Rajasthan High Court - Jaipur
Madan Bansal vs Ram Narain on 25 June, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH
J U D G M E N T
S.B. Civil Second Appeal No.458/2001
Madan Bansal Vs. Ramnarayan Sharma
Date of Judgment : 25.06.2012
PRESENT
HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL
Mr. K.K.Sharma Sr.Advocate with
Mr. Govind Rawat for the appellant.
Mr. R.K.Agarwal Sr.Advocate with
Mr.Alok Chaturvedi for the respondent.
REPORTABLE The defendant-appellant (tenant) has preferred this Civil Second Appeal under Section 100 of the Code of Civil Procedure against the impugned judgment and decree dated 31.7.2001 passed by the District Judge, Tonk in Civil Regular Appeal No.71/1996 whereby the learned appellate Court has upheld and affirmed the judgment and decree dated 13.2.1996 passed by the trial Court i.e. Additional Civil Judge (Junior Division), Tonk in Civil Suit No.198/1995 whereby the learned trial Court decreed the suit for eviction filed by the plaintiff-respondent.
2. Brief relevant facts for the disposal of this appeal may be stated as below :-
(i) The suit shop was initially let out to the appellant by the respondent on 1.2.1970 at the monthly rent of Rs.35/- and in this regard a rent note was also executed.
(ii) Civil Suit No.143/1977 was filed by the respondent against the appellant on 12.7.1977 for eviction on the ground of default in payment of rent under clause (a) of sub-section (1) of Section 13 of the Rajastnan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Act) alleging therein that the appellant has failed to make payment of rent for a period of more than six months i.e. from the month of June 1975 to the month of June 1977.
(iii) In the previous suit the appellant appeared before the Court concerned and the suit filed by the respondent was dismissed vide order dated 19.9.1977 (Ex.4). Vide that order provisional rent under Section 13 (3) of the Act was determined and the rent deposited by the appellant under Section 19-A of the Act was adjusted and in compliance of the order the appellant paid interest and cost of the suit to the respondent and it was also mentioned in the order that benefit of Section 13 (6) (wrongly mentioned as Section 13 (3) ) of the Act has been extended to the appellant.
(iv) Some time in the year 1982 some alterations and modifications were made in the suit shop and the monthly rent thereof was increased from Rs.35/- to Rs.100/- and a new rent note was executed by the appellant in favour of the respondent.
(v) The present suit was filed by the respondent on 2.6.1988 for eviction and recovery of arrears of rent with the averments that the respondent has not paid rent from 1.6.1985 to 31.5.1988 and he has again committed default in payment of rent for a period of more than six months and he is liable to be evicted from the suit shop. It was also averred that as the appellant has already obtained benefit of Section 13 (6) of the Act in the previous suit, he is not entitled to get the benefit again and he is liable to be evicted from the suit shop. It was also prayed that decree for arrears of rent and mesne profits may also be passed against the appellant.
(vi) The appellant filed written statement on 17.10.1989 in which the material averments made in the plaint were denied and it was alleged that previously no default in payment of rent was committed by him and there was no question of extending benefit of Section 13 (6) of the Act to him in the previous suit. It was also averred that the appellant filed an application for transfer of the previous suit as no counsel was prepared to appear on behalf of him but the parties entered into compromise and the rent deposited by him under Section 19-A of the Act was set off and he paid remaining amount to the respondent in cash and the previous suit was dismissed on that basis. It was further averred that no finding was given in the previous suit that before filing of the suit default in payment of rent was committed by the appellant and, therefore, there was no question of affording benefit of Section 13 (6) of the Act to him in the previous suit. It is pertinent to note that this fact was not disputed by the appellant that rent for a period of 36 months was due against him before the institution of the present suit.
(vii) An order determining the provisional rent under Section 13 (3) of the Act was passed by the trial Court on 2.4.1990.
