Gomad Ram and Others vs Ganga Dutt

Dr. Vineet Kothari, J.—1. The present second appeal under Section 100 CPC has been filed by the plaintiff-appellant-landlord against the judgment and decree dated 03.03.2001 passed by the learned appellate court of Additional District Judge No. 2, Bikaner in Appeal Decree No. 33/99 - LRs. of Gomadram & Ors. v. LRs. of Gangadutt, affirming the judgment and decree dated 22.01.1985 passed by the learned trial court of Munsif & Judicial Magistrate, First Class, Nokha (Bikaner) in Civil Original Suit No. 50/80 - Shri Gomadram & Ors. v. Gangadutt, dismissing the suit for eviction filed by the plaintiff-appellant-landlord in respect of the suit shop in question situated at Nokha, Bikaner.

The present eviction Suit No. 50/80 - Shri Gomadram & Ors. v. Gangadutt about the suit shop in question situated at Nokha, is the second round of litigation between the landlord and tenant. The present suit was filed on the ground of second default committed by the defendant-tenant in payment of rent. The first round of litigation initiated by the Civil Suit No. 2/74 - Gomad Ram v. Ganga Dutt upon two rounds of remand is still subject matter of S.B. Civil Misc. Appeal No. 679/2001 - Shri Prakash Ranga v. LRs. of Gomad Ram, which is still pending in this Court is also being disposed of by this judgment.

The present second suit (Civil Original Suit No. 50/80 - Shri Gomadram & Ors. v. Gangadutt), filed on the ground of second default committed by the defendant-tenant, came to be rejected by both the courts below with the following findings:--

"(i) Relevant findings of the learned trial court of Munsif & Judicial Magistrate, First Class, Nokha (Bikaner) in the order dated 22.01.1985 passed in Civil Original Suit No. 50/80 - Shri Gomad Ram & Ors. v. Gangadutt:--

(ii) Relevant findings of the learned appellate court of Additional District Judge No. 2, Bikaner in the order dated 0 3. 0 3.2001 passed in Appeal Decree No. 33/99 - LRs. of Gomad Ram & Ors. v. LRs. of Ganga Dutt:--

While admitting the present second appeal on 28.01.2003, a coordinate Bench of this Court framed the following substantial question of law for consideration by this Court:--

"Whether deposit of rent in the court without there being an order of the court can be said to be the payment envisaged under Section 13(1) of the Act?"

Learned counsel for the plaintiff-appellant, Mr. D.D. Chitlangi urged that the defendant-tenant has not paid any rent for the suit shop in question after 1996. He has also produced before this Court a copy of the information supplied by the concerned trial court of Civil Judge (Junior Division) & Judicial Magistrate, First Class, Nokha (Bikaner) vide ID No. 01 dated 28-07-2011, in which under the Right to Information Act, the concerned court has disclosed that after 01.02.1996, no rent with respect to the said suit premises has been deposited by the defendant-tenant. However, upto 31.01.1996, monthly rent @ Rs. 27/- was being deposited from January, 1982 till 31.01.1996. He further submitted that in view of the judgment of this Court in Bulaki Dass v. Ram Swaroop, 2009(2) RLW 1175 (Raj.), the eviction decree deserves to be granted in favour of the landlord and against the tenant and the orders of the learned courts below deserve to be set aside.

On the other hand, Mr. J.K. Bhaiya, learned counsel appearing for the defendant-respondent-tenant urged that for the period after 1996 from February, 1996 also, the money orders for the rent @ Rs. 27/- per month were sent to the landlord, however, on account of refusal to receive the said rent, the same could not be paid to the plaintiff-landlord. He submitted that upon the remand by the first appellate court, against which S.B. Civil Misc. Appeal No. 679/2001 - Shri Prakash Ranga v. LRs. of Gomad Ram is pending in this Court, the eviction on the ground of first default is still pending before the learned trial court. Therefore, he submits that the second suit filed on the basis of the alleged second default should not be filed by the plaintiff, and therefore, rejection of the present suit by both the learned courts below was justified and proper.

