Rajasthan High Court - Jaipur
Ratan Lal vs Lr'S Of Heera Lal on 20 February, 2004
Equivalent citations: RLW2004(2)RAJ707, 2004(5)WLC397
Author: B. Prasad
Bench: B. Prasad
JUDGMENT Prasad, J.
1. Heard.
2. The appeal arises out of a decision of a suit instituted by the learned on the basis of second default. In this appeal, in fact, to determine whether any substantial question of law arises in this appeal requires a journey through the facts.
3. Between landlord and tenant, the present appeal was filed in relation to a second suit based on default. The earlier suit was instituted and after giving benefit of first default, the same was dismissed on 25.10.90. The appeal filed in this regard was also dismissed on 21.01.97 and the Court observed that any deposit made under Section 19-A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act of 1950'), until decision to that suit will be counted towards the deposit of rent in that suit. This suit conclusively determined that the tenant had committed first default.
4. Second suit was filed on 7.5.91 between the parties. This suit was dismissed, however, in appeal, the matter was remanded back. After remand, the rent was determined in second suit on 6.8.99 as per the mandate of Section 13(3) of the Act of 1950. Admittedly, no rent was deposited as determined by the order dated 6.8.99. The case of the tenant appellant was that since, he had deposited advance rent in the first suit, therefore, the amount deposited in the first suit should be taken note of in the second suit. It should be held that no default was committed by the tenant. The court considered that in second suit, the rent, as determined, has not been deposited. Therefore, defence against the eviction was struck off. Both the orders i.e. rent determination and striking off of the defence was challenged in appeal un-successfully by the appellant. The decision in suit and in first appeal went against the appellant. Hence, this second appeal.
5. Learned counsel for the appellant asserted that the order of deposit and order of determination of rent was in complete as it has not taken note of the deposit made by the tenant in the first suit and therefore, it was erroneous. It requires to be interfered in second appeal by this Court, so also, the order of striking of the defence because there was a deposit made.
6. Learned counsel for the tenant respondent contested the arguments of the learned counsel for the appellant and stresses that these orders were not challenged before the first appellate court and therefore, the same cannot be challenged in second appeal. More particularly, these orders have not been filed while filing second appeal. It has also not been explained as to why these questions were not raised before the first appellate court. Further, learned counsel for the respondent submitted that the order of determination of rent was by consent and no appeal could have been filed against a consent order under Section 96 CPC. This was the order of appellate court while deciding the validity of the order of determination of rent. This question, without having been challenged in the regular first appeal by the tenant before the learned District Judge, cannot be made the subject matter of challenge in second appeal, more particularly, when the order was by consent.
7. I have considered the rival submissions. The order of determination of rent and order of striking of the defence was not challenged before the regular first appellate court. The memo of first appeal was referred for confirmation. In the prayer, in the appeal, there is no mention of these orders. Copy of these orders have not been filed on the record of this second appeal, therefore, it cannot be considered that any challenge is sustainable at the instance of the learned counsel for the appellant in second appeal against these two orders. It is also noteworthy that there is no prayer in the prayer clause of second appeal against there orders. Once the order of determination of rent is upheld and striking of the defence is also not interfered, then what remains to be seen is whether the appellant can be permitted to urge that the suit could not have been decree without establishing that there was a second default?
8. Learned counsel for the appellant has relied on a case decided by this Court in B.B. Bhalla v. Rameshwar Kishore Bahwar (1), that burden still lies on the plaintiff to show that there was second default committed and since, there is no clear finding of second default and there being deposit made for that period by the appellant in the first suit, there decree could not have been passed.
9. 1 have looked into the merits of the case. The question of deposit made by the appellant in earlier suit will be dealt with hereinafter but as far as the burden to be discharged by the plaintiff is concerned, after the striking off the defence, if the defendant evidence is not look into and evidence of plaintiff is read then, there is a clear assertion that the tenant has not made deposit as required under the law. This fact is even admitted by the defendant that no deposit was made after determination order because he wanted adjustment of earlier deposit. Thus, burden of proving the second default by leading evidence is discharged and it cannot be said that the aforesaid judgment has any application in the facts of this case.
10. The most important aspect of the case is a deposit made by the tenant in the first suit which was decided on 25.10.90. In this suit, as claimed, advance rent was deposited by the tenant. The case of the tenant is that for the period for which default is alleged, he has already made an advance deposit in the Court and therefore, for that period, there cannot be any default and since, there cannot be any default, no decree can be passed. He has relied on a Supreme Court decision in the matter of Shiv Dutt Jadiya v. Ganga Devi (2), and has stated that the deposit made by the tenant in another proceedings should be considered in these proceedings. To decide this question, it would be necessary to go to the relevant part of the legislation. A reading of the provision of Section 13, Sub-section 7 & 8 would throw light into it. Sub-section 7 & 8 of Section 13 of the Act of 1950 reads as under: -
"(7) If any suit referred to in Sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time pass such orders regarding costs or interest, as having regard to the circumstances of the case it deems fit.