(viii) With the permission of the trial Court the appellant filed amended written statement on 5.3.1991 incorporating therein Para No.11 (a) regarding the creation of fresh tenancy between the parties in respect of the suit shop on the ground that fresh terms of tenancy were arrived at between the parties, the monthly rent was increased to Rs.100/- and a new rent note has been executed. It was pleaded that since then no benefit has been obtained by the appellant under Section 13 (6) of the Act and, therefore, he is entitled to get benefit of the first default committed after the creation of the new tenancy.
(ix) Rejoinder to the amended written statement was filed by the respondent on 5.3.1991 and the fact of creation of the new tenancy as alleged by the appellant was denied.
(x) Issues were framed by the trial Court on 3.9.1990 and additional issues were also framed on 11.7.1991 and both the parties produced oral as well as documentary evidence in support of their respective case and the learned trial Court after hearing both the parties decreed the suit filed by the respondent vide judgment and decree dated 13.2.1996. It was found by the Court that in the previous suit benefit of first default in payment of rent was extended to the appellant and, therefore, he is not entitled to get the benefit again in the present suit. It was also found that in the facts and circumstances of the case it cannot be said that new tenancy regarding the suit shop was created between the parties merely by the reason that the monthly rent was increased from Rs.35/- to Rs.100/-. In the light of the admitted fact that rent for a period of more than six months was due against the appellant, decree for eviction and arrears of rent etc. was passed.
(xi) Dissatisfied with the judgment and decree passed by the trial Court the appellant filed appeal under Section 96 CPC before the first appellate Court and the same was dismissed vide judgment and decree dated 31.7.2001. The learned appellate Court on the basis of evidence available on record and the case law cited before it upheld and affirmed each and every finding arrived at by the trial Court. Still dissatisfied the tenant-appellant is before this Court by way of this civil second appeal.
3. During the pendency of the appeal the original tenant appellant died and in his place his legal representatives were made party as appellants.
4. After hearing learned counsel for both the parites this appeal was admitted vide order dated 15.3.2005 on the following substantial question of law:-
(1) Whether the Courts below erred in holding that no new tenancy was created even though the fact of execution of new rent note was admitted by the plaintiff himself?
5. On consideration of submissions made on behalf of the respective parties and going through the pleadings and evidence available on record, I am of the view that following additional substantial questions of law are also involved in this appeal requiring consideration and decision of this Court :-
(2) Even if it is held that new tenancy was created between the parties regarding the suit shop, benefit of Section 13 (6) of the Act is not extendable to the appellant as the accommodation in question is the same?
(3) Whether benefit of first default in payment of rent under Section 13 (6) of the Act can be extended to a tenant only when first it is held by the Court that default in payment of rent for more than six months was committed by the tenant before the institution of the suit?
(4) Whether benefit of first default was infact extended to the appellant vide order dated 19.9.1977 passed in previous Civil Suit No.143/1977?
6. Assailing the judgments passed by the Courts below learned counsel for the appellant has submitted as below:-
(i) For determination of provisional rent under Section 13 (3) of the Act it is necessary that written statement is also filed by the tenant and plaint as well as written statement and other material available on record is considered by the Court but in the previous suit as no written statement was filed by the appellant, it cannot be said that vide order dated 19.9.1977 (Ex.4) the Court infact determined provisional rent and in absence of the same there is no question of compliance of Section 13 (4) of the Act and extension of benefit of first default under Section 13 (6) of the Act to the appellant in the previous suit.
(ii) In the light of order dated 19.9.1977 passed in the previous suit at the most it can be held that against the due rent, the rent deposited by the appellant under Section 19-A of the Act was adjusted and set off and it was ordered that remaining amount be paid by the appellant and the same was complied with by the appellant and as a result thereof the suit filed by the respondent was dismissed. Merely because the rent was found due against the appellant and the rent deposited by him in Court under Section 19-A of the Act was adjusted and set off, it cannot be said that an order of determination of provisional rent under Section 13 (3) of the Act was passed.
(iii) For the extension of benefit of first default in payment of rent under Section 13 (6) of the Act it is necessary that first a clear finding is arrived at by the Court that default in payment of rent for a period of six months was committed by the tenant but in the previous suit no such finding was given by the Court vide order dated 19.9.1977 or otherwise and in absence thereof it could not have been held by the Courts below that benefit of first default was granted to the appellant.
