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2014 DIGILAW 181 (CHH)

Swastik Traders v. Basant Kumar Mohta

2014-04-26

SANJAY K.AGRAWAL

body2014
Judgment Sanjay K. Agrawal, J. 1. Invoking Section 100 of the Code of Civil Procedure, defendant/tenant has filed this appeal impugning the legality and correctness of the judgment and decree dated 7-2-2014 passed by the 2nd Additional District Judge, Rajnandgaon, District Rajnandgaon in Civil Appeal No. 43-A/2013 whereby his appeal under Section 96 of the CPC has been dismissed affirming the judgment and decree dated 27-7-2012 passed by 1st Civil Judge, Class I, Rajnandgaon, in Civil Suit No. 39-A/2011 decreeing the suit under Section 12(1)(a) of the Chhattisgarh Accommodation Control Act, 1961 (for short "the Act of 1961"). (For sake of convenience, the parties would be referred hereinafter as per their status before the Trial Court). 2. Facts of the case, in brief, are as under:- 2.1. Plaintiff-Basant Kumar Mohta instituted a suit claiming eviction of suit house, which is used by tenant for storage of commercial goods and godown, and arrears of rent on the ground enumerated under Section 12(1)(a) of the Act of 1961. It is the case of the plaintiff that suit house was let out on a monthly rent of Rs. 125/- and tenancy starts from 1st date of each English Calendar month. It is further case of the plaintiff that defendant did not make payment of rent with effect from 1-4-2002 upto April, 2005 and amount of Rs. 8,625/- is outstanding and thus, he is entitled for decree of eviction along with arrears of rent. 2.2. Defendant, by filing his written statement, admitted the relationship of landlord and tenant between the parties and stated that he has paid entire rent and rent is not outstanding against him, therefore, the plaintiffs suit deserves to be dismissed. 3. The Trial Court, on appreciation of oral and documentary evidence available on record, decreed the suit and held that plaintiff is entitled for decree under Section 12(1)(a) of the Act, though he has deposited the rent on 15-11-2011 in compliance of the Trial Court's order dated 11-11-2011. 4. First appeal preferred thereagainst was also dismissed by judgment and decree impugned. 5. Mr. 4. First appeal preferred thereagainst was also dismissed by judgment and decree impugned. 5. Mr. H.B. Agrawal, learned Senior Counsel appearing for the appellant/defendant would submit that the defendant/tenant has deposited the entire arrears of rent on 15-11-2011 pursuant to order passed by the Trial Court on the plaintiff/landlord's application under Section 13(6) of the Act of 1961, therefore, no decree for eviction could have been passed by the Trial Court and the First Appellate Court has also committed palpable error of jurisdiction in affirming the judgment and decree of the Trial Court. 6. I have heard learned Counsel appearing for the parties and perused the records of both the Courts below with utmost circumspection. 7. A close perusal of the record would show that plaintiff filed a suit on 13-1-2011 claiming eviction and arrears of rent, i.e., Rs. 8,625/-. Defendant entered into appearance on 10-3-2011 but he did not deposit the arrears of rent within one month from the date of service of summon to him. Thereafter, plaintiff filed an application under Section 13(6) of the Act of 1961 for striking out the defence of the defendant/tenant. In the said application, the Trial Court passed an order on 11-11-2001 as under:- ^^vr% izdj.k dh ifjfLFkfr;ksa esa vkosnu varxZr /kkjk 13¼6½ LFkku fu;a=.k vf/kfu;e ¼vkbZ-,-1½ bl funsZ’k ds lkFk Lohdkj fd;k tkrk gS fd & izfroknh )kjk vkxkeh frfFk 25-11-2011 rd /kkjk 13¼1½ LFkku fu;a=.k vf/kfu;e ds vuqlkj okn ls lacaf/kr laiw.kZ cdk;k fdjk;k jkf’k dk fu{ksi vFkok oknh dks lank; ugha fd;k tkus ij izdj.k esa izfroknh dh csn[kyh ds fo:) izfrj{kk dkV nh eku yh tkosxh vkSj mDr n’kk esa izfroknh ds )kjk /kkjk 12 LFkku fu;a=.k vf/kfu;e ds rgr~ mBk;s x;s fu”dklu ds vk/kkjksa dk [k.Mu ugha dj ldsxkA izdj.k okLrs lk{; frfFk fu/kkZj.k 25-11-2011** 8. The defendant, in compliance of the above order dated 11-11-2011 passed by the Trial Court deposited entire rent of Rs. 10,125/- on 15-11-2011 and on the strength of the said deposit, contention of learned Counsel appearing for the appellant/defendant is that the decree from eviction ought not to have been passed by the Trial Court and First Appellate Court has committed illegality in affirming the decree so passed. 9. 10,125/- on 15-11-2011 and on the strength of the said deposit, contention of learned Counsel appearing for the appellant/defendant is that the decree from eviction ought not to have been passed by the Trial Court and First Appellate Court has committed illegality in affirming the decree so passed. 