Bharat General and Seeds Stores and Others vs Mahendra Singh and Another

N.K. Jain, J.—This is defendants'' second appeal directed against the judgment and decree of learned Addl. Dist. & Sessions Judge No. 2, Jodhpur dt. 6.12.90 whereby he has reversed the judgment and decree passed by the learned Civil Judge cum Adl. Chief Judicial Magistrate No. 2, Jodhpur dt. 4.9.87 in civil suit No. 184/83.

Brief facts which give rise to this appeal are that the plaintiff-respondent Achal Singh now decreased and Mahendra Singh filed a suit on 23.9.82 for eviction from the premises situated in Mohalla Seriyan outside Sojati Gate(mentioned in para 1 of the plaint) against the firm the appellant No. 1 and its four partners with the allegation that the defendant-appellant No. 1 took the shop on rent @ Rs. 45/- per month and also agreed to pay house tax. It was also alleged that earlier the defendant had also not paid rent, a suit No. 35/64 was filed and the appellant had taken the benefit of first default in the payment of rent from January, 1961, which was given to him by the Munsif City, Jodhpur vide its judgment dt. 30.5.85. It was further alleged that again the defendants neither paid nor tendered rent from 4.5.80 till the filing of suit i.e. 23.9.82. The plaintiff had also alleged that the defendant did not pay house tax and prayed for eviction on the ground of default in payment of rent, arrears of rent and personal and bonafide need. The defendants filed their written statement on 21.2.83 and 19.3.83 denying all the allegations. The defendants stated that they never made any default in payment of rent and rather the rent was adjusted in replacement of old three doors by new ones with the consent of the plaintiff. On 16.3.84, as many as seven issues were framed by the learned trial court on the pleadings of the parties. The plaintiff produced P.W. 1 Mahendra Singh and P.W. 2 Achal Singh in support of his case and also produced some documents including written statement and judgment of the earlier suit. The defendants in support of their case produced D.W. 1 Inder singh D.W. 2. Thakurdas and D.W. 3 Banshi lal along with their documents. The plaintiff did not press issues No. 2, 3 and 4. The learned trial court after hearing the parties while dismissing the suit on 4.9.87 decided issue No. 1 in favour of the plaintiff and issues No. 5 and 6 in favour of the defendants. The Appellate Court vide its judgment dt. 6.12.90 while deciding issues No. 5 and 6 in favour of the plaintiff-respondent reversed the judgment of the court below and decreed the suit, however, the finding of the trial court on other issues was maintained. Hence, this second appeal.

Mr. Shishodia, learned Counsel for the appellants has submitted that the courts below have erred in not granting benefit of default as the appellants are still entitled for the benefit of Section 13(3) read with Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act (herein-after referred as "the Act") and should not be evicted on the ground of earlier default. It was also argued that in the alleged suit No. 35/64 the defendant got benefit as the rent was not paid or tendered for two months and now the defendant-tenants are not the same and further by substitution of new provision i.e. Sub-sections (6) of Section 13 of the Act, six months time has been fixed for holding default, so unless there is default of same period i.e. of six months, it cannot be made applicable to the benefit against the default clause as existed prior to 9.6.65. He has placed reliance on Bright Bros. (Pvt.) Ltd. Bombay v. J.K. Sayani AIR 1976 Mad 55, Sohanlal v. Smt. Chav and Ors. 1979 WLN (UC) 369 and Vatan Mal Vs. Kailash Nath, He has further submitted that the finding of the learned first Appellate Court on issue No. 6 is perverse and this Court can set aside the same in second appeal.

Mr. Mehta, learned Counsel for the respondent has submitted that it is not open to the appellant to challenge or agitate this point in this second appeal as he did not file cross-objection before the first Appellate Court and now the concurrent finding of both the courts below cannot be challenged in the second appeal. He has also submitted that the first Appellate Court has arrived at a finding regarding issue No. 6 after considering materia) on record and evidence and no interference is called for.

Mr. Shishodia, learned Counsel for the appellants in rejoinder has submitted that the appellants have not challenged the correctness of the judgment or its decision but the question of interpretation of "such benefit" being a legal question can be raised at any stage as it goes to the root of the case.

The preliminary point raised by Mr. Mehta has some substance as the appellants have not filed cross-objection against the finding of trial court but I consider the same in this second appeal being a legal question.

I have heard learned Counsel for the parties and perused the record as well as the case law and have also gone through the relevant provisions carefully.

The point for determination in the present case is whether the appellants having obtained the benefit of Section 13(1)(a)(old) earlier can still claim advantage of word "such benefit" used in Section 13(6) of the Act ?

In order to appreciate the point raised in this appeal, the relevant provisions of the Act are reproduced as under:

13(1)(a) that the tenant has neither paid nor tendered (the amount of rent due from him for any two months) (old)

The said provision was first of all substituted vide Act No. 12 of 1965 published in Rajasthan Gazette dt. 19.6.65 which reads as under:

(a) The tenant has neither paid nor tendered the amount of rent....

(ii) ...due from him for six months.

The said substituted provision is still in existence.

Sub-sections (3), (4) (5) and (6) of Section 13 of the Act were also substituted by Rajasthan Amending Ordinance 26 of 75 replaced by Act No. 14 of 76. Sub-section(6) of Section 13 reads as under:

(6) lf 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 u/s 13-A in respect of rent of that accommodation for six months.

The Rajasthan Rent Control Act was enacted with a view to provide the remedy both to the tenant and the landlord. It should be interpreted in the harmonious way as remedial statute and not as a statute only to look after the welfare of the tenant, so as to maintain a reasonable balance in the society.