(8) In case at the time of decision of the suit.
(a) the court finds that the amount of rent provisionally determined by it under Sub-section (3) and deposited in court or paid to the landlord under Sub-section (4) is less than the amount of rent finally decided as payable by the tenant, the court shall pass a decree for the balance amount against the tenant;
(b) the court finds that the amount determined and deposited or paid as aforesaid in excess of the amount of rent finally decided as payable by the tenant, the court shall in the event of passing a decree for eviction against the tenant on ground other than that set forth in Clause (a) of Sub-section (1), also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction it shall direct in the decree that such excess amount will be adjusted by the landlord against the future rent payable by the tenant.
11. As and when a deposit is made in suit for rent ejectment under Sub-Section 8(b), there is a contingency seen by the legislature that as and when a suit is dismissed, there should be a direction in the decree that excess amount will have to be adjusted by the landlord against the due rent payable by the tenant. Thus, it will be seen that such adjustment has to be provided in decree. A payment in a court cannot be adjusted by the landlord against any due because it is on the orders of the court that the same can be done. When there is a legislative mandate, it is clear that any deposit made will have to be dealt with in accordance with that scheme of Act. In any other proceedings, a deposit made cannot be touched, as the deposit is custodia legis. When a second suit is brought, then Court exercising jurisdiction in the matter of second suit would not be able to look into deposits in another proceedings unless, there is direction as envisaged by Section 13(8)(b) (supra) given in decree of first suit. The money deposited in the court is custodia legis. A deposit which is custodia legis can only be dealt with by the court seized of the matter. At the time, when the suit was dismissed, the Court had not permitted the landlord to adjust that deposit in relation to further rent. That being the position, such deposits would be of no avail to the landlord. He cannot be permitted to even withdraw the money because the court would only permit withdrawal which is permissible in law. Such withdrawal could only be permitted, if there was a direction incorporated in the decree in terms of mandate given in Section 13(8)(b) of the Act of 1950.
12. The right under the Act of 1950 are strict liability rights. Strict liability rights are given to the parties under the Act of 1950. The rights are when conferred by a Statute then, consequence provided in the statutes has to be followed and common law/doctrine of equity will have no application. Even in taxation statutes, right are created by statute and application of common doctrine is not imported to show that equity would come in favour of the assessee. Whatever rights under the Act of 1950 are given to the tenant, it also give rights to the landlord. It has been observed by the Hon'ble Supreme Court in the matter of Nasiruddin and Ors. v. Sita Ram Agarwal (3), to judge the rights of landlord and tenant, two standards cannot be applied. Language of Sub-section 8(b) of Section 13 is clear that the Court will made a provision in the decree. If the Court had no made any provision in the decree about the adjustment of the rent deposited, then in another proceedings that money cannot be touched. Because that money is custodia legis and a Court of competent jurisdiction was seized of it. No other court can handle it. Other Court will have no jurisdiction to interfere in the functioning of that court. That being the position, any advance deposit made in earlier suit having not been provided for in the decree while dismissing the suit cannot be considered or appropriated by any orders in second suit, Under these circumstances, no orders could be passed by the court below for appropriation of that amount. Incidentally, this has not been done also.
13. As has been observed in the preceding paragraphs, in the suit in question, no provision was made in the decree of the first suit about the amount deposited in the first suit. That being the position, the analogy as has been settled by the Hon'ble Supreme Court in Jadiya's case (supra) cannot be pressed into service. The law laid down in Jadiya's case is to the effect that a tenant should not be made to make deposits twice. This proposition inheres in it that the deposit of rent has to be one, which is available to the landlord. In the instant case, the advance deposits made in the earlier suit having not been provided for in the decree, are not available to the landlord. Thus, the deposits loose its significance as far as landlord is concerned. If the tenant on its' own volition ignores to make a proper deposit, then, the mandate of Section 13(1) of the Act of 1950 would not characterise such tenants to be one who is ready and willing to make payment of rent. The money having no been deposited as being able to be assignable to the landlord, cannot be considered to be a deposit of rent and then, the law laid down in Jadiya's case would not govern the facts of this case. Further this may be observed with respect, that import of Sub-section 7 & 8 was not considered by the Hon'ble Supreme Court, as it has no application in that case. In the case, the deposit was in appeal. Fact of consideration of deposit after decision was not there. In this background, the judgment in Jadiya's case may not be of assistance of decide the controversy in question.
