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2013 DIGILAW 26 (SIK)

Taramani Devi Agarwal v. Krishna Company

2013-08-20

PIUS C KURIAKOSE, S.P.WANGDI

body2013
Judgment Wangdi, J. This reference is made by the learned District Judge, East and North at Gangtok under Section 113 of CPC. The question referred to us for consideration is as follows:- “Whether in a suit for eviction and realization of rent under the Gangtok Rent Control and Eviction Act, 1956 the Defendant can deposit rent in the Court in terms of Order XXIV of CPC, 1908, in consideration of the Judgment of the Hon’ble High Court in Tek Chand Agarwal vrs. Prem Prakash Agarwal; Civil Reference No. 1 of 1987 dated 11.5.1987 and Jagdish Prasad vrs. Tashi Tshering Bhutia; R.F.A. No. 1 of 2008 dated 21.5.2010.” 2. We have heard Mr. B.R. Pradhan, learned senior counsel for the defendant and Mr. Sudesh Joshi, learned counsel for the plaintiff in the trial Court. In our view the reference made by the learned trial Court appears to be unwarranted in view of the clear and categorical finding in the case of Tek Chand Agarwal (supra). In order to appreciate the facts and the circumstances leading to the reference and judgment in Tek Chand Agarwal’s case, it is relevant to note that at the material time confusion had arisen as to the forum before which the tenants could deposit rent in the event of the landlords refusing to accept in order to protect themselves from the mischief of default and consequential liability of their eviction from the tenanted premises occupied by them as provided under the Gangtok Rent Control and Eviction Act, 1956. In that case, it was submitted that the practice of the tenants depositing rent in Court had been followed since the Rule of the Chogyal and that the practice ought to continue so that tenants will not be put to difficulties when the landlords refuse to accept rent. 3. A Division Bench of this Court presided over by Hon’ble Mr. Justice J.K. Mohanty, the then Chief Justice, with Hon’ble Mr. Justice R. Dayal, as his companion justice, had been pleased to answer the reference, inter alia, in the manner as follows: “4. As it is evidence from the above provisions, in case of failure to pay four months’ rent or more a tenant can be evicted. There is no provision for depositing rent in Court. Justice R. Dayal, as his companion justice, had been pleased to answer the reference, inter alia, in the manner as follows: “4. As it is evidence from the above provisions, in case of failure to pay four months’ rent or more a tenant can be evicted. There is no provision for depositing rent in Court. But the Courts are following the practice accepting rent and thereafter issuing notices to the landlords to appear in the Court to receive the amount. In some case, the landlords do not appear and the money remains deposited in the Court for several years. 5. As it is evident from the above facts and circumstances, the Court is unnecessarily burdened with the additional work, though there is no such provision under the Act. It is upto the tenant to tender rent to the landlord. We express no opinion as to how the money will be tendered as we are not required to do so in this proceeding.” 4. It is, therefore, apparent from the above that this Court had come to a finding that the Courts below were unnecessarily following the practice of accepting rent and thereafter issuing notices to the landlords who would appear before the Court to receive the amount when there was no such provision in the statute. It was thus observed that this Court is unnecessarily burdened with the additional work. It was then opined that it was upto the tenant to tender the rent to the landlord leaving the mode and method of such tender upon the tenants. 5. We have also perused the judgment in the case of Jagdish Prasad vs. Tashi Tsh. Bhutia (supra) and upon its consideration, we are clearly of the view that the Single Bench consisting of the then Hon’ble Chief Justice appears to have overlooked the facts of the case in observing as it did in paragraph 12 of the judgment extracted in the order of reference by the learned District Judge. This, in our view, appears to be quite apparent from the facts of the case narrated in paragraph 9 of the judgment wherein the genesis of the case is found to have been set out briefly in so far as it relates to the question of default. This, in our view, appears to be quite apparent from the facts of the case narrated in paragraph 9 of the judgment wherein the genesis of the case is found to have been set out briefly in so far as it relates to the question of default. It was not a case where the tenant wanted to deposit the arrears of rent in Court at a pre-litigative stage as in Tek Chand Agarwal’s case but during the pendency of the suit, a situation squarely falling within the ambit of Order XXIV CPC. 6. We may, for convenience, extract the relevant portion of paragraph 12 of the judgment, which reads as under: “The said question was answered by the Division Bench, without, however, noticing the provisions contained in Order XXIV of the Code of Civil Procedure, 1908, by saying that though there is no provision for depositing rent in Court, but the Courts are