the trial court to withdraw amount of arrears of provisional rent without prejudice to his right to pursue his application under Section 13 (5) of the 1950 Act. Thus to my mind no intent can be implied to waive the right under Section 13 (5) of the 1950 Act in the present case. 9. The judgments relied upon by the counsel for the petitioner are inapposite and do not attract to the facts of the instant case. 10. For the aforesaid reasons, none of the grounds set up by the counsel for the tenant in support of his case are sustainable in law. I find no force in this writ petition and the same is dismissed. Stay application also stands dismissed.Petition dismissed. *******