Having heard the learned counsels for the parties, this Court is of the considered opinion that the present appeal of the plaintiff-landlord deserves to be allowed and the substantial question of law framed above deserves to be answered in favour of the plaintiff-landlord and against the defendant-tenant.

This Court in Bulaki Dass v. Ram Swaroop, 2009(2) RLW 1175 (Raj.), relying upon the decision of the Hon''ble Supreme Court in Shiv Dutt Jadiya v. Ganga Devi, , (2002) 3 SCC 189 and Nasiruddin v. Sita Ram - , 2003 DNJ (SC) 180, clearly laid down that unless the defendant-tenant deposit continuously the monthly rent as fixed by the court or mutually agreed between the parties, the defendant-tenant is under legal obligation to pay the said rent during the appellate proceedings, if not paid, the same is bound to be paid as second and subsequently multiple defaults on the part of the defendant-tenant and the eviction decree is liable to be passed against him.

The relevant portion of the judgment of this Court in Bulaki Dass v. Ram Swaroop, (supra) is quoted below for ready reference:--

"18. Having heard the learned counsel at length and having gone through the record of the case and the judgments of two Courts below and the judgments cited at Bar, this Court is of the opinion that the Courts below cannot be said to have erred in any manner in passing the eviction decree against the appellant-tenant on the ground of second default. The deposit in the Court of learned Munsif Magistrate without any procedure known to law at all under Section 19A of the Act or otherwise is of no consequence and cannot enure to the benefit of the defendant-tenant. The said deposit, if any, is no deposit and has been rightly treated as not a valid tender of rent by the defendant-tenant by the Courts below. Admittedly, the first deposit itself for the month of June, 1980 was made by the tenant on 17.7.1980 after the suit proceedings terminated on 11.7.1980 with dismissal of the appeal by the first appellate court. Therefore, on 14.7.1980, no proceedings were pending in the Court and, therefore, deposit of rent for the month of June, 1980 in the learned trial Court was not at all a valid tender. Similarly deposits for the month of July, 1980 and August, 1980 were also without any consequence. The present and second suit came to be filed by the plaintiff on 4.2.1981. Though it was required of the learned trial Court to determine the arrears of rent under Section 13(3) of the Act, since it was a suit on the ground of second default, merely because that is not done, the defendant-tenant cannot take any advantage of that situation. After institution of the suit on 4.2.1981, any deposit under Section 19A of the Act was also not permissible as held by this Court in Swaran Devi v. Kailash Chandra (supra). The provisions of Section 19A of the act are meant to be resorted to if the landlord illegally refused to accept the rent from the tenant after following the procedure under Clause (a) and (b) both, as has been laid in the case of Bajrang Lal v. Ramdeo (supra). Nothing of this sort under Clause (b) was followed by the appellant for any of the default months upto January, 1981.

The tenant in order to maintain his tenancy right is allowed to deposit the rent in the Court instead of payment of the same to the landlord only after following the mandatory procedure under Clause (a) and (b) both. In the present case, there is nothing on record to show that the rent at least for the month of June, 1980 to August, 1980 was tendered to the landlord at any point of time, therefore, deposit for these three months cannot be said to be a valid deposit as per provisions of Section 19A of the Act. Similarly, for the month of September, 1980 to November, 1980, the money orders sent by the defendant which were of course refused by the plaintiff landlord for these three months also, there was no deposit of the same by the tenant in the Court under Section 19A of the Act. Thus, for six months from June, 1980 to November, 1980, the second default stood committed by the tenant. The deposit under Section 19A of the Act which came to be made by the defendant - tenant on 10.2.1981 for 5 months (September, 1980 to January, 1981) was not in accordance with law, after institution of present suit on 4.2.1981 and as procedure both under Clause (a) and (b) was not followed by the tenant and, therefore, the said deposit also does not wash away the second default which already stood committed by the defendant - tenant. Admittedly, the law does not permit any leniency and waiver in the case of second default and eviction decree under Section 13(1)(a) of the Act is bound to be passed on commitment of second default in payment of rent. As already discussed above, the second default for the period of six months from June, 1980 to November, 1980 stood committed by the defendant-tenant on 15th December, 1980 and the eviction decree was bound to be passed and was, therefore, rightly passed by the Courts below.

