LRs of Jawari Mal vs Om Prakash

Dr. Vineet Kothari, J.—The present second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellant-plaintiff in a suit for eviction and recovery of rent against the judgment and decree dated 25.07.1997 passed by the learned Additional District Judge No. 3, Jodhpur in Civil Appeal No. 88/1996 "Om Prakash v. Jawari Mal" by which, the learned First Appellant Court had reversed and set aside the judgment and eviction decree dated 05.11.1996 passed by the learned Civil Judge (Junior Division), Jodhpur City, Jodhpur in Civil Original Suit No. 150/1992 "Jawari Mal v. Om Prakash" by which, the learned Trial Court had partly decreed the suit of the plaintiff-Jawari Mal on the ground of default in payment of rent and directed eviction of the defendant-tenant-Om Prakash in respect of suit property, situated at Kapda Bazar, Jodhpur.

The relevant portion of the findings of the learned Trial Court in the impugned judgment and decree dated 05.11.1996 is quoted herein below for ready reference:

Being aggrieved, the defendant-tenant-Om Prakash filed the appeal before the learned First Appellate Court of the Additional District Judge No. 3, Jodhpur, namely, Civil Appeal Decree No. 88/1996 "Om Prakash v. Jawari Mal" which was allowed on 25.07.1997 and the judgment and decree of the learned Trial Court dated 05.11.1996 was reversed, while reversing the findings on the issue relating to the default in payment of rent. The relevant portion of the findings of the learned First Appellate Court in the impugned judgment and decree dated 25.07.1997 is also quoted herein below for ready reference: -

Being aggrieved by the reversal of the Trial Court''s judgment dated 05.11.1996 by the learned First Appellate Court by its judgment dated 25.07.1997, the plaintiff-Jawarimal filed the present second appeal in this Court on 12.09.1994; and, while admitting the present second appeal on 24.09.1997, a coordinate Bench of this Court has framed the following substantial questions of law for consideration by this Court:--

"1. WHETHER in the facts and circumstances of the case the deposit of rent in Court by tenant-defendant without satisfying the conditions laid down in Sec. 19 A (3) (c) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 can be regarded as a valid deposit?

WHETHER deposit of rent made by defendant in Court in Misc. Case No. 167/91 under Sec. 19A of the Act which was later on dismissed in default without issuing any notice to the plaintiff, on account of non-production of receipt and non-appearance of the defendant or his consent could have been considered as a deposit in terms of Sec. 19A (3) (c) of the Act?"

Having heard the learned counsels for the parties at some length and upon perusal of the record of the case, this Court is satisfied that the present second appeal filed on behalf of the appellant-plaintiff-landlord-Jawari Mal, since deceased now represented by his legal representatives against reversal of the findings on the issue of default in payment of rent deserves to be allowed and the substantial questions of law deserve to be answered in favour of the plaintiff-landlord and against the defendant-tenant, therefore, this Court is of the opinion that the eviction decree dated 05.11.1996 granted in the present case in favour of the landlord-plaintiff by the learned Trial Court deserves to be restored, while setting aside the first appellate court''s judgment and decree dated 25.07.1997, which was granted on the ground of default in making the payment of rent by the defendant-tenant, has rightly been granted as per the settled legal position in this regard.

The Hon''ble Supreme Court in the case of Nasiruddin and Others Vs. Sita Ram Agarwal, 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 the case of Bulaki Dass Vs. Ram Swaroop, , following the Hon''ble Supreme Court judgment in the case of Shiv Dutt Jadiya Vs. Ganga Devi, , this Court granted eviction decree upon the second default committed by the tenant in payment of monthly rent during the pendency of the appeal. This Court in the aforesaid case of Bulaki Dass (supra) has held as under:--

"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/s 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/s 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, 198) 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."

Accordingly and in view of the above, the present second appeal filed on behalf of appellant-plaintiff-Jawari Mal, since deceased, now represented by his legal representatives stands allowed and the substantial questions of law, framed and quoted herein above, are answered in favour of the plaintiff-appellants-landlord and against the defendant-respondent tenant because he has not followed the mandatory procedure under Section 19A of the Act and continued to make default in payment of rent during pendency of the appeals.

In the circumstances of the case, it is directed that the respondent-defendant-tenant Om Prakash shall hand over the peaceful and vacant possession of the suit shop to the respondents-plaintiffs on or before 30.06.2017 and shall pay mesne profit @ Rs. 1,500/- per month (Rupees One Thousand Five Hundred per month 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 appellants-plaintiffs-landlord-LR''s of Jawari Mal also and in case there is any default in payment of mesne profit, the period of One & Half Year for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-defendant-tenant Om Prakash shall also clear all the arrears of rent and mesne profit and pay the same to the respondent/plaintiff within three months from today, otherwise the same will bear interest @9% per annum. The respondent- defendant-tenant- Om Prakash 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 respondent-defendant-tenant- Om Prakash 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 appellants-plaintiffs-landlord LR''s of Jawari Mal within a period of One & Half Year from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court.