Rajasthan High Court - Jaipur
Noratmal vs Smt. Sobhag Kanwar And Ors. on 12 February, 1990
Equivalent citations: 1990WLN(UC)473
JUDGMENT D.L. Mehta, J.
1. This revision petition is directed against the order of the learned Additional Munsif and Judicial Magistrate (East), Ajmer, dated 11.8.89, in the case relating to eviction of a tenant on the ground of default and other grounds under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be called 'the Act').
2. In order to elucidate to controversy it is necessary to narrate some facts.
3. Plaintiff-non petitioners instituted a suit against the defendant-petitioner on the ground of sub-letting and substantial damages. Druing the tendency of the suit and before the amendment of the suit present-petitioner tenant submitted a suit against the present plaintiff for the fixation of the standard rent.
4. After the institution of the suit by the present petitioner Under Section-6 of the Act of 1950, present non- petitioners landlord amended the suit and added one ground that the defendant has committed default in the payment of rent as such, he should be evicted on this ground also.
5. Court below was asked to determine the rent Under Section 13(3) of the Act of 1950.
6. Trial Court determined that the tenant is liable to pay rent at the rate of Rs. 145/-per month Under Section 13(3). However, the final determination of the liability of the tenant is still to be made.
7. Mr. Lodha appearing on behalf of the petitioner tenant, submitted that the trial court had no jurisdiction to determine the rent Under Clause (3) of Section-13. He submits that Section- 7 over-rides the provisions of Section-13 Clause (3) of the Act.
8. The second limb of the argument of Mr. Lodha is that initially, the suit was for eviction on the ground of substantial damages and subletting, as such, the provisions of Clause (3) of Section-13 cannot be invoked.
9. Mr. Karnani appearing on behalf of the non-petitioner- plaintiff submitted that the provisions of Clause (3) of Section-13 are independent of the provisions of Section-7 of the Act of 1950. He further submits that Under Clause (3), the last paid amount is to be determined as a provisional rent, whereas, Under Section-7 it is not necessary that the last paid amount should be determined. Mr. Karnani further submitted that subsequent amendment of the default ground in the suit will not take away the suit for the purview of clause (3) of Section-13.
10. I have heard the rival contentions of both the parties.
11. Tenancy law is a beneficial legislation enacted for the welfare of the depressed tenants. Beneficial legislation should be interpreted for the benefit of those people only for whose benefit it has been enacted and one should not introduce the past heritage of enploitation of tenant by land lord.
12. It will not be out of place here to mention that it is the prime duty of a judge to innovate, renovate or change the rule within the premises of the law. I will like to emphasize the word 'within the premises of law' to make it clear that the Judge will never commit breach of law and every innovation, renovation including the change has to be carried out within the premise of law for the benefit of the society and to meet the needs of the society. Judge cannot shut his eyes. He will have to see the needs of the society, he will have to apply the law looking to the present needs of the society, within the permissible limits of the law. If the law does not specifically or by implication prohibit it to do so. The intention of the legislature, when the law was enacted may have the same relevance, but, what will be the intention of the Legislatur to day will have more relevance in the matter of application of the law. Within with the back grounds I have been asked to interpret the provisions of Section- 7, 8, 9, and 13 of the Act of 1950. Section-7 of the Act reads as under:
Section 7 Fixation of provisional rent-(1) Upon the institution of a suit Under Section-6, the Court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties conceded and shall remain in force till a decree fixing the standard rent therefore is finally made in such suits.
(2) The provisional rent fixed under this Section shall also apply to such arrears of rent as, in the case of a tenant who has instituted within six months from the commencement of the tenancy a suit Under Section 6 on the ground of the rent agreed upon being excessive rate to the period intervening between such commencement and institution.
(3) A suit for the recovery of arrears of rent to which the provisional rent fixed under this section is applicable shall be stayed by the Court upon the payment by the tenant in court of the total amount due to the landlord on the basis of such provisional rent.