9. For proper comprehension of the attack made to the decree passed by two Courts below under Section 12(1)(a) of the Act, it would be profitable to notice the relevant provisions of the Act, which read as under:- 10. Section 12(1) of the Act restricts the right of landlord to evict his tenant only on the grounds enumerated in the said section:- "12. Restrictions on eviction of tenants.- (1) Notwithstanding anything the contrary contained in any other law or contract, no suit be filed in any Civil Court against a tenant for his eviction from any accommodation except one or more of the following grounds only, namely:- (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner; *** *** ****" By sub-section (3) provided as under:- "No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-section (1), if the tenant makes payment or deposit as required by Section 13. *** *** ****" By Section 13(1), it is provided:- "On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate." By sub-sections (5) and (6), it is provided:- "(5) If a tenant makes deposit or payment as required by sub-section (1) of sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord. (6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit." 11. The Supreme Court in case of B.C. Kame Vs. Nemi Chand Jain, (1970) 3 SCC 281 : AIR 1970 SC 981 , has held that tenant has two opportunities to make payment of rent to avoid decree of eviction and inter alia observed as under:- "5. It is clearly intended thereby that the non-payment of rent, the tenancy shall not be terminated and the Court shall not pass a decree in ejectment if within two months of the date on which a notice of demand for rent has been served on the tenant he makes payment of the amount or tenders the amount of rent due by him to the landlord. If he does so, no suit will lie against him on the ground of default in the payment of rent. If he does so, no suit will lie against him on the ground of default in the payment of rent. Even if no such payment is made within two months as provided by Section 12(1)(a) the tenant may within one month from the service of the writ of summons deposit the amount in Court or pay to the landlord the amount due by him till then and continue to pay or deposit 'month by month' the rent accruing due. Even if he does not pay the amount within one month he may on an application, made by him ask for extension of time, and if the Court grants the extension the amount may be paid by him within such extended time. In such a case, by virtue of sub-section (5) of Section 13, on the ground of default in payment of rent, the Court will not proceed to pass a decree in ejectment. But, it is clear that under sub-section (1) of Section 13 the normal period during which the amount has to be paid to the landlord or deposited in Court is one month from the service of the writ of summons. If the tenant pays the amount of rent in appears within one month he is immune from liability to be evicted for default in that behalf. If, however, he does not pay the amount or deposit it in Court, any subsequent payment made by him will come to his aid only if one an application made by him the Court extends the time." 12. The Supreme Court in case of Shyamcharan Sharma Vs. Dharamdas, (1980) 2 SCC 151 , has held that Court has jurisdiction to extend time for deposit of payment of monthly rent following due after the filing of suit and held as under:- "4. .....Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in Section 13(1) as the consequence of non-payment was proposed to be dealt with by a separate sub-section, namely Section 13(6). .....Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in Section 13(1) as the consequence of non-payment was proposed to be dealt with by a separate sub-section, namely Section 13(6). Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would, therefore, be no question of striking out the defence and, so, there would be no question of Section 13(6) covering the situation." 