A perusal of the said section shows that tenant is given one chance even if he makes a default in payment of rent but if he deposits rent in court within the prescribed time he can take benefit. If the provisions had not been inserted, the tenant would have been evicted even on his committing first default in the payment of rent, so the legislature with a view to give protection to the tenant by giving him one chance even if he commits a default. In view of this, the legislature has not extended this benefit to the tenants who are habitual defaulter and who have taken this benefit once. Such benefit means any benefit taken once even u/s 13(1)(a)(old) of the Act and, therefore, the argument that the tenant will be deemed to be defaulter only after taking benefit of period of the default for six months has no substance under the facts of the present case and it cannot be inferred that "such benefit" means the earlier benefit should be of six months only. So far as the language of Section 13(6) of the Act is concerned, it is not ambiguous and the court cannot add or substitute anything, therefore, there is no question of interpreting "such benefit" so as to read it as it specifies time limit of six months. Admittedly, the appellant had been held defaulter prior to introduction of Section 13(6) according to the earlier provision and was given benefit which is not in dispute and thus, the finding arrived at that it is a second default of the tenant and he has taken benefit of Section 13(1)(a)(old) of the Act is not entitled to such benefit again. I am also supported with the view taken by this Court in Bhikam Chand v. Jugal Kishore 1979 RLW 137 wherein this Court had an occasion to consider Section 13-A of the Rajasthan Premises (Control of Rent and Eviction) Act, it has been held that the tenant having availed benefit once is not entitled to take such benefit again. In this case, previous suit was compromised and decided in terms of compromise without recording any finding by the court that the tenant had committed any default and has been given benefit of first default.

In Shobhraj v. Bhanwarlal 1974 RLW 251, it has been held that law does not require any finding to the effect that tenant has committed default. If the tenant has taken benefit of the Act, then he is not entitled to any protection under the Act for second default. The only requirement of the law is that the tenant must have taken benefit of the Act in the previous suit. If having obtained such benefit u/s 13-A or under the main Act and he makes second default for six months in respect of the same premises, then the tenant is not entitled to such benefit second time.

Similar view has been expressed in Hanuman Prasad Vs. Gaindi Lal, and in Ramchandra v. Ramesh 1973 WLN 431. Therefore, as discussed above, it is a finding of fact and the High Court will not interfere in the same.

The second limb of argument of Mr. Shishodia, is that by virtue of insertion of Section 13-A by Ordinance of 75 for giving benefit to second defaulter against whom proceedings were pending and scheme of giving benefit was introduced in fresh terms. It is true by insertion of Section 13(A), courts have been restrained from passing any decree in any proceeding pending on the date of commencement of the amending ordinance in favour of landlord for eviction of a tenant on the ground of non-payment of rent if the tenant applied under Clause (b) within thirty days from the date of commencement of the amending Ordinance and pays to the landlord or deposits in court according to the provisions of Section 13-A. It is clear that the legislature has specified a time limit for availing benefit of Section 13-A i.e. for the pending suits for a particular period and it cannot be inferred that the legislature had any intention to extend the benefit of this provision to all the tenants for future litigation and against whom a suit is likely to be filed. Admittedly, the case of the appellant was not pending at that point of time, obviously no application was filed nor it could have been filed and, therefore, the case Vatan Mal v. Kailash Nath (supra) is not applicable. It is true that the object underlying the introduction of Section 13-A is to help the tenants but the court has no jurisdiction to add or substitute something to coverup to the Act or to extend the time limit prescribed for particular days i.e. 30 days as it no where speaks that it will be available to the tenants against whom decree will be passed in future.

So far as the contention that the partners of the tenant firm are not the same, cannot be of any avail to the appellant as the premises is the same.

Mr. Shishodia, learned Counsel for the appellant has half heartedly argued regarding reversing of finding on issue No. 6 is concerned. It is true that the Appellate Court should be slow to reverse the finding arrived at by the trial court but if the finding is based on no material and is perverse, the same can be interfered with by the Appellate Court and it has jurisdiction to appreciate the evidence. After giving my earnest consideration to the finding arrived at by both the courts below regarding issue No. 6 and material available on record, I do not find that the finding arrived at by the Appellate Court in any way perverse. Learned Counsel for the appellant has not been able to show me how the finding is erroneous and perverse. Therefore, it does not call for any interference in this second appeal.

No substantial question of law is involved in this second appeal.

However, Mr. Shishodia submits that reasonable time to vacate the disputed premises may be granted. Mr. Mehta, has no objection if the reasonable time is granted. Since the appellants are doing business in the disputed premises for the last 31 years, it will require some time to get a suitable accommodation. Under the circumstances, I deem it just and proper to grant fifteen months time to the appellant to vacate the suit premises. It is hereby ordered that the appellants will vacate the suit premises within 15 months and they shall hand-over its vacant actual and physical possession to the respondents on or before 31.12.1993, provided they furnish an undertaking before the trial court to this effect within one month from today that they will not part with or transfer the suit premises to any-one-else during the said period. The appellants are further directed to pay or deposit within one month from today all arrears of rent due till date if any, and will continue to pay mesoe profit for use and occupation of suit premises for the subsequent months on or before 15th of each succeeding month according to law. In case they fail to deposit rent for continuous two months, the landlord shall be at liberty to get possession even before the expiry of the said period granted by this Court.

No other point has been passed before me.

In the result, this appeal is dismissed with the above observations. No order as to costs.