14. In a strict liability statute of rent ejectment, the deposits have to be seen in the manner provided under the Act because on 25.10.90, when the suit was dismissed, no orders were made for appropriation of the rent the landlord could not have withdrawn the money because the court had not permitted to appropriate that amount towards the future rent. Even in appeal, no orders were passed for appropriation of the deposits made in the Court. Further, after 21.01.97, when the appeal in relation to the first suit stood decided. These orders were without making an order under Section 13(8)(b). In the second suit, the rent was determined on 6.8.99, After the decision of the first suit, the deposits are said to have been made under Section 19-A of the Act of 1950. Admittedly, for this deposit under Section 19-A, neither there was any notice given to the landlord nor money order was sent. Thus, the deposits made by the tenant cannot be considered to be valid deposit in relation to the provision of Section 10-A of the Act. Thus, from 21st January, 1997, till the rent was determined on 6.8.1999, there was no valid deposit whatsoever by the tenant.
15. On 6.8.99 when the rent was determined, there was no deposit made pursuant to the orders of the Court determining rent. No valid deposit was made for the period 21.01.1997 to 6.8.99. As per Sub-section 4 of Section 13 of the Act of 1950 what is required is that tenant shall deposit in court or pay to the landlord, the amount determined by the court under Sub-section 3 of Section 13. Thus, the requirement of payment is regarding the determined amount has not been made. If for arguments sake, it is considered that there was any advance deposit, then that too fell short of the amount which was due for the period 21.01.1997 to 6.8.1999 and consequence of this kind of non-deposit are provided in Section 13(5) of the Act which says that if a tenant fails to pay any amount referred to in Sub-section 4, he should be liable to have the default of defence be struck off. Admittedly, there was no deposit for this intervening period as ordered. Only an adjustment was asked for. Such adjustment is not permissible in law, therefore, also the tenant was liable to suffer the consequence of non-deposit i.e. striking of the defence.
16. This is admitted case of the appellant that he has not deposited any rent as determined under Section 13(4) of the Act of 1950. The orders of striking of the defence and determination of rent has been held to be not available to be made a subject matter of challenge by the appellant. He has not challenged the same in first appeal and in second appeal also, prayer is not made to set aside the orders. These orders having not been filed along with the appeal, it is clearly a case where defence of the appellant cannot be looked into and if the defence is not looked into then, there is a clear evidence on the part of the landlord which says that tenant has not rendered or paid the rent for the period alleged in the suit. In view of the evidence of the plaintiff, it cannot be said that the plaintiff has not succeeded in proving his case.
17. Learned counsel for the appellant submitted that he filed and application under Order 13 Rule 2 CPC. Alongwith this application, receipts of the deposits were produced. It was urged that the court should have taken into consideration those deposits in the order of determination of rent. The learned counsel for the respondent submitted that no prayer whatsoever was made by the appellant to appropriate any amount. Mere filing of receipts of deposit was of no consequence. There was no application filed for adjustment of this amount. Having not prayed for adjustment, specifying the amount deposited, when and how, the appellant has unnecessarily laid stress on this aspect of the order of determination of rent. Had there been any valid deposit made, it would have been counted for the purpose of consideration of determination of rent. Further, the appellant submitted that the deposit so made, if considered in the light of case of Jadiya (supra), it would obviate penalty for second default on the head of the appellant. Every judgment has its own facts. As per the provisions of Sub-section 8(b) of Section 13 of the Act of 1950, such deposits can be ordered to be appropriated by the Court concerned, that deposit having become custodia legis. Such having not been done, it cannot be said that the appellant's submission is well founded, more particularly, when the judgment in Jadiya's case (supra) had different facts. The deposit made during the appeal was the question decided by the court and the Hon'ble Supreme Court overruled an earlier decision of this Court. There the controversy was different than the present one. Hon'ble Supreme Court observed as under:-
"There was no occasion for the landlord to hold the tenant a defaulter for the period 5.11.1983 to 28.7.1984 and file a second suit for eviction in view of the tenant continuing to deposit the rent in the appeal preferred by the landlord against the decree in the first suit."
18. Provisions of Sub-section 8(b) of Section 13 of the Act of 1950 were not brought to the notice of the Hon'ble Supreme Court. May be because the controversy in the case did not involve the question concerning this Sub-section. Judgment of Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. (4), will thus clear the position.
19. In view thereof, there is no substantial question of law in the present appeal. The appeal therefore, having no force is hereby dismissed.