Ladulal vs Madan Lal and Others

Dr. Vineet Kothari, J.—The present second appeal has been filed by the plaintiff-landlord in this Court on 24/1/2001 being aggrieved by the reversal of the eviction decree by the first appellate court allowing the defendant-tenant''s appeal No. 30/2000 - Madan Lal vs. Ladulal vide order dated 23/10/2000.

The learned trial court had decreed the eviction suit No. 103/78 (43/83) Ladu Lal s/o. Hari Ram vs. Madan Lal S/o. Barda Ji Gaur in respect of the suit shop which was given on rent to the defendant initially at the rate of Rs. 60/- p.m. The eviction was sought on the ground of default in payment of rent and bona fide need of the suit shop for the landlord. The defendant was carrying on the business of selling ''Paan'' in the said suit shop. Issue No. 5 relating to bona fide need of the landlord was decided against him by the learned trial court on the basis of provisions of Section 14(3) of the Rajasthan Rent Control Act, which did not permit eviction decree in respect of property let out for commercial purposes within 5 years of the start of tenancy. The relevant findings are quoted below for ready reference:-

The issue Nos. 3A and 6 relating to default in payment of rent and arrears of rent were decided in favour of the plaintiff in the following manner:-

And, thus, the eviction decree was granted in favour of the plaintiff. The operative portion of the order dated 8/8/1995 of the trial court is also quoted below for ready reference:-

The first appellate court of learned Addl. District Judge, Gulabpura (Bhilwara), however, allowed the appeal of the defendant tenant and while confirming the findings on issue No. 5 of the learned trial court that no suit could be filed for the bona fide need of the landlord within 5 years of the tenancy, reversed the findings on issue Nos. 3A of the learned trial court and found that since the continuous default in payment of rent for a period of 6 months was not proved by the plaintiff, therefore, the eviction decree could not have been given by the learned trial court. The relevant observations of the first appellate court are quoted below for ready reference:-

"Under Section 13(1)(a), the word ''default'' has not been used. Language of Section as such "that the tenant has neither paid nor tendered the amount of rent due from him for six months", the words used in the original Section is paid or tendered.

Hon''ble Rajasthan High Court in 1988 (2) WLN page 223 while discussing the provisions of Section 13(1)(a), 3(3)(4), Section 19 and 19(d), held that tenant remit rent by money order and landlord does not accept the rent, the tenant has option to deposit rent in Court or remit by money order. When the tenant has remitted the rental amount by money order to the landlord, he has committed no defaults and the decree for eviction cannot be passed on the basis of such default.

It is an established fact that the tenant has remitted the rent by money order which has been refused by the landlord. It is not a must for the tenant to deposit the rent in court as he has an option to remit or deposit the rent in any of the methods specified in sub-section 3.

As mentioned above the tenant has sent the rent by money order for various months, so he cannot be said to have committed default or that he has neither paid nor tendered the amount of rent from him for six months.

The tenant appellant has done his duty of sending the rent by money order and if the landlord did not accept the same but refuse the money orders, why the poor tenant should suffer.

On the basis of above discussions, it is crystal clear that the appellant has not committed any default in paying the rent due from him for a period of six months. This issue is decided against the plaintiff respondent, and in favour of the appellant.

Order

The judgment and decree of the learned Civil Judge (Senior Division) Shahpura dated 8.8.95 is hereby set aside. This appeal is accepted. The suit filed by Shri Ladulal is dismissed. No order for cost. Rs. 360/- of rent as per issue No. 5 judgment the defendant will deposit in lower court which the plaintiff is entitle to withdraw.