13. The Supreme Court in case of R.C. Tamarkar Vs. Nidhi Lekha, 2002 JLJ (SC) 69, has held that mere depositing the rent without filing an application for extension of time for payment of all the arrears of rent due, tenant is not entitled to avoid decree for eviction under Section 12(1)(a) of the Act:- "8. Reading both the sub-sections together, we are of the opinion that the benefit of sub-section (5) shall be available to a tenant provided he tenders the arrears of rent or deposit it in the Court within one month of service of writ of summons or notice of appeal or any other proceeding or within one month of the institution of the appeal or any other proceeding by the tenant or within such further time as the Court may on an application made to it allow in this behalf. In the case in hand, the tenant did not deposit the arrears of rent either prior to filing of the suit or during its pendency before the Trial Court. In the First Appellate Court rent was deposited and it was not clear whether he continued to deposit the rent as per sub-section (1) of Section 13. The First Appellate Court set aside the findings of defaulter on the ground that the rent was deposited in the Appellate Court. The High Court was of opinion that after the Trial Court passed the decree holding that the tenant was in the arrears of rent, mere depositing the amount without filing an application for extension of time for payment of all the arrears of rent due, the finding of the Appellate Court that tenant was not a defaulter is not sustainable. The High Court was of opinion that after the Trial Court passed the decree holding that the tenant was in the arrears of rent, mere depositing the amount without filing an application for extension of time for payment of all the arrears of rent due, the finding of the Appellate Court that tenant was not a defaulter is not sustainable. The High Court further recorded that the First Appellate Court did not give any finding that entire amount of arrears of rent was paid. This finding of the High Court cannot be faulted in view of clear provision of sub-section (1) of Section 13 and, therefore, tenant is not entitled to get protection under sub-section (5)." 14. The Supreme Court in case of Sobhagyamal and another Vs. Gopal Das Nikhra, (2008) 3 SCC 788 , has held as under:- "9. Sub-section (3) of Section 12 puts a caveat on the right of the landlord to get ejectment on the ground of arrears of rent if the tenant makes payment or deposit as required by Section 13. However, by virtue of the proviso to sub-section (3), the benefit given to the tenant, on compliance of the payment of rent as provided under Section 13, would be available to him only once in respect of that accommodation, but on default in the payment of rent in respect of same accommodation for three consecutive months he would not be entitled for protection by depositing the rent as provided under Section 13 in the subsequent proceedings initiated by the landlord for ejectment of the tenant on the ground of arrears of rent. 10. Section 13 of the Act requires that the tenant shall within one month of the service of writ of summons or notice of appeal or of any other proceeding deposit the rent when the proceedings are initiated by the landlord on any of the grounds referred to in Section 12 or within one month of institution of appeal or any other proceeding when taken by the tenant against any decree or order for his eviction. The period of one month given to the tenant for depositing the rent from the date of the summons or the notice of appeal or of any other proceeding could be extended by the Court on an application made to it. The period of one month given to the tenant for depositing the rent from the date of the summons or the notice of appeal or of any other proceeding could be extended by the Court on an application made to it. The rent which is required to be deposited under the section can be in the Court or it may be made over to the landlord. The section further requires that after the deposit of the arrears of rent the tenant shall continue to make deposit or pay month by month by 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be. Sub-section (5) of Section 13 provides that if the tenant makes deposit or payment as required by sub-section (1) or sub-section (2) no decree or order shall be made by the Court for recovery of possession on the ground of default in the payment of rent by the tenant. Sub-section (6) gives an option to the landlord if the tenant does not deposit the rent or pay it to the landlord as required under Section 13 to move an application for the defence against eviction to be struck out. Sub-section (5) of Section 13 has no application in a case when the ejectment is not sought by the landlord on the ground of arrears of rent, but the suit is instituted by the landlord on any other ground(s) of Section 12 of the Act. Striking out of the defence of the tenant on an application moved by the landlord, is a provision applicable in the suit for ejectment on any of the grounds mentioned under Section 