Hukamchand Kishanlal vs Nathmal

Nigam, J.C.

Hukamchand filed Civil Suit No. 892 of 1947 against Nathmal alias Motilal praying for a decree of ejectment and a decree for Rs. 539/- as arrears of rent as also a sum of Rs. 28/8/- as damages and further damages from the date of suit to the date of vacation of the premises at a rate considered suitable by the court.

The plaintiff came to the court with the allegation that the defendant was a monthly tenant in the portion of the shop described at the foot of the para at Rs. 19/- per month from Kartik Badi 10, S. 2000. That the defendant was in arrears of rent and had sublet the premises without the plaintiff''s permission. The plaintiff had terminated the tenancy by means of a notice dated 20-10-1947. This notice is Ex. 5. That the defendant was asked to vacate the suit premises by Kartik Badi 10, S. 2004 and hand over the possession to the plaintiff with all arrears of rent due unto that date. The suit was contested. The learned Additional Sub Judge who heard the suit held that a sum of Rs. 539/- was due from the defendant and due to non-payment of the rent despite notice, the defendant was liable to ejectment. The defendant had not sub-let the shop. As regards the invalidity of notice the learned Additional Sub-Judge held that the issue had not been pressed at the time of argument. In the event, he decreed the suit for Rs. 539/- with costs, and also allowed future mesne profits at the rate of Rs. 19/- per month on payment of court-fee.

Against that judgment & decree, Nathmal, defendant filed an appeal. This appeal (Appeal No. 92 of 1949) was disposed of by the learned Senior Sub-Judge by his order, dated 8-3-1952. The learned Senior Sub-Judge held that as the notice required the defendant to vacate the premises by Kartik Badi 10, S. 2004, it was defective and invalid and no decree for ejectment could be passed against the tenant. The learned Senior Sub-Judge accepted the Appeal and dismissed the plaintiff�s suit as regards ejectment. He maintained the rest of the decree. Against that judgment and decree, Hukamchand plaintiff has come up in revision. This revision has been converted into a second appeal and in the second appeal, I have heard the learned counsel for the parties.

During the pendency of the appeal, on 8-4-1953 the learned counsel for the appellant filed an application under S. 13(5) of Act 38 of 1952 requesting that the respondent be directed to deposit Rs. 802/8/- due upto 21-3-1953 and also Rs. 19/- from month to month. On 14-4-1353 the respondent was directed to deposit Rs. 550/-. The respondent has committed default in making this deposit. The learned counsel for the appellant urges that in terms of S. 13(5), the defense as to ejectment should be struck off. The learned counsel for the respondent contests this.

In this connection, the first point for my consideration is whether this Court has authority to extend the time for making the deposit. This point has already been decided by my order dated 23-7-1953. I held that a 15 days'' period for payment of arrears of rent is proscribed by the Act and the Court can neither enlarge nor shorten the period.

The learned counsel for the respondent has contended that S. 13(5) does not apply to appeals. The learned counsel refers me to the language of the section and urges that the application under this section may be made ''at any stage'' of the suit for an order on the tenant-defendant to deposit month by month rent at a rate which it was last paid and also the arrears of rent, if any. The suggestion of the learned counsel is that these proceedings can be taken only in the trial court and not after adjudication had been made on the points at issue between the parties. I am unable to agree with the learned counsel. The learned counsel has not cited any authority in support of his contention. I am of opinion that the words ''at any stage of the suit'' include the appellate stage. The word ''suit'' has always been taken to include all appeals arising from the suit.

The next point urged by the learned counsel for the respondent is that even if the defence is struck off, the court has a right to reject the plaint under the provisions of O. 7, R. 11, Civil P.C. The learned counsel urges that where the suit appears by the statement of plaint to be barred by any law, the relief claimed should not be granted. I agree with the learned counsel. The learned counsel has referred me to paragraphs 1 and 4 of the plaint. In para. 1, it is stated that the defendant is a monthly tenant since Kartik Badi 10, S. 2000. Paragraph 4 states that the tenancy of the defendant was terminated and the defendant was required to vacate the suit premises by Kartik Badi 10, S. 2004. The suggestion of the learned counsel is that the defendant was even according to the statement in the plaint, required to vacate the premises not on the last day of the month, but on the first day of the succeeding month and, as such, the plaint should be reject ed, as from this statement in the plaint, that notice appears to be defective. I am unable to see any force in the contention of the learned counsel Khumani Vs. Saktey Lal, & - Ghasi Ram Vs. Chaubey Mitra Sen, may be cited in support of the conclusion that where one extra day has been allowed for vacating the premises, the notice can not be said to be invalid and that the notice must not be interpreted too technically or in a spirit of hair-splitting. Another authority to which I have been referred is - AIR 1952 101 (Nagpur) I am, therefore, unable to agree that the plaint appears, from any statement in it, to be barred by any law, in this case S. 106, T.P. Act.

No other point has been pressed before me.

Accordingly, I accept this second appeal and restore the learned Subordinate Judge''s decree as to ejectment. The decree as to arrears of rent has not been challenged before me. So far as this second appeal is concerned, the parties will bear their own costs. Parties will also bear their own costs in the courts of the learned Senior Subordinate Judge. The costs in the trial court will be as directed.