(4) Any failure to pay the provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction Under Clause (a) of Sub-section (1) of Section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order Under Sub-section (1) were a decree, of the Court in a suit for periodical payments.
(5) All amounts paid as provisional rent shall be adjusted toward payment of the standard rent finally decreed.
13. Section-8 of the Act. further provides that the tenant is not liable to pay in excess of the standard rent determined by the Court. Section-9 provides that no landlord shall claim receive from his tenant, is consideration of the grant, continuation or renewal of a tenancy or sub-tenancy of premises, amount in excess of which is permissible Under Section-6. Section-13 provides that notwithstanding contained in any law or contract, no Court shall pass any decree or make any order in favour of the landlord effecting the tenant so long as he is ready and willing to pay rent thereof, to the full extent 'liable' by this Act. Clause (3) provides that in a suit for eviction on the ground set forth on ground (a). Under Clause (3) of Section-13 also the rent is determined provisionally. Clause (3) of Section-13 of the Act. reads as under:
In a suit for eviction on the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section, the Court shall, on the first date of hearing or on any other date as the Court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issue, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of determination:
Provided that while determining the amount under this Sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit.
14. Thus, there are two provisions for provisional determination of rent, namely, Under Clause (1) of Section-7 in a suit for fixation of standard rent and secondly, Under Clause (3) of Section 13 in a suit for eviction.
15. Mr. Lodha, learned Counsel for the petitioner, has cited before me the case of Manohcar Das v. Anandi Lal Shanna 1974 RLW 133, in which the the Hon'ble Chief Justice, Shri Beri has held as under:
The question that calls for consideration is that in a case where the tenant punctually and faithfully keeps on depositing the provisional rent fixed Under Section 7, has he to deposit rent also Under Section 13(4) in a suit for eviction? The answer, in my opinion is plainly in the negative. Section 7 clearly commands that that alone shall be the rent which the law shall recognise payable by the tenant to a landlord pending final disposal of the application for fixation of standard rent.
16. From the plain reading of clause 1 of Section 7 read with clause 2 and clause 4 of Section 7, it is clear that Section 7 is having an overriding effect over clause 3 of Section 13 in some matters. Particularly, when the plea of eviction on the ground of defanlt has been raised subsequently in a suit after this suit filed under 7 of the Act of 1950.
17. It will not be out of place here to refer the provisions of clause 2 of Section 7. Clause (2) provides that the provisional rent fixed Under Section 7 shall also aplly to such arrears of rent as in the case of tenant who has instituted within six months from the commencement of the tenancy a suit Under Section 6 on the gound of the rent agreed upon being excessive. Thus, the tenant even after the institution of the suit by the landlord can claim the benefit of Section 7 retrospectively at least for a period of six months. It will not be out of place here to mention that clause 4 of Section 7 further provides that any failure to pay the provisional rent shall render the tenant liable to eviction Under Clause (a) of Sub-section (1) of Section 13 and all sums due from the tenant, as such, the rent shall be recoverable from him if the order Under Sub-section (1) were a decree. Thus, this section further provides that to arrive at a conclusion whether a tenant is a defaulter Under Clause (a) of Section 13, assistance will be taken of the provisional rent determined Under Clause 1 of Section 7.
18. It will not be out of place here to mention that the harmonious construction of clause 3 of Section 13 and clause 1 of Section 7 is necessary. If the Court determines 100 rupees as provisional rent Under Clause 3 of Section 13 and determines Rs. 75/- Under Clause (1) of Section 7, then there will be inconsistency in the provisional determination as there will be two provisional determinations, one, Under Clause 1 of Section 7 and the other, Under Clause 3 of Section 13 of the Act. This can never be the intention of the legislature that there should be two independent modes of determination which may come in conflict with each other and create a problem for the litigants. To put a check on it clause (4) of Section 7 provides that any failure to pay the provisional rent shall render a tenant liable to eviction Under Clause (a) of Section 13. Thus, the rent provisionally determined Under Clause (1) of Section 7 stands on a better footing than the rent determined Under Clause (3) of Section 13.