adopting the practice of accepting rent and thereafter issuing notices to the landlords to appear in the Court to receive the amount and in some cases, the landlords do not appear and the money remains deposited in the Court for several years and accordingly the Court is unnecessarily being burdened with additional work. By the said judgment and order, the Courts of the District Judges were directed not to accept any deposit of rent in their Courts. First of all the judgment did not take note of Order XXIV of the Code and secondly the judgment was pertaining to Gangtok Rent Control and Eviction Act, 1956. Be that as it may, by reason of the said judgment, the appellant may have been misled and accordingly he did not deposit rent in Court, but the fact remains that he deposited such rent subsequently and is continuing to deposit the same in Court in terms of the orders of this Court, as referred above. The question is, can such conduct be treated as special equity in favour of the appellant for not exercising discretion to permit his eviction?” 7. The question is, can such conduct be treated as special equity in favour of the appellant for not exercising discretion to permit his eviction?” 7. In the present case in which the reference has been made, the fact appears to be that the defendants had sought for permission to deposit the arrears of rent and rent pending litigation in the light of the prayers (c) and (d) contained in the plaint, which was refused on account of the perceived conflict in the judgment in Tek Chand Agarwal (supra) and Jagdish Prasad (supra). 8. In our view, the conflict in the decisions perceived by the learned District Judge in the two judgments does not appear to exist as would be clear also from a bare perusal of Order XXIV Rule 1 CPC which begins with the head “Deposit by defendant of amount in satisfaction of claim”. This evidently is made as an enabling provision under the Code for the defaulting parties to deposit their dues in Court during the pendency of a suit. 9. For the aforesaid reasons, we are clearly of the view that there is no confusion or conflict at all in the judgments in Tek Chand Agarwal’s case and the case of Jagdish Prasad as expressed by the learned District Judge, East & North Sikkim. This, therefore, answers the reference. 10. The defendant shall be at liberty under provision of Order XXIV to deposit such amount of money in satisfaction of the claims made by the plaintiff in paragraphs (c) and (d) of the plaint. 11. This, of course, would be without prejudice to his right of defence against the plea of default set up against him by the plaintiff in the suit. It is also made clear that observations made by us in this judgment shall not be construed as expression of our opinion on the merits of the case. 12. A copy of this judgment be transmitted forthwith to the Court of the Learned District Judge, East and North Sikkim, for compliance. Pius, J. 13. I have been carefully listening to the very learned judgment just now delivered orally by my learned brother, Justice Wangdi. I am in complete agreement with whatever was stated by my learned brother. I, however, would like to add a few line of mine. 14. Pius, J. 13. I have been carefully listening to the very learned judgment just now delivered orally by my learned brother, Justice Wangdi. I am in complete agreement with whatever was stated by my learned brother. I, however, would like to add a few line of mine. 14. According to me, the present situation arose on account of the unsatisfactory nature of the statutory position in Sikkim regarding Rent Control Law. In this connection, I recall my own judgment in RFA No. 01/2012 Smt. Rajala Devi and others vs. Shri Tashi Tshering Bhutia, wherein I had pointed out various blemishes and infirmities in the two Rent Control Legislations which are available in the State of Sikkim, namely the Notification No. 6326-600-H& W-B dated 14.04.1949 promulgated by the Maharaja of Sikkim and the Gangtok Rent Control and Eviction Act, 1956. I had forwarded a copy of that judgment to the Government expressing hope that the Government will take steps so that a comprehensive legislation in the lines indicated therein will be available for the benefit of both the landlords and the tenants. On a survey of various rent control legislations in India, it is seen that most of them contain a provision which compels the tenants to pay the arrears of rent admitted by them and also the rent which falls due during the pendency of ongoing proceedings failing which the tenant will not be allowed to contest the proceedings. For example, Section 12 of Kerala Buildings (Lease and Rent Control) Act No. 2 of 1965, which entails summary eviction for a tenant after striking off his defence in case he does not pay the rent which falls due subsequent to the initiation of proceedings even in cases where rent arrears is not taken as a substantive ground at all. According to me, incorporation of such a provision compelling the tenant to pay the arrears of rent admitted by them and the rent which falls due subsequent to the proceedings entailing them with liability for summary eviction will be beneficial to the landlords and also to the tenants.