Rajasthan High Court - Jaipur
Taruna Gangwal (Smt.) vs Radhey Shyam Meratwal on 27 May, 2003
Equivalent citations: RLW2004(1)RAJ127, 2003(3)WLC766
JUDGMENT Harbans Lal, J.
1. This Civil Misc. Appeal under Section 22 of the Rajasthan Premises (Control of Rent & Eviction) Act 1950 (in short 'the Act') has been preferred by defendant (appellant herein) against the order dated 7.4.1999 of the learned Additional District Judge No. 6 Jaipur City, Jaipur, Striking out her defence against eviction under Section 13 (5) of the Act.
2. Briefly stated, the relevant facts are that plaintiff instituted a civil suit in the court below against defendant for recovery of arrears of rent and eviction on the ground of default in payment of rent, personal bonafide necessity, nuisance and sub letting with the averment that the property described in para No. 1 of the plaint was let-out to her w.e.f. 1.5.1990 on a monthly rent of Rs. 3200/- per month which was enhanced to Rs. 3680/- per month from 1.5.1993. She failed to make payment of rent w.e.f. 1.11.1994 to 30.4.1995. In her written statement she admitted the tenancy. But pleaded that the rent was deposited through cheques and the details of such deposit were also given therein. She also admitted that rent from July, 1995 to October 1995 was due, but pleaded that a sum of Rs. 9600/- was deposited by her with the plaintiff as security which should have been adjusted against the outstanding rent.
3. As the suit was filed on the ground of default under Section 13(1)(a) of the Act, the trial court on 23.5.96 determined the provisional rent after hearing the parties and on basis of materials on record. The provisional rent so determined was deposited by her but she failed to deposit rent falling due form month to month within the prescribed time. So the plaintiff moved an application under Section 13(5) of the Act for striking out her defence against eviction. The appellant defendant resisted the application by filling reply thereto and giving details of the payment of rent. She also pleaded that the rent was deposited through cheques and she was not responsible for the late collection of cheques by the plaintiff's Bank. She further stated that her Accountant Bhagchand was responsible for late payment of rent inspite of her clear instructions to deposit the rent in time. She, therefore, prayed that the delay in the deposit of rent may be condoned. According to her, amount of Rs. 9600/- deposited by her with the plaintiff as security may be adjusted against the outstanding rent and on doing so there would be no default in the payment of rent by her.
4. The trial court after hearing the learned counsel for the parties on this application and considering in detail the submission made at the bar held that the appellant defendant and committed default in the payment of rent for the month of April, May and August 1997 which could not be condoned. The application of the plaintiff was therefore, allowed and her defence against eviction was struck out vide impugned order.
5. Mr. A.K. Bhandari, learned counsel for the appellant has strenuously argued that the trial court has not considered the matter in the right perspective. In order to strike out defence against eviction, the conduct of the defendant must be contumacious which means willfull, stubborn and disobedient. According to him, the delay in payment of rent for most of the months was for a period of less than 15 days which could be and ought to have been condoned. He has also contended that if the security amount deposited with the plaintiff is adjusted against the rent due for a months no default survives because the rent deposited late may be treated to be advance rent for the subsequent months Relying upon Roop Narain v. Murti Mandir Sita Ramji (1), J.K. Motors and Ors. v. Bhagwati Narain (2) and Jamna Lal v. Kanhaiya Lal (3), he has contended that delay in depositing of rent should be condoned liberally. According to him, rent for the months of April, 1997 and August, 1997 was deposited with the delay of only 6 days and 1 day respectively. Which could be and ought to have been condoned. In this regard, he has argued on the strength of Jamna Lal v. Kanhaiya Lal (supra) that no application for condonation of delay was necessary. The learned counsel has then argued that the security amount of Rs. 9600/- which was lying deposited with the plaintiff could be and ought to have been adjusted against the rent for the month of May 1997. In this regard, he has placed reliance upon Mohammed Salimuddin v. Misri Lal and Ors. (4), Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwalla (5), K. Narasimaha Rao v. T.M. Nasimuddin Ahmed (6), Modem Hotel, Gudur represented by M.N. Narayan v. K. Radhakrishaiah and Ors. (7). In the end he has argued that even if the delay in deposit of rent is not condoned, it is not necessary to strike out the defence of the tenant against eviction as held in Jagan Nath v. Heera Chand (8). The delay could be condoned on the basis of the reply of the application under Section 13 (5) of the Act. However the appellant has filed an application for condonation of delay before this Court.
