Mohini Devi vs Kishan Lal

Dr. Vineet Kothari, J.—1. The appellant/defendant/tenant, Smt. Mohini Devi, has preferred this second appeal under Section 100 of CPC, 1908, impugning the judgment and decree dated 09.08.2000 passed by learned first appellate court of learned Additional District Judge No. 2, Bikaner, in Civil First Appeal No. 37/1998 (Smt. Mohini Devi & Anr. Vs. Kishanlal) whereby the learned first appellate court dismissed the first appeal filed by the defendant/tenant and affirmed the judgment and eviction decree dated 13.05.1998 passed by learned Addl. Civil Judge (Jr. Division) No. 2, Bikaner, in Civil Original Suit No. 243/1993 - Kishanlal Vs. Smt. Mohini Devi & Anr., whereby the learned trial court decreed the suit filed by the plaintiff/landlord, Sh. Kishanlal, who is now represented by his legal representatives, for eviction of the defendant/defendant from the suit property, a residential house situated near Kot Gate, Bikaner, on the ground of second default in payment of rent.

The suit for eviction filed by the plaintiff/respondent was decreed by the learned trial court vide judgment and decree dated 13.05.1998 with the following findings:-

The first appeal filed by the defendant/tenant was also dismissed by the learned first appellate court vide judgment and decree dated 09.08.2000 while affirming the eviction decree, with the following findings:-

While admitting the present second appeal, a coordinate bench of this Court vide order dated 16.03.2001, has framed the following substantial questions of law:

(1). Whether the order dated 6.8.91 passed by the trial court in the suit ordering substitution of the legal representative without any prior notice to the proposed substitutes is illegal and the proceedings in the suit thereafter are vitiated?

(2). Whether the learned courts have failed to consider the meaning and effect of the order dated 15.10.94 and in not considering that the deposit on 31.10.94 clearly entitles the appellants to the benefit of Section 13(6) of the Act?

(3). Whether the learned courts have erred in failing to consider the conduct of the plaintiff respondent in protracting the trial of the suit and in failing to consider that the provisions of Section 13(5) of the Act being only directory, deserves not to be restored to in the present case?

(4). Whether the learned courts below have erred in failing to consider that the evidence of the plaintiff was reopened on the cost of Rs. 750/- as a condition precedent and the costs having not been deposited in the court, the evidence of the plaintiff cannot be looked at?

(5). Whether the learned courts have erred in not considering that in the peculiar circumstances of the present case the delay in deposit ought to have been condoned and the application under Section 5, Limitation Act ought to have been allowed?

Mr. Salil Trivedi on behalf of Mr. Sajjan Singh, learned counsel for the appellant/tenant urged that both the courts below have erred in passing the decree on the ground of default by striking out the defence of the appellants and denying benefit of Section 13(6) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (Act of 1950). He further argued that although reasons for the delay occasioned in filing the application u/s 5 of the Limitation Act were sufficiently explained, however, the learned courts below have ignored the same and have proceeded to grant eviction decree in favour of plaintiff/landlord. He further submitted that the learned courts below have also erred in taking on record the legal representatives of late Sh. Bhanwarlal, (appellant herein) without notice to them and even without considering the objections sought to be raised by their counsel in this regard. He further argued that the provisions of Section 13(5) of the Act of 1950 are not mandatory and are only directory and it is only discretionary for the court whether to strike out the defence or not and, therefore, the impugned judgments and decree deserve to be reversed while answering the substantial questions of law framed above. Lastly, he submitted that so far as evidence of the plaintiff is concerned, the same was allowed while imposing cost of Rs. 750/-, which the defendants never accepted and the same has not been deposited in the Court, therefore, the evidence of the plaintiff/landlord would always be deemed to have remained closed and the statements on behalf of plaintiff cannot be read in evidence.

On the other hand, Mr. Govind Suthar, for Mr. Manoj Bhandari, learned counsel for the respondents/plaintiffs relying upon judgment delivered by Hon''ble Apex Court in the case of Nasiruddin vs. Sita Ram reported in , 2003 DNJ SC 180 submits that even a single day''s delay in payment of rent cannot be condoned and here in the instant case, the delay is huge and could not have been condoned and the same has rightly been done by the courts below in the instant case. He further argued that under the Act of 1950 the eviction decree could be granted on any one of the grounds only.

The Hon''ble Supreme Court in the case of Nasiruddin (supra) 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. Extension 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 hat 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."

Learned counsel for the plaintiff/respondents also relied upon judgment of this Court in the case of Bulaki Dass S/o Asha Ram Purohit Vs. Ram Swaroop S/o late Dwarka Dass Rathi, , 2009 (2) WLC 298, in which following the Hon''ble Supreme Court judgment in the case of Shiv Dutt Jadia Vs. Ganga Devi reported in , (2002) 3 SCC 189, 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, 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."

In view of the aforesaid, the present second appeal of the defendant-tenant is found to be devoid of any merit and the same is liable to be dismissed, and while answering the substantial questions of law framed above in favour of the plaintiff-landlord and against the defendant-tenant, the present second appeal of the defendant-appellant-tenant is dismissed.

In the circumstances, it is directed that the appellant/defendant/tenant shall hand over the peaceful and vacant possession of the suit property in question to the respondent-landlord on or before 31.03.2017 and shall pay mesne profit @ Rs. 1,000/- per month commencing from the month of March, 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 respondent-landlord also and in case there is any default in payment of mesne profit, the period for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant-tenant shall also clear all the arrears of rent and mesne profits and pay the same to the plaintiff-landlord within three months from today, otherwise the same will bear interest @9% per annum. The defendant/tenant shall also 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 if it is so done, the same would be treated as void. The defendant-tenant 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 plaintiff-landlord within the stipulated time period i.e. on or before 31.03.2017 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the plaintiff-landlord 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.