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2013 DIGILAW 973 (RAJ)

Vijay Kumar v. Addl. District Judge

2013-05-10

GOPAL KRISHAN VYAS

body2013
JUDGMENT 1. - The instant writ petition has been filed by the petitioners defendants to quash the impugned orders dated 20.12.2005 (Annex.3) passed by Civil Judge (JD), Jodhpur City, Jodhpur whereby the learned trial Court struck down the right of defence on the ground that petitioner deposited the monthly rent on 17.5.2005 for a period of two months, which is April and May, 2005 in which there was delay of two days because rent was to be deposited on 15.5.2005. The petitioners are also challenging the order dated 7.3.2006 Annexure-5 passed by the Addl District & Sessions Judge No.3, Jodhpur by which an appeal filed by the petitioner defendants under Section 22 of the Rajasthan Premises (Control of rent and Eviction) Act, 1950 was dismissed and order passed by the trial Court dated 20.12.2005 was affirmed. 2. As per facts of the case, the respondent Nos.3 and 4 preferred a suit for eviction against the petitioners defendants in which after filing written statement the trial Court determined the provisional rent on 20.2.2003 against which an appeal was preferred and the same was partly allowed by the appellate court. 3. On 16.12.2004/15.1.2005, an application under Section 13 (5) of the Act was filed by the non-petitioner plaintiffs in which it is pleaded that petitioner defendant had not deposited the rent as per provisions of law, therefore, defence may be struck out. The petitioners filed reply to the said application in detail and submitted that on number of occasions the rent was deposited in defence in pursuance of the order passed on 20.2.2003 and monthly rent of April and May, 2005 was to be deposited on 15.5.2005 but it was deposited after delay of two days. The learned trial Court accepted the application filed by the non-petitioner Nos.3 and 4 and struck down the defence vide impugned order dated 20.12.2005 on the ground that delay cannot be condoned in view of the Supreme Court judgment. 4. Being aggrieved and dissatisfied with the order passed by the trial Court on 20.12.2005 (Annex.3) an appeal was preferred but appellate Court vide impugned order dated 7.3.2006 dismissed the appeal and upheld the order passed by the trial Court. 5. 4. Being aggrieved and dissatisfied with the order passed by the trial Court on 20.12.2005 (Annex.3) an appeal was preferred but appellate Court vide impugned order dated 7.3.2006 dismissed the appeal and upheld the order passed by the trial Court. 5. Learned counsel for the petitioners submits that both the orders impugned in this writ petition are bad in the eye of law because petitioners had deposited the rent on various occasions in advance and Section 13 (4) of the Act provides that the tenant shall deposit the rent in the Court or pay to the landlord the amount determined by the Court under Sub-section 3 within fifteen days from the date of such determination or within such further time, not exceeding three months as may be extended by the court. There is provision that tenant shall also continue the deposit in the Court or pay to the land lord, month by month, the monthly rent subsequent to period upto which the determination has been made by fifteenth of each succeeding month or within such further time, not exceeding 15 days as may be extended by the Court, at the monthly rate on which the rent was determined by the Court under sub-section (3). According to the petitioners, both the Court below has failed to consider the above provisions in right perspective, therefore, both the order impugned deserves to be quashed. 6. Learned counsel for the petitioners further argued that application filed by the non-petitioners under Section 13 (5) of the Act is totally vague because the rent was deposited by the petitioner within time limit as provided under Section 13 (4) of the Act but this aspect of the matter has been over looked by the trial Court. A ground is raised in this writ petition by the petitioners that both the Courts below erred in law in not considering the settled proposition of law that the Act of 1950 is a beneficial legislation and its object was to protect the tenants from the mighty landlords. A ground is raised in this writ petition by the petitioners that both the Courts below erred in law in not considering the settled proposition of law that the Act of 1950 is a beneficial legislation and its object was to protect the tenants from the mighty landlords. Further, it is submitted that statute has been enacted with a view to provide protection to the tenants and, therefore, while considering the provisions of the statute, the substance of the matter is to be looked into and not merely the faults, therefore, the delay of two days only was not intentional or out come of any malafide intention, therefore, at the time of deciding application under Section 13 (5) of the Act, the trial Court was under obligation to consider all the circumstances and Section 13 (4) of the Act but trial Court allowed the application against the settled principles of law, therefore, both the orders may be quashed. 