Vishnu Dayal Katara vs Virendra Kumar Gupta

N.L. Ganguly, J.—This civil Revision u/s 25 of the Provincial Small Causes Court Act by the Defendant tenant. The suit was filed before the Judge, Small Causes Court for recovery of arrears of rent and damages. Admittedly, the monthly rate of rent is Rs. 225 per month and damages which have been claimed is Rs. 250 per month. The factual position in the present revision is not disputed. The learned Counsel for the parties have filed affidavits annexing such document which was necessary for the arguments and the parties'' learned Counsel submitted that it would not be necessary to send for the record to the court below. I proceed to decide the case without summoning the record of the court and on relying the documents filed by the parties.

The house in question was built in 1980 and the Defendant-applicant was inducted as tenant when the house was complete in February, 1981 @ 225 per month. It was pleaded in the plaint that the Rent Control and Eviction Act was not applicable. The landlord sent a notice of demand of arrears of rent dated 28.3.90 which was duly served on the Defendant-applicant. The amount of arrears of rent, as decreed by the court below, is Rs. 24,972. The Plaintiff also claimed Interest @ 12% per annum. The Defendant-applicant has not paid any amount towards the rent or any amount in pursuance of the demand notice. The Defendant-applicant pleaded that there have been contract between the parties and the Defendant had invested Rs. 16,000 towards additional construction and Improvement in the premises in suit. The Defendant on 5.5.90 said to have paid Rs. 1,353 as full and final payment of the entire rent up to 30.4.90.

Learned Counsel for the applicant Sri Santosh Kumar argued two points that the judgment and decree of the court below Is wholly unwarranted and not maintainable as the decree passed by the court below exercising powers under Order XVII, Rule 3,Code of CPC was wholly unwarranted. The learned Counsel" submitted that it was a case in which Order XVII, Rule 2, CPC would have been applicable and in the circumstances, no decree could have been passed as have been passed in the present case. The second argument of the learned Counsel is that the court below has decreed the arrears of rent to tile tune of Rs. 24,972 in all with pendent late and future Interest @ 12% per annum and also held that the Plaintiff is entitled to recover Rs. 250 per month as damages for use and occupation of the house till delivery of possession. The learned Counsel for the applicant Sri Santosh Kumar placed the provision of Order XVII, Rule 3 Code of CPC and laid emphasis on the first part of Rule 3 which is quoted as under:

(3) Court may proceed notwithstanding either party fails to produced evidence, etc. where any party to suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default. -

(a) if the parties are present, proceed to decide the suit forthwith ; or

(b) if the parties are, or any of them is, absent, proceed Under Rule 2.

He submitted that it was mandatory for the court below to proceed to decide the suit forthwith. The emphasis is to decide the suit forthwith. Learned Counsel submitted and it Is also admitted that the date on which the order for proceeding under Order XVII, Rule 3 was passed an adjourned date fixed for recording evidence. Thus, it was a date on which the parties were to lead evidence and the order sheet filed by the learned Counsel for the applicant shows that on the date fixed, the learned Counsel for the Defendant did not come for cross-examination The Defendant was present. The Defendant has stated that his counsel is busy in other cases and will come after some time. The court waited for the counsel. The counsel did not turn up. The case was called repeatedly after interval and finally the court proceeded to decide the case. Evidence has already been recorded. The Defendant-applicant on the mean time had moved the court when the order was passed. Thus, the court passed order for proceeding under Order XVII, Rule 3 Code of Civil Procedure

The learned Counsel for the applicant submits that the Defendant applicant was not present in the court. As such, Order II was applicable and secondly the court had not decided the suit forthwith. For the proposition that the suit should have been decided forthwith, learned Counsel for the applicant Sri Santosh Kumar cited AIR 1957 All 345 Mst. Jaggo v. Kanhaiya Lai and drew attention of the court to para 3 of the said Division Bench Judgment. I have perused the said judgment. It does not show that the court was required to decide and dictate the judgment forthwith on the date they proceeded under Order XVII, Rule 3. The other decision is 1970 ALJ 189. Kesho Singh v. Om Prakash. Learned Counsel drew attention of the court to para 4. The learned Counsel submitted that the Division Bench considered a decision reported in AIR 1953 Nag 223. In this judgment, it has been considered but the Division Bench in para 4 had repelled the submission of the learned Counsel in the said case that the case be decided forthwith. The learned Counsel placed a decision of AIR 1953 Nag 222 Distally Wasanji and Anr. v. Kedamath Onkarmal and Co. where the learned single judge of Nagpur High Court had considered and interpreted the implication of the word, "forthwith". The learned judge had observed in para 6:

As I understand this rule, a court proceeding under this provision must decide the suit ''forthwith'', that is, on the same date, and it cannot adjourn the hearing of the suit to some other date and then purport to decide It under Order XVII, Rule 3.