19. The beneficial legislation should be given an interpretation in favour of the persons of class for whose benefit the legislation has been enacted. The word 'last paid' as used in clause 3 of Section 13 may negative the beneficial legislation which is available to a tenant Under Clause 1 of Section 7 of the Act. For that reason also it is necessary to consider that once a rent is determined Under Clause 1 of Section 7 it will have an over-riding effect on the rent determined Under Clause 1 of Section 7 will be binding on both the parties and will be considered as a rent provisionally determined for the purpose of Clause (a) of Section 13 as provided in clause (4) of Section 7 of the Act.
20. Apart from this, the principles of Section 10 CPC can also be invoked to same entat in such cases. Section 141 of the Code of Civil Procedure provides that the procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. It will not be out of place here to mention that Under Clause (1) of Section 7 there is a provisional determination of standard rent. Under Clause (3) of Section 13 there is provisional determination of rent. Thus, the subject matter is the same, namely, provisional determination of the rent and the parties to the litigation are the same. It will not be proper to allow the proceedings to continue in different courts, in differents suits and in different forms, as it may lead to inconsistent orders of the Court. In the instant case, the proceedings relating eviction Under Clause (a) of Section 13 started subsequent to the filing of the suit Under Section 6, though, the main suit for eviction was instituted earlier. Thus, the proceedings Under Clause (a) of Section 13, for which provisional determination of rent is necessary Under Clause (3) of Section 13, started subsequent to the institution of the suit and, for that purpose, we can say that the principles of Section 10 should be invoked against the non-petitioner as he has added ground of default in the payment of rent subsequent to the institution of the suit Under Section 6 of the Act. However, this will not effect over all considering effect over the provisions of clause (3) of Section 13 and the same cannot be overlooked.
21. Clause (3) of Section 7 of the Act further clarifies the view that the provisions of Section 10 may be applied to a great extent, as it provides that a suit for the recovery of arrears of rent to which the provisional rent is fixed Under Section 7 shall be stayed upon the payment of rent by the tenant in Court of the total amount due to the landlord on the basis of such provisional rent. The word 'such' as used in clause (3) in Section 7 means, the provisional rent determined Under Clause (1) of Section 7 and it has no relevancy with the rent determined provisionally Under Clause (3) of Section 13. For this reason also I am of the view that Section 7 is having over-riding effect on the provisions of Clause 3 of Section 13.
22. It will not be out of place here to mention that principles of Section 10 will be applied only for a limited purpose, if there is a composit suit the suit can proceed and the parties will have to be abide by the provisions of Section 7, if the suit has already been instituted within six months of the institution of the suit for eviction Under Section 13. In case no suit has been instituted, naturally the court determines the rent Under Clause (3) of Section 13 and, there will be no bar. I am of the view that the court below has committed an error of law in passing an order and, that Section 7 will not come into play at this stage.
23. Mr. Karnani has further submitted that there will be no prejudice to the right of the tenant and there will be no substantial loss. The possibility that the tenant may not be able to pay the amount which may be determined Under Clause 3 of Section 13, on the basis of the last paid may become a default, cannot be ruled, out as in that case, the defence will be struck off. Last paid rent does not stand on better footing than the standard rent which is to be paid Under Section 7 and the excess last paid cannot be allowed to be paid in the light of the provisions of Sections 8 and 9.
24. In the result, the revision petition is accented. Court below is directed to determine the provisional rent in a suit which is pending Under Section 6 within a period of six weeks from today. Tenant shall pay the provisional rent as determined Under Clause 1 of Section 7 shall be deemed to be a rent determined Under Clause 7 of Section 13 and it will not be necessary to determine again Under Clause 1 of Section 13 of the Act.
25. Revision petition is disposed off accordingly.
No order as to costs.