12 inclusive of under Section 12(1)(a) of the Act, whereas sub-section (5) of Section 13 would apply only when the suit is instituted for ejectment on the ground of arrears of rent under Section 12(1)(a) of the Act." 15. Very recently, the Supreme Court in case of Shivshankar Gurgar Vs. Very recently, the Supreme Court in case of Shivshankar Gurgar Vs. Dilip, 2014 (1) SCALE 52, has held that sub-section (5) of Section 13 only protects the defaulting tenant in possession in the event of his complying with the requirement of Section 13(1) or (2) only in those cases where the eviction is sought only on the ground of arrears of rent falling under Section 12(1)(a) of the Act of 1961 and held as under:-- "24. A reading of Section 13, in our view clearly indicates that the payment or the deposit of rent into the Court by the judgment debtor (tenant) is contemplated only during the pendency of the suit for eviction or an appeal (by the tenant) against a decree or order of eviction. Section 13 has no application to the execution proceedings of a decree for eviction. 25. The language of Section 13(1) is very clear and explicit in this regard. We fail to understand as to how the Court could read into Section 13, a possibility of enabling the judgment debtor (tenant) to protect his possession by making the payment during the execution proceedings in spite of the fact that he had already been adjudged to be in default of payment of the rent to the landlord. Such an interpretation of Section 13 would be wholly destructive of Section 12(1)(a). Therefore, not only the language of Section 13(1), but also an irreconcilable inconsistency that would arise between Section 12(1)(a) and Section 13(1) if the interpretation placed by the Executing Court is accepted-in our view is sufficient to hold that the Executing Court's interpretation of Section 13(1) is unsustainable." 16. Therefore, not only the language of Section 13(1), but also an irreconcilable inconsistency that would arise between Section 12(1)(a) and Section 13(1) if the interpretation placed by the Executing Court is accepted-in our view is sufficient to hold that the Executing Court's interpretation of Section 13(1) is unsustainable." 16. Thus, in the light of the aforesaid statutory provisions and the principle laid down by Their Lordships of Supreme Court in the above referred cases, contention of defendant/tenant is examined, it would appear that the defendant did not deposit arrears of rent within two months from the date of receipt of notice and, thereafter, after receiving the summons appeared before the Trial Court on 10-3-2011, but this time also, he did not deposit the rent within stipulated time from the receipt of the summons, thereafter, when the Trial Court, on an application filed by the plaintiff for striking out defence, passed an peremptory order in the application under Section 13(6) and directed either to deposit arrears of rent up to 25-11-2011 or to suffer the consequences, i.e., his defence would struck off automatically, then only he deposited the arrears of rent on 15-11-2011. 17. The question for consideration would be whether such deposit made by the defendant/tenant, he can avoid decree under Section 12(1)(a) of the Act of 1961. 18. In the considered opinion of this Court, arrears of rent deposited by the defendant/tenant in compliance of peremptory order passed by the Trial Court on an application filed by the plaintiff/landlord for striking out of the defence cannot be said to the compliance of Section 13(1) of the Act of 1961 read with Section 12(3) of the Act of 1961 unless in duly constituted application filed by the tenant for extension of time, Court extends the time for depositing the arrears of rent, the defendant/tenant cannot avoid eviction under Section 12(1)(a) of the Act. 19. 19. The Supreme Court in case of Sobhagyamal and another (supra), has clearly held that striking out of the defence of the tenant is a provision applicable in suit for ejectment on any of the grounds mentioned under Section 12(1)(a) of the Act whereas Section 13(5) of the Act of 1961 would apply only when the suit is instituted for ejectment on the ground of arrears of rent under Section 12(1) of the Act and, thus, in the considered opinion of this Court, the Trial Court as well as First Appellate Court have absolutely and perfectly justified in decreeing the suit in plaintiffs favour under Section 12(1)(a) of the Act, 1961. 20. For the reasons mentioned hereinabove, the appeal is held to be devoid of merit is liable to be and is hereby dismissed. No order as to costs. Appeal dismissed.