As already mentioned, this decision was considered by the Division Bench of our court, quoted supra, and the observation of the Nagpur High Court was not accepted. Learned Counsel for the Respondent Sri A.K. Goel cited decision in AIR 1966 All 94 Kurt Lal Rungta v. Smt. Banarst Devi and Ors. In the said Division Bench, two aspects were considered, i.e., about the meaning and interpretation of the word forthwith'' and the decision of 1953 Napier was not accepted. The decisions in M.S. Khalsa Vs. Chiranji Lal and Others, was followed. Thus, there is no scope for argument that "forthwith" means that on the date the court proceeds under Order XV If, Rule 3, Code of CPC has to pass decision and judgment in the matter the same day. The other aspect considered in the decision of 1976 Kuri Lal Rungta (supra) is whether on the date of passing of the order under Order XVII, Rule 3 the Defendant''s physical presence in the court was necessary. From the facts of the present case, it is apparent that the Defendant-applicant was present in the early hours of the day, he had gone to call the counsel and at the relevant time, when the case was called out, the Defendant had slipped away. This Court by the Division Bench has held that it is not necessary that physical presence was necessary, in such circumstances. The Defendant if slips away from the court at the relevant time of the passing of the order, that would not mean that the provision of Order XVII, Rule 3, would become inapplicable. The learned Counsel again cited another decision of AIR 1960 All 615. This authority has been considered in the judgment of 1986. I do not want to repeat the facts and law in the said judgment again. The learned Counsel cited another decision of 1982 1 ARC 691 Kulvir Singh v. Tara Channel. This also deals with the question under Order XV11, Rule 3(2). This judgment also shows that the decision arrived by the learned single Judge in the said case squarely apply to the facts of the present case. After hearing the learned Counsel for the parties, I have no doubt that the judgment of the court below so far invoking the provisions of Order XVII, Rule 3 in the present case can no more be assailed. The proceedings under Order XVII, Rule 3, initiated was perfectly justified and legal, which is affirmed.

The important aspect which deserves consideration in this revision is that whether the court below who was exercising powers under Small Causes Court Act could decree suit for arrears of rent for a period of more than three years, i.e., rent which is barred under provision of the Limitation Act. A perusal of the judgment and decree shows that the amount of arrears of decree is Rs. 24,072 as rent and interest @ 12% per annum thereon and also damages @ Rs. 250 p.m. The learned Counsel for the Respondent is not in a position to submit that the court exercising powers under the Small Causes Court Act could pass a decree for arrears of rent for the period more than three years, i.e. from the date of the notice, three years rent would be decreed and thereafter the mesne profit after the date of the notice till the date of filing of the suit and mesne profit (hereafter till the occupation by the tenant and payment is made. The admitted position is that the rate of rent is Rs. 2,700 per year. The notice dated 28.3.90 was sent and served on the Defendant in which a huge amount was demanded. The Defendant-tenant would be liable to pay arrears of rent for the period which he is responsible under law to pay and decree for the said amount could be passed. No doubt, time barred arrears of rent could have been demanded and if not paid, that may be a ground for treating a person in default. The suit is to be decided on the allegation in the plaint and the plaint allegations cannot exceed beyond the statutory period, i.e., no rent for more than three years could be decreed.

After hearing the learned Counsel for the parties, I am of the view that the judgment and decree of the court below deserve to be set aside with the observation that the court below shall proceed to pass final decree and order in accordance with the observations made above and pass a decree for a period of rent permissible, according to law, Le., three years'' period from the date of notice and manse profit thereafter till the date of filing of the suit and till actual delivery of possession is made. It is further directed that fixing of damages @ Rs. 250 p.m. is not warranted since there was no evidence of actual damages during the period @ 250 p.m. as has been awarded, as damages by the court below. Normally the law is that the rate of rent admissible is awarded as manse profit. The court below shall take this consideration while passing final order.

The revision is partly allowed and the money part of the decree is set aside and the case is remanded to the trial court for decision afresh on this aspect. The court below is directed to pass final orders within a period of three months from the date of filing of a certified copy of this judgment. The court below shall pass final orders. The defence stood struck off and the tenancy already terminated, according to law, the decree for ejectment already parsed shall remain intact. The learned Counsel for the applicant prays that some time be given to the applicant for vacating the premises because it would be difficult for him to get alternative accommodation. Sri A.K. Goyal although objected to this request, but I consider it appropriate in the facts and circumstances of the case that In case the revisionist applicant submits an affidavit and undertaking before the court below within one month from today, that he shall vacate the premises on expiry of six months from today and hand over vacant possession of the accommodation, the decree for ejectment shall not be executed for period of six months. For this period of six months, the revisionist applicant shall deposit in advance within one month the six months rent @ 225 p.m. in the court below. The said amount shall be payable to the Plaintiff-Respondent. In case of default of either of the conditions, the decree shall be liable to be executed.

The revision is partly allowed accordingly.