(iv) For the applicability of Section 13 (6) of the Act it is also essential that the tenant comply the provisions of Section 13 (4) of the Act during the period for which the suit remains pending but as the previous suit was dismissed by the Court on 19.9.1977 itself on which the order of adjusting the rent deposited under Section 19-A of the Act was passed and payment of the rest of the amount was made, there was no occasion of compliance or non-compliance of Section 13 (4) of the Act by the appellant and in absence of the same, it can not be said that in the previous suit benefit of first default under Section 13 (6) of the Act was extended to the appellant.
(v) No finding was given in the previous suit to the effect that the rent deposited by the appellant under Section 19-A of the Act was not a valid deposit and in absence thereof it will be deemed that the same was a legal deposit and it was paid to the respondent before the suit was instituted. In such circumstance there was no occasion for the Court in the previous suit to give a finding that rent for a period of more than six months was due against the appellant and the Court has not rightly given a finding to that effect. As there was no finding against the appellant regarding default in payment of rent for a period of more than six months, there was no question of affording benefit of first default in payment of rent in the previous suit.
(vi) It is an admitted fact that in the year 1982 some alterations and modifications were made in the suit shop and as a result thereof the monthly rent was increased from Rs.35/- to Rs.100/- and fresh rent note was also executed between the parties. All these facts are clear indication of the fact that new tenancy was created between the parties in regard to the suit shop on some terms and conditions which are different from the original one but the Courts below overlooking the relevant facts and the legal position have wrongly held that no fresh tenancy between the parties has been created.
(vii) As new tenancy was created between the parties the previous benefit of first default in payment of rent, if any, is of no relavance and the benefit of Section 13 (6) of the Act could not be refused only by the reason that in the previous suit such benefit has already been accorded to the appellant. It is an admitted fact that after 1982 from which the new tenancy has been created benefit of first default in payment of rent has not been accorded to the appelland and, therefore, in the present suit the appellant was entitled to get the benefit of the same.
(viii) The rent note executed in the year 1970 and the subsequent rent note executed in the year 1982 were not produced by the respondent to show that infact there is no material difference between the terms and conditions of the two tenacies but without any reason the same were not produced and in absence of that adverse inference has to be drawn against the respondent and it must be held that there is material difference in terms and conditions of the two tenancies indicating that a new tenancy infact was created between the parties.
(ix) Although the suit shop being the same, the accommodation is also the same but for the applicability of proviso appended to sub-section (6) of Section 13 of the Act the same is not relevant but what is important and relevant is whether for the same accommodation a new tenancy has been created between the landlord and the tenant and if it is found that for the same accommodation a new tenancy has been created the proviso will not be applicable and the benefit of Section 13 (6) of the Act cannot be denied to the tenant only on the basis that previously for the same accommodation benefit of the first default has been extended to him. The word accommodation used in the proviso is to be read and considered in the light of the existing tenancy and not the previous tenancy.
(x) For a new tenancy come into existence it is not a legal requirement that in each and every case first the existing tenancy is surrendered and possession of the tenanted premises is delivered to the landlord and after the creation of new tenancy possession is again handed over to the tenant. Implied surrender of the existing tenancy is also legally possible in the light of Section 111 of the Transfer of Property Act. In the present case, as the alterations and modifications were made in the suit shop, monthly rent was increased and a new rent note was executed, all these facts are indication of the fact that there was clear intention of the parties regarding creation of new tenancy although possession of the suit shop was not delivered back to the respondent by the appellant.
In support of his submissions, learned counsel for the appellant relied upon the cases of Raghunandan Saran Ashok Saran & ors. Vs. Ghaziabad Engineering Co.(P) Ltd. reported in (1986) 3 SCC 39, Jagan Nath Vs. Ram Kishan Dass & anr. reported in (1985 1 SCC 406, Govind Narain Vs. Mohan Singh reported in 1992 (1) WLC Raj.504, Deela Ram Vs. Jugmandir Dass RLR 1992 (1) 72 and Tarachand Vs. Sagarbai alias Chaiyalibai reported in (2007) 5 SCC 392.