6. Mr. R.K. Agarwal, learned counsel for the respondent-plaintiff has oppose the contentions of the learned counsel for the appellant with equal vehemence. He has placed on record a certified copy of the order dated 23.5.1996 and a copy f the rent note executed between the parties. He has drawn my attention to the condition agreed between the parties in the rent note where-under the amount of Rs. 9600/- was to be kept deposited with the plaintiff as security which was to be refunded at the time of handing over of the possession of the suit premises. It was further specifically provided that the aforesaid amount was not to be adjusted against the rent falling due during the tenancy. According to him, the aforesaid amount was not a fine, premium of advance, but was a security for the proper maintenance of the rented premises. He has further argued that the prayer for adjustment of aforesaid security amount against the outstanding rent was rejected by the trial court taking into consideration the condition mentioned in the rent note. The said finding of the court below was not challenged and has therefore, become final between the parties. It therefore, operates as resjudicata as has been held in the case of Satyadhyan v. Smt. Deorajin Debi (9).
7. Learned counsel for the respondent has then argued that the Hon'ble Apex Court has considered the cases reported in Mohammed Salimuddin v. Misri Lal (supra), Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwalla (supra), in the case of Bhoja @ Bhoja Ram Gupta v. Ramesh Agarwala and Ors. (10), and has held that there could not be any automatic adjustment. In the case Jagan Nath v. Heera Chand (supra), there was solitary default whereas in the instant case, the defendant has committed regular defaults in the payment of monthly rent after provisional determination of rent. The application for condonation of delay filed in this Court has also been strongly opposed by filing a reply there to. It has been argued that the defendant being the master of her Accountant Bhagchand could not be permitted to say that she was not responsible for the late payment of the rent, it has also been argued that delay of 1 year 2 months and 2 days in the deposit of rent for the month of May, 1997 could not be condoned under Section 5 of the Limitation Act 1963 as has been held by the Hon'ble Apex Court in Naziruddin and Ors. v. Sita Ram (11). He has, therefore, urged that this application for condonation of delay in depositing the rent for the month of April 97, May 97 & August 97 may be dismissed.
8. I have given may anxious and thoughtful consideration to the rival submissions made at the bar and have also gone through record as well as cited authorities.
9. It cannot be disputed and is rather an admitted fact that the appellant has not deposited the rent for the months of April 97 May 1997 and August 1997 within the prescribed time. The present is not a case of stray default in timely payment of rent, and her conduct with regard to deposit of rent has been contumacious.
10. Sub-section 4 of Section 13 of the Act provides that the tenant shall deposit in court or pay to the land-lord the amount determined by the court under Sub-section 3 within 15 days from the date of such determination or within such further time, not exceeding 3 months, as may be extended by the court. The tenant shall also continue to deposit or pay to the land lord month by month the monthly rent subsequent to the period upto which determination has been made by 15th of each succeeding month or within such further time not exceeding 15 days as may be extended by the court at the monthly rate at which the rent was determined by the court under subsection 3. She did not make any application for extension of time for the deposit/payment of rent before such payment or deposit. Her explanation for delayed payment is that her Accountant Bhagchand did so despite instructions to deposit rent in time, but the same is not satisfactory, convincing and reasonably believable. Inspite of this, the court below has liberally condoned delay in the payment of rent for several months for which the application for condonation was made. But the delay in the payment/deposit of rent for the month of April 97 & August 97 has not bee condoned because no application for condonation for the same was made before the trial court, The application for condonation of aforesaid delay filed in this court also cannot be accepted because the grounds mentioned in the application are obviously not satisfactory, convincing, sufficient and tenable.