The judgments cited by the learned counsel for the appellant-defendant do not help the case of the appellant in any manner, and they are distinguishable from the facts of the present case, whereas the judgments relied upon by the learned counsel for the plaintiff-respondent fully support the case of the plaintiff-respondent, particularly decision of the Hon''ble Supreme Court in the case of Kuldeep Singh (supra), decision of this Court in the case of Bajrang Lal (supra) and the decision of this Court in the case of Swaran Devi (supra) also support the case of the plaintiff-respondent.

Consequently, this Court is of the opinion that there is no force in the present second appeal filed by the appellant-defendant and the same deserves to be dismissed and the substantial question of law quoted above deserves to be answered against the defendant-tenant and the decree of eviction deserves to be upheld by this Court. Accordingly, this second appeal is dismissed with costs throughout.

The appellant-defendant shall hand over vacant and peaceful possession of the suit premises to the respondents-plaintiffs within a period of two months from today. The appellant shall also pay arrears of rent and mesne profits if any within two months and shall pay further enhanced mesne profit of Rs. 1000/- per month to them with effect from February, 2009 payable every month before 15th of succeeding month till the actual handing over of the vacant and peaceful possession of the suit property to the respondents-landlords. The decree be made accordingly. If the appellant-defendant fails to hand over vacant and peaceful possession of the suit property to the respondent-plaintiff within a period of two months from today as aforesaid or fails to pay mesne profits including the arrears of rent and mesne profit as directed above, the plaintiff-respondent shall not only be entitled to seek execution of the decree in normal course, but the appellant-defendant may also render himself liable for action under the contempt law."

The Hon''ble Supreme Court in the case of Nasiruddin v. Sita Ram (supra) also held as under:--

"41. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so.

In that view of the matter it must be held that in absence of such provisions in the present Act the court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.

Coming to the second question, we are of the view that Sec. 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant u/s. 13(4) of the Act.

It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Sec. 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant.

Section 5 of the Limitation Act reads under:--

"5. Extention of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of O. XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."

On perusal of the said Section it is evident that the question of application of Sec. 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfied the court that he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction o the ground set forth in Cl.(a) of sub-sec.(1) the tenant shall on the first date of hearing or on or before such date, the Court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in Court as determined under sub-sec.(3) from the date of such determination or within such further time not exceeding three months as may be extended by the Court. Thus, sub-section (4) itself provides for limitation of a specified period within which the deposit has to be made, which cannot be exceeding three months as extended by this Court.

The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Sec. 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Sec. 5 cannot be extended where the default takes place in complying with an order under sub-sec.(4) of Sec. 13 of the Act."

In view of the aforesaid settled legal position and the information produced by the learned counsel for the plaintiff-appellant-landlord on record that the defendant-tenant has failed to deposit the monthly rent after 01.02.1996 with the learned trial court, the eviction decree is liable to be passed against the defendant-tenant and the present second appeal of the landlord is bound to be allowed.

Accordingly, the present second appeal of the plaintiff-appellant-landlord is allowed. The substantial question of law framed above also deserves to be answered in favour of the plaintiff-appellant-landlord and the same is accordingly so answered. S.B. Civil Misc. Appeal No. 679/2001 - Shri Prakash Ranga v. LRs. of Gomad Ram also stands disposed of accordingly.

In the circumstances, it is directed that the respondent-defendant-tenant shall hand over the peaceful and vacant possession of the suit property in question to the appellant-plaintiff on or before 31.12.2016 and shall pay mesne profit @ Rs. 5,000/- per month (Rupees Five Thousand only) commencing from the month of January, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the appellant/plaintiff also and in case there is any default in payment of mesne profit, the period of One Year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the appellant/plaintiff within three months from today, otherwise the same will bear interest @9% per annum. The respondent/tenant shall also not sub-let, assign or part with the possession of the suit shop or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void. The defendants-tenants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the appellant-plaintiff within a period of One Year from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. No costs. A copy of this judgment be sent to both the learned Courts below and the parties concerned forthwith.