Rajasthan High Court - Jaipur
Prahlad Rai&Anr; vs Madhusudana Acharya&Ors; on 11 December, 2017
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No.20166/2017
1. Prahladrai, Aged About 55 Years
2. Mahesh Kumar, Aged About 60 Years, Both Sons of Late
Satyanarayan, by Caste Pujari Brahmin R/o Nala Ka Bas, Near
Nani Gate, Sikar
----Petitioners
Versus
1. Madhusudanacharya, Aged About 49 Years
2. Vishnukant, Aged About 45 Years
3. Ravikant, Aged About 33 Years, All Sons of Late Mahant
Madhvacharya, by Caste Brahmin, R/o Inside Nani Gate, Sikar
4. Suresh
5. Sanjay, Sons of Late Satyanarayan
6. Gayatri W/o Late Satyanarayan Pujari Brahmin, R/o Nala Ka
Bas, Near Nani Gate, Sikar
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Mahendra Goyal.
For Respondent(s) : Mr. Nirmal Kumar Goyal. _____________________________________________________ HON'BLE MR. JUSTICE ALOK SHARMA Order 11/12/2017 Under challenge is the order dated 20.09.2017 passed by the Additional District Judge No.3, Sikar affirming the order dated 13.05.2016 passed by the Civil Judge (Senior Division), (2 of 13) [CW-20166/2017] Sikar dismissing the application under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter 'the Act of 1950') filed by the petitioner-tenant (hereinafter 'the tenant') on 23.04.2014 seeking a extension of time for deposit of arrears of provisional rent in terms of its order dated 09.05.2001 in terms of Section 13(3) of the Act of 1950 after a delay of 13 years.
The facts of the case are that in the landlord's suit for eviction interalia based on the ground of default, vide order dated 09.05.2001 on an application under Section 13(3) of the Act of 1950 provisional rent was determined @ Rs.20 per month and arrears of rent for the period between 01.07.1993 to 30.04.2001 were directed to be paid within 15 days from the date of the order.
It was further directed that the provisional rent determined be paid in future month to month by the 15 th of the following month.
It appears that while the tenant was thus under an obligation to (3 of 13) [CW-20166/2017] deposit the arrears of provisional rent by 24.05.2001, he did so only on or about 02.06.2001 without having sought and allowed extension of time by the trial court.
The landlord in the circumstances latching on to the failure of the tenant to deposit arrears of provisional rent within time moved an application under Section 13(5) of the Act of 1950 on 13.07.2005 praying that the tenant's defence to struck off under Section 13(5) of the Act of 1950.
The tenant then on 23.04.2014 moved an application purporting to be one under Section 13 (4) of the Act of 1950 seeking extension of time and for condonation of delay of 9 days in deposit of the arrears of provisional rent under the court's order passed on 09.05.2001. That application has been dismissed by the Trial Court under the impugned order dated 20.09.2017 and affirmed in tenant's appeal on 13.05.2016.
Mr. Mahendra Goyal counsel for the tenant submitted (4 of 13) [CW-20166/2017] that the Section 13(4) of the Act of 1950 indeed provides in the first instance for payment of arrears of rent provisionally determined within a period of 15 days from the order passed by the trial court on an application under Section 13(3) of the Act of 1950. And it was so also directed by the trial court under its order dated 09.05.2001. He however emphatically submitted that Section 13(3) of the Act of 1950 itself also evidently empowers the trial court to extend the time for payment of arrears of provisional rent upto a period of three months from the date of its order. It was submitted that within this extendable time the arrears of rent provisionally determined by the Trial Court was indeed admittedly deposited i.e. on 02.06.2001. The delay of 9 days over the 15 days directed by the Trial Court in deposit of provisional rent determined on 09.05.2001 was thus not fatal. It was submitted that in terms of the plain language of Section 13(4) of the Act of 1950 a formal application for condonation of delay/ (5 of 13) [CW-20166/2017] extension of time in deposit of arrears of provisional rent upto three months from the date of the order Section 13(3) of the Act of 1950 as statutory permissible is not a sine qua non. Deemed extension of time can be construed by acceptance of the deposit when made within three months of the relevant order in view of the fact that Section 13(4) of the Act of 1950 does not even require on its plain language sufficient reasons for non-deposit within 15 days of the order under Section 13(3) of the Act of 1950. Reference was made to the judgment of the Apex Court in the case of Nasiruddin and Others vs. Sita Ram Agarwal cited in [(2003) 2 SCC 577] in support of the contention Mr. Mahendra Goyal further submitted that in any event a formal application for extension of time for deposit of provisional rent was moved on 23.04.2014. It was submitted that in this view of the matter deposit of arrears of provisional rent having been made within three months of the order dated 09.05.2001 under Section (6 of 13) [CW-20166/2017] under Section 13(3) of the Act of 1950 and an application for extension of time thereafter being filed albeit belatedly, time for deposit of arrears of provisional rent ought to have been formally extended and delay of 9 days is condoned for no prejudice from such delay was occasioned to the landlord. Mr. Mahendra Goyal relied upon the judgment of this Court in the case of Jamna Lal vs. Kanhaiya Lal reported in [(1982) WLN 751] to contend that the power to extend time for deposit of provisional rent, its arrears or month to month must be liberally exercised as such power was vested in courts by the legislators as a beneficial provision for the tenant and saving him from being denied his defence in an eviction petition on technical grounds. Mr. Mahendra Goyal submitted that the view of this Court in the case of Bhanwar Singh vs. Shaitan Singh & Others reported in [2010(3) DNJ (Raj.) 1283] holding to the contrary is founded upon the misleading of the judgment of the Apex Court in the case (7 of 13) [CW-20166/2017] of Nasiruddin and Others (supra) and does not thereof state the correct law. It was submitted that even otherwise in the case of Gopal Singh vs. Civil Judge (Jr. Division), Bijaynagar, District Ajmer & Others in [(2010)3 DNJ (Raj.) 1276] the issue was different from the one as obtains in the instant case.