11. So far as the delay of 1 year 2 months and 2 days in the deposit of rent for the months of May, 97 which has been deposited on 17.8.1998 is not condonable under Section 5 of the Limitation Act 1963 as has been laid down by he Hon'ble Apex Court in the case of Naziruddin and Ors. v. Sita Ram (supra), according to which Section 5 of the Limitation Act 1969 has no application to the Act. The court can condone default only when the statute confers such powers on the court and not otherwise. As has been indicated above, Section 13 (4) of the Act provides for extension of time for 15 days only for the deposit of monthly rent after the determination of the provisional rent. The application for condonation of aforesaid delay filed in this court also cannot be accepted because the ground mentioned in the application are obviously not satisfactory, convincing, sufficient and tenable. The application for condonation of delay in the deposit/payment of rent for the months of April 97, May 97 and August 97 therefore, deserves to be and is hereby rejected. The court below, has therefore, rightly refused to condone the delay in payment/deposit of monthly rent,
12. So far as the contention with regard to the adjustment of security amount is concerned, the same was admittedly raised before the court below at the time of determination of the provisional rent and the same was rejected. The appellant defendant having not challenged the said finding, the same has become final between the parties and operates as resjudicata as has been held in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. (supra), wherein it has been held as under:-
"The principle of resjudicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter whether on a question of fact or a question of law- has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again, this principle of resjudicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."
The principle of res judicata applied also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings."
13. So in the first place, plea cannot be permitted to be raised again.
14. Be that as it may, the Hon'ble Apex court after considering the cases of Mohammed Salimuddin v. Misri Lal (supra) and Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwala (supra), in the case of Bhoja @ Bhoja Ram Gupta v. Ramesh-war Agarwala and Ors. (supra), has clearly held that there cannot be any "automatic adjustment" of rent paid in excess or in advance against the rent due. Hon'ble Apex Court has also distinguished the aforesaid cases on facts. In those cases, there was an agreement between the parties for adjustment of the advance rent against the rent falling due subsequently, whereas in the instant case, there is a specific agreement to the contrary that the amount of security deposited by the plaintiff shall not be adjusted against the rent falling due during the tenancy and the same would be refundable at the time of handing over the possession of the rented premises. The Hon'ble Apex Court has relied upon the case of Budhwanti v. Gulab Chand Prasad (12), wherein the Full Bench decision of the Patna High Court has been approved by holding that there is no "automatic adjustment" of excess or advance rent against rent falling due subsequently. In this regard a judgment of the Madras High Court in Nune Panduranga Rao v. Divvala Gopala Rao (13), has also been approved. The Hon'ble Apex Court has observed as under: -
"We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of 'automatic adjustment' and hold that a tenant cannot save himself from the consequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid consequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the notice to quit and even in the written statement by way of set-off within the period of limitation and by following the procedure for claiming such a set-off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but he cannot claim 'automatic adjustment.'
15. The of Modern Hotel, Gudur, represented by M.N. Narayanan v. K. Radhkrishnaiah and Ors. (supra) is also of little avail to the appellant because it deals with the provisions of Andhra Pradesh Building Lease & Eviction Control Act 1960, the provisions of which Act are substantially different from the provisions of our Act. The provisions of our Act are para-materia with the provisions of the Bihar Building Lease, Rent and Eviction Control Act 1947 and Tamil Nadu Building (lease & Rent Control) Act, because as in the aforesaid Acts no consequence is provided in our Act with regard to taking of advance rent in violation of the provisions of the Act, whereas consequences of this are given in the aforesaid Acts.
16. In view of all the foregoing reasons, this appeal deserves to be and is hereby dismissed.