7. On the other hand, learned counsel for the respondent by controverting the submissions made on behalf of the appellant submitted as below:-
(i) High Court has very limited jurisdiction of interference in a second appeal filed under Section 100 CPC in the findings of fact arrived at by the Courts below and as in the present case both the Courts below have concurrently held against the appellant, the same is not liable to be interfered. Even the learned counsel for the appellant has failed to show that the findings of the Courts below are result of non-consideration of material evidence available on record or misreading or mis-interpretation thereof.
(ii) The evidence available on record and more particularly the copy of the plaint (Ex.3) filed in the previous suit and the order dated 19.9.1977 (Ex.4) clearly indicates that previous suit was filed on the basis of default in payment of rent for a period of more than six months and as the appellant failed to deny that fact by filing written statement or otherwise, it should be deemed that the appellant admitted that fact and even if no specific finding was given in the previous suit in respect of default in payment of rent for a period of more than six months before the institution of the suit, it cannot be held that in absence of the same benefit of Section 13 (6) of the Act was not extendable and infact no such benefit was accorded to the appellant in the previous suit.
(iii) There is no legal requirement that before benefit of Section 13 (6) of the Act is accorded to a tenant a finding is required to be arrived at by the Court that the tenant infact has made default in payment of rent for a period of more than six months before the suit was filed. Thus, in the present case even if there is no specific finding of the Court in the previous suit regarding non payment of rent for a period of six months before the institution of the suit, it cannot be said that the benefit was not legally extendable and infact no such benefit was given to the appellant in the previous suit. Order dated 19.9.1977 (Ex.4) indicates that benefit of Section 13 (6) [wrongly mentioned as Section 13(3) ] of the Act was accorded to the appellant and it is clear indication of the fact that it was in the view of the Court that the appellant has committed default in payment of rent for a period more than six months. This order also clearly indicates that provisional rent under Section 13 (3) of the Act was determined for a period of 27 months including the period of 25 months for which the rent was not paid by the appellant before the institution of the suit.Merely because written statement was not filed it cannot be said that no order determining provisional rent was passed by the Court as it was for the appellant to file written statement or not.If in a case tenant chooses not to file written statement to the plaint filed by the landlord, the same cannot prevent the Court to determine the provisional rent under Section 13 (3) of the Act after considering the averments made in the plaint and the other material available on record. This order also indicates that the Court found that rent for total 27 months upto the end of month of August 1977 is due against the tenant and the same is liable to be paid by him alongwith interest at the prescribed rate. Although, the rent deposited by the appellant under Section 19-A of the Act was adjusted and set off in the amount of rent provisionally determined by the Court but such adjustment or set off does not mean that it was held by the Court that the rent so deposited by the appellant is a valid deposit and infact it was paid to the appellant before the institution of the suit.The evidence available on record and more particularly the admission made by the appellant in his cross examination is a clear indication of the fact that rent for a period of 26 months was deposited by the appellant under Section 19-A of the Act after the institution of the previous suit without following the procedure provided in Section 19-A of the Act first by tendering it personally to the respondent or sending it by money order or depositing the same in the bank account of the respondent. Order dated 19.9.1977 (Ex.4) passed in the previous suit was not challenged by the appellant and, therefore, the validity of the same cannot be looked into in the present matter. Even if for the sake of arguments it is admitted that benefit of Section 13 (6) of the Act was wrongly extended to the appellant in the previous suit, validity of order dated 19.9.1977 cannot be challenged as it has attained finality. In the present case, only it can be seen whether benefit of Section 13 (6) of the Act was extended to the appellant.