Here the extension of time for deposit of arrears of provisional rent is sought after deposit within the statutorily prescribed period of three months from the date of the order under Section 13(3) of the Act of 1950 and not beyond albeit without the Court's order extending time for which the application was subsequently filed.
Mr. Nirmal Kumar Goyal, counsel for the landlord submitted that it is no doubt true that the trial court has the discretion to extend the time upto three months from its order for deposit of provisional rent as determined on an application under Section 13(3) of the Act of 1950. Mr. Nirmal Goyal submitted that however for the exercise of the trial court's discretion, an (8 of 13) [CW-20166/2017] appropriate application has to be moved by the tenant before the trial court prior to the expiry of the period within which a direction had been issued by it to deposit arrears of provisional rent setting out reason to satisfy it to exercise its discretion for extension of time. Counsel further submitted that if it were to be held contrarily that no formal application in writing for extension of time beyond the period of 15 days for deposit of arrears of provisional rent has to be filed under Section 13(4) of the Act of 1950, it would translate into an absolute right of the tenant to deposit the arrears of provisional rent within 3 months from the date of the trial court's order under Section 13(3); on a date of his choosing. Such a construction would be against the plain language of Section 13(4) of the Act of 1950 and negate the order as the trial court may pass under Section 13(3) of the Act of 1950. Mr. Nirmal Kumar Goyal submitted that under Section 13(4) of the Act of 1950 arrears of provisional rent are to be ordinarily deposited (9 of 13) [CW-20166/2017] within a period of 15 days from the date of determination rent.
Extension of time is then an exception provided for in the discretion of the trial court. It was submitted that following the expiry of time granted by the trial court, a minimum of 15 days or maximum of three months, non deposit of provisional rent in law entails the consequence defence of the tenant being struck off. An order of the Court under Section 13(5) of the Act of 1950 only application of the landlord is only a formality as it is statutorily mandated. Mr. Nirmal Kumar Goyal submitted that it has been held in the case of Nasiruddin and Others (supra) that time for deposit of provisional rent can not in any eventuality be extended beyond a period of three months. Mr. N.K. Goyal submitted that mere the fortuitous circumstances of the defence of the tenant not being struck off for non deposit of provisional rent within time as directed by the Court cannot be construed to the advantage of the tenant nor give him a license of moving a grossly delayed (10 of 13) [CW-20166/2017] application for extension of time/ condonation of delay after 13 years on 23.04.2014. Mr. Nirmal Goyal relied upon the judgment of the Apex Court in the case of Sayeda Akhtar vs. Abdul Ahad reported in [(2003) AIR SC 2985] and submitted that albeit the aforesaid judgment arose out of the M.P. Accommodation Control Act, 1961 the principle enunciated therein would attract to the facts of the present case. He submitted that the Apex Court has held in the said case that an application for extension of time for deposit of arrears of rent has to be moved for the satisfaction of the Trial Court within the statutorily permissible time limit for deposit of provisional rent.
Heard. Considered.
The trial court indeed has the power under Section 13(4) of the Act of 1950 to extend time for deposit of arrears of provisional rent upto three months from the date of its order under Section 13(3) of the Act of 1950. That power however (11 of 13) [CW-20166/2017] cannot be expected or even permitted to be exercised suo-moto and time extended even in situations where the arrears of provisional rent are deposited beyond the period of 15 days directed by the Trial Court, but within three months from the date of the trial court's order. A litigant seeking exercise of the courts discretion has to state factual circumstances for a court to comes to his aid. No automatic exercise of the Court's discretion to extend time to deposit arrears of provisional rent can be read into Section 13(4) of the Act of 1950 nor can there be an implied extension of time. In Jamna Lal vs. Kanhaiya Lal (supra) this Court held that, it must be understood that it is not a right of the tenant to obtain such as extension for deposit of provisional rent but the Court has discretion can only be exercised in a judicial manner. This, I may add, as non-deposit of arrears of provisional rent or subsequent rent month to month within time directed by the Court or extended time, entails crystallization of the (12 of 13) [CW-20166/2017] landlord's, statutory right to have the defence of the tenant struck off.
I am of the considered view that any application for extension of time for deposit of arrears of provisional rent with reference to directions first issued by the Trial Court has to be made before expiry of three months from the date of the order under Section 13(3) of the Act of 1950. Non deposit of provisional rent and its arrears within time granted or extended by the trial court given a landlord a statutory right under Section 13(5) of the Act of 1950 to seek an automatic striking off the tenant's defence in the eviction petition under the Act of 1950. That right cannot be negated on a stretched interpretation of Section 13(4) of the Act of 1950. In the instant case the application for extension of time to deposit provisional rent was made only on 23.04.2014 after a delay of about 13 years. That application was rightly dismissed. In the circumstances deposit of rent on 02.06.2001 after the lapsing (13 of 13) [CW-20166/2017] of 15 days of the Trial Court's order dated 09.05.2001 under Section 13(3) of the Act of 1950 and directions therein without an order of extension of time was of no avail.
I am therefore not inclined to interfere in the petition.
Dismissed.
(ALOK SHARMA) J.
Himanshu/93.