7. In support of his contentions, learned counsel for the petitioners submits that in the judgment rendered by Hon'ble Supreme Court reported in AIR 2003 SCW 908 (Nasiruddin & Ors. v. Sita Ram) , the Hon'ble Supreme Court although held that sub-section 4 of Section 13 of the Act is mandatory and Section 5 of the Limitation Act is inapplicable but in para-46 of the judgment, it is specifically observed that the matter may be examined from another angle. The deposit was 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 of the Limitation Act cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act and in para 47 of the judgment, it is observed that the Court can condone the default only when the statute confers such a power on the Court and not otherwise. Therefore, in this case two days delay can be condoned for the simple reason that as per Section 13 (4) of the Act, there is power left with the Court to extend the time for fifteen days but trial Court erroneously refused to condone the delay and committed a grave error while allowing the application filed under Order 13 (5) of the Act, therefore, both the orders impugned deserves to be quashed. 8. While inviting attention towards the order dated 1.4.2013 passed by Coordinate Bench of this Court in SBCWP No.1650/2004 (Amar Singh v. Smt. Rukmani Devi & Ors.) , it is submitted that upon similar facts of the case, the Coordinate Bench passed an order that trial Court may proceed with hearing of the civil suit and decide the same ignoring the orders impugned passed in identical situation. 9. Per contra, learned counsel for the respondents submits that no application was filed by the petitioners for condonation of two days delay and admittedly, there was delay of two days in depositing the rent of month of April and May, 2005, therefore, an application was filed by the non-petitioners under Section 13 (5) of the Act with the prayer to strike of petitioners' defence, therefore, the trial Court has rightly allowed the application filed by the petitioners while saying that there is no provision for condonation of delay. Therefore, no interference is required in this case. 10. Learned counsel for the respondents invited attention of this Court towards the judgment rendered by this Court reported in 2006 (2) RLW 924 (Om Prakash & Ors. v. District Judge, Bikaner & Anr.) and 2005 (4) RLW 2288 (LRs of Ramdev v. Vijay Narayan) and Division Bench judgment of Hon'ble Supreme Court reported in RLW 2003 (2) SC 315 (Nasirruddin & Ors. v. Sita Ram) and the judgment reported in RLW 2005 (2) (Raj) 1114 (Hira Lal v. Mandir Shri Thakurji Sangria & Anr.) . While citing above judgments, it is submitted that no error has been committed by the trial Court in allowing the application filed under Section 13 (5) of the Act because no application was filed by the petitioners for condonation of delay of two days and as per aforesaid judgments, the provisions of Section 5 of the Limitation Act does not apply in this case, therefore, the orders impugned do not require any interfere by this Court. 11. 11. After hearing learned counsel for the parties, I have perused Section 13 (4) of the Act of 1950, which reads as under:- "(4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3)." 12. Upon perusal of Section 13 (4) of the Act of 1950, it is abundantly clear that there is power left with the Court to extend 15 days time and in this case, the delay is of two days out of which one day was Sunday but trial Court refused to exercise its power on the premises that provisions of Limitation Act are not applicable. 13. In my opinion, although there is adjudication of Hon'ble Supreme Court in various judgments cited by learned counsel for the respondents that delay cannot be condoned but at the same time, the trial Court cannot loose sight of the fact that there is power left with the Court to extend the time upto fifteen days as per Section 13 (4) of the Act but here in this case, the trial Court as well as appellate Court completely ignored the fact that there is power left with the Court to extend the time upto 15 days. It is true that power for extension of time can be condoned upon application and in this case, no application has been filed by the petitioners for condonation of delay of two days in depositing the rent but at the same time when application was filed by the respondent Nos. It is true that power for extension of time can be condoned upon application and in this case, no application has been filed by the petitioners for condonation of delay of two days in depositing the rent but at the same time when application was filed by the respondent Nos. 3 and 4 under Section 13 (5) of the Act of 1950 then at the time of deciding the said application instead of striking down the defence the provisions of Section 13 (4) of the Act of 1950 was to be considered for the purpose of extension of time for condonation of delay of two days but upon perusal of order of the trial Court, it is abundantly clear that the power left with the Court to extend the time is not exercised solely on the ground that the provisions of Limitation Act is not applicable but trial Court completely ignored the fact that there is power left with the Court to extend the time upto 15 days, therefore, in the opinion of this Court, it is a case in which the trial Court has failed to exercise its power upon the facts and circumstances of this case. 14. In view of above, both the order impugned dated 20.12.2005 (Annex.3) passed by Civil Judge (JD), Jodhpur City, Jodhpur and order dated 7.3.2006 (Annexure-5) are hereby quashed and set aside and trial Court is directed to decide the suit itself within reasonable time. 15. The writ petition is allowed in above terms.Petition Allowed. *******