(iv) From the facts and circumstances of the case it has rightly been held by the Courts below that no new tenancy has been created between the parties only on the basis that some alterations and modifications have been effected in the suit shop, monthly rent has been increased and a new rent note has been executed. For a new tenancy to come it is essential that the existing tenancy is surrendered and possession of the tenanted premises is delivered back to the landlord and the same be handed over again to the tenant but in the present case it is an admitted fact that it was not done and in absence of the same presumption regarding creation of new tenancy cannot be raised. There is no material on record indicating that there is material difference in the terms and conditions of the two tenancies and there was intention of the parties for creation of new tenancy. The fact of creation of new tenancy is a finding of fact and as both the Courts below have decided it against the appellant, no interference can be made by the High Court in this second appeal. It is also to be noted that in the amended written statement no plea was taken by the appellant that as a result of increase in rent, execution of new rent note and alterations and modifications made in the suit shop new tenancy was created between the parties and in absence of the same, such contention cannot be allowed to be raised. If such plea would have been raised by the appellant in the amended written statement proper reply would have also been filed by the respondent and he would also have produced the rent notes to indicate that there is no material difference between the terms and conditions of the two tenancies.
(v) Even if for the sake of arguments it is admitted that in the facts and circumstances of the case new tenancy was created between the parties in the year 1982 even then it cannot legally be held that previous extension of benefit of first default has no relavance as proviso to Section 13 (6) of the Act clearly provides that no benefit shall be extendable for the same accommodation if benefit of first default has already been obtained by the tenant for the same accommodation. In the present case, the suit shop and accommodation being the same, benefit of Section 13 (6) of the Act was rightly refused by the Courts below as the appellant has obtained benefit of the same in the previous suit.
In support of submissions, learned counsel for the respondent relied upon the cases of Kuldeep Singh Vs. Ganpat Lal & anr. reported in (1996) 1 SCC 243, T.K.Lathika Vs. Seth Karsandas Jamnadas reported in (1999) 6 SCC 632, Krishna Kumar Khemka Vs. Grindlays Bank PLC & ors. reported in AIR 1991 (SC) 899, Goppulal Vs. Thakurji Shriji Shriji Dwarakadheeshji & anr. reported in 1969 (1) SCC 792, U.P.State Electricity Board Vs. Pooran Chandra Pandey & ors. reported in (2207) 11 SCC 92, Himmat Mal Vs. Summati Roopchand RLW 1993 (2) 498 and Bhikamchand Vs. Jugal Kishore and Ors. reported in WLN 1978 682.
8. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law cited on behalf of the parties.
9. My findings with reasons on each of substantial questions of law are as below:-
(i) In absence of specific pleadings regarding implied surrender of the existing tenancy and arrival of terms and conditions in the alleged new tenancy different from the terms and conditions of the existing tenancy, merely on the basis of alterations and modifications made in the suit shop, increase of monthly rent and execution of fresh rent note it cannot be said that in respect of the suit shop a new tenancy was created between the parties. Even according to the appellant himself the existing tenancy was impliedly surrendered and new tenancy between the parties was created. Clause (f) of Section 111 of the Transfer of Property Act provides that a lease of immovable property may be determined by implied surrender of the tenancy. The illustration to clause (f) provides that a lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease, this is an implied surrender of the former lease, and such lease determines thereupon. Although, it is clear that a existing tenancy may be determined by implied surrender thereof but it is to be seen what tantamount to implied surrender.
In the case of T.K.Lathika Vs. Seth Karsandas Jamnadas (supra) Hon'ble Supreme Court has held as below:
The principle which governs the doctrine of implied surrender of a lease is that when a certain relationship existed between two parties in respect of a subject-matter and a new relationship has come into existence regarding the same subject-matter, the two sets cannot coexist, being inconsistent and incompatible between each other i.e. if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-a-vis the erstwhile demise and then judged whether there was termination of the old jural relationship by implication.
In the same case Hon'ble Court has quoted with approval the observations made in Hill and Redman's Law of Lanlord and Tenant (16th Edn.). It was observed that:-
a surrender does not follow from a mere agreement made during the tenancy for the reduction or increase of rent, or other variation of its terms, unless there is some special reason to infer a new tenancy, where, for instance, the parties make change in the rent under the belief that the old tenancy is at an end.
In the case of Krishna Kumar Khemka Vs. Grindlays Bank PLC & ors. (supra) Hon'ble Court