Sd/- (B.P. Goswami) Addl. District Judge, Gulapura camp Shahpura"

Being aggrieved of the same, the plaintiff landlord has filed the present second appeal, which was admitted by the coordinate bench of this Court on 14.2.2003 and the following substantial question of law was framed:-

"When the tenant challenged the order of striking off the defence in appeal and he withdrew the appeal without liberty to raise the questions in main suit, whether such a question can be raised in regular appeal?" 7. Learned counsel for the appellant-plaintiff, Mr. K.C. Samdariya relying upon the judgment of Hon''ble Supreme Court in the case of Shiv Dutt Jadiya Vs. Ganga Devi, and the judgment of this Court in the case of Krishna Gopal vs. Ramchandra and Ors. - 2006 (4) RLW 2723 submitted that the tenant had committed a default for a period of more than six months and even during the pendency of the appeal before first appellate court and this court also the tenant has continuously defaulted in payment of rent and, therefore, in view of the judgment of this Court in the case of Bulaki Dass Vs. Ram Swaroop, following the Supreme Court judgments, the clear position of law is that delay in the payment of rent after the defence is struck off under Section 13(5) of the Act even during the pendency of the appeal entitles the landlord to get the eviction decree and, therefore, the substantial question of law framed by this Court deserves to be answered in favour of the landlord and the eviction decree deserves to be given.

On the other hand, learned counsel appearing for the defendant-tenant, Mr. Ravi Bhansali and Mr. Dhanesh Saraswat relying upon the decisions of this Court in the case of Rishabh Chand vs. Veer Chand Jain - 1989 (1) RLR 567 and Ramesh Chand Pandey and Anr. vs. Babulal and Ors. - 1995 (3) WLC (Raj.) 570 urged that even if the defence was struck off by the learned trial court of the defendant-tenant, the burden of proof was on the plaintiff landlord to show that there is default under Section 13(1)(a) of the Act in payment of rent for a continuous period of six months as held by this Court in the aforesaid judgments and in the absence of the same the eviction decree has rightly been refused by the first appellate court. However, he admitted that during the pendency of the appeals, rent was paid with delay and even applications were filed before this Court in the present second appeal, namely I.A. No. 10507/10 by the plaintiff that the defendant-tenant has not paid the rent regularly during the pendency of the appeal.

I have heard learned counsels for the parties at length and perused the record of the case and judgments cited at the bar.

It is true that the Division Bench of this Court has held that default under Section 13(1)(a) of the Act has to be for a continuous period of six months in order to furnish a ground for eviction and there is no quarrel with this proposition of law, but here the fact remains that the defence having been struck off under Section 13(5) of the Act and appeal filed against that order having been withdrawn by the defendant-tenant, even thereafter, the defendant-tenant defaulted in payment of rent to the plaintiff-landlord. It is the mandate of Section 13(4) of the Act that even after the determination of rent, the defendant tenant has to regularly and continuously pay the rent to the landlord during the pendency of appeals, as the appeals are the continuation of the suit and if such subsequent defaults also occur, then the result is eviction decree against the defendant tenant. The Hon''ble Supreme Court in the case of Shiv Dutt Jadiya Vs. Ganga Devi, , held as under:-

"A perusal of Section 13 goes to show that failure of the tenant to pay or tender the rent due from him for a period of six months provides a ground for his eviction. On a suit for such relief being instituted by landlord, the tenant must deposit in Court or pay to the landlord the arrears of rent on the first date of hearing or within 15 days from the date of determination by the Court of provisional amount, or within the extended time, and thereafter continue to deposit in Court or pay to the landlord month by month the monthly rent falling due for the subsequent period, as contemplated by subsection (3), and sub-section (4) of Section 13. Failure to make deposit or payment consistently with sub-section (4) may entail defence against eviction being struck out. However, compliance with subsection (4) confers on the tenant an immunity from eviction on the ground specified in Clause (a) of subsection (1). Such immunity is one time benefit given to the tenant. If the tenant commits a default for a second time, having earned once earlier an immunity from eviction within the meaning of subsection (6), then, on a subsequent suit being filed, the tenant cannot once again escape the decree for eviction inspite of compliance with the provisions of sub-section (4). On a suit for eviction being instituted, compliance with sub-section (4) by the tenant as contemplated by Section 13 is in "Court". The legislature has not chosen to use words "Trial Court" in the framing of Section 13. Ordinarily, an appeal is a continuation of suit. The tenant is bound to comply with provisions of sub-section (4) if the claim for eviction on having been denied by the Trial Court is pursued in appeal by the landlord. Inspite of a decree for eviction having been refused by the Trial Court, the Appellate Court may still, in an appeal preferred by the landlord, pass a decree for eviction. On the date of the passing of the decree, the Appellate Court shall have to see, in view of the obligation cast on it by sub-section (6), whether the tenant had made deposit or payment, as required by sub-section (4). Any view to the contrary may result in creating an incongruous or inequitable situation. If it was to be held that on decision by the Trial Court, the obligation of the tenant to pay or tender the rent, in the manner prescribed by sub-section (4) comes to an end, then, although the landlord is still pursuing his claim for eviction before the Appellate Court and the decision of appeal may take its own time, the need on the part of the tenant to pay or tender the rent to the landlord or deposit the same in the Court shall stand dispensed with. We do not think that Section 13 contemplates such a situation. The object behind enacting Section 13 is that pendency of litigation should not be used by tenant as an excuse for suspending his obligation to regularly pay the rent and the landlord should not be compelled to file separate proceedings for recovery of rent falling due during the pendency of already filed eviction proceedings." 11. The Hon''ble Supreme Court in the case of Nasiruddin and Others Vs. Sita Ram Agarwal, has held that delay in such cases cannot be condoned and provisions of Section 5 of the Limitation Act do not apply in such cases. The relevant extract of the said judgment is quoted below for ready reference:-

"Where a landlord filed a suit for eviction of tenant on ground of default in payment of rent, it is obligatory on the court to provisionally determine the amount of rent where for no application is required to be filed. Thereafter, the tenant is required to deposit the amount of rent determined by the Court under sub-section (3) within fifteen days of the date of determination or within such further time not exceeding three months, as may be extended by the Court. The Act as amended in 1976 does not provide either for extension of time or to condone the default in depositing rent within the stipulated period and in absence of such provisions in the Act the Court does not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.

The word ''shall'', which is ordinarily imperative in nature, has been used in sub-section (4) of Section 13. The power of the court has also been limited to the extent that it can extend time for such deposit not exceeding three months and so far as the deposit of monthly rent is concerned, by fifteen days. The court''s power, therefore, is restricted. In case tenant deposits the provisional rent as determined by the Court within stipulated period the tenant is relieved by the eviction decree. Sub-section (4) of S. 13 is mandatory.

It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant. Sub-section (4) of S. 13 itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by this Court. Secondly, the deposit 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 cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act."

This Court in the case of Chand Ratan Swami Vs. Manak Chand reported in 2011 (2) DNJ (Raj.) 798, relying upon a previous decision of this Court in the case of Bulaki Dass Vs. Ram Swaroop, 2009 (2) RLW 1175 : 2009 (1) DNJ (Raj.) 436 held that delay in payment of rent during the pendency of the appeal cannot be condoned and following the Supreme Court decisions in the case of Nasiruddin and Ors. Vs. Sita Ram Agarwal (supra) and in the case of Shiv Dutt Jadiya (supra), the eviction decree was bound to be passed by the learned appellate court below. This Court in the case of Chand Ratan Swami (supra) has held as under:-

"9. Following the said judgment, this Court in Bulaki Dass''s case (supra) held as under: "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 clauses (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 order sent by the defendant which was 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 clauses (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 15.12.1980 and the eviction decree was bound to be passed and was, therefore, rightly passed by the courts below." 13. In view of the aforesaid settled legal position, the substantial question of law framed above has to be answered in favour of the plaintiff and against the defendant-tenant and it is held that even if the question after striking off the defence is allowed to be raised in regular appeal, in view of the second default made in payment of rent by the tenant during the pendency of the appeal, the learned appellate court was not justified in refusing the eviction decree in favour of the plaintiff landlord. The defendant-tenant also failed to pay the rent regularly even during the pendency of present second appeal and, therefore, the present second appeal of the plaintiff deserves to be allowed and the same is accordingly allowed.

The respondent-defendant-tenant shall hand over the peaceful and vacant possession of the suit premises to the appellant-plaintiff within a period of nine months from today i.e. on or before 31st December, 2015 and shall pay mesne profit @ Rs. 2,000/- per month from April, 2015 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 and in case there is any default in payment of mesne profit, the period of nine months 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 plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The respondent-tenant or person in possession shall also further not sub-let, assign or part with the possession of the suit premises 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 the same would be treated as void and such third party will also be bound by this decree. The respondent-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within two months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the appellant-landlord within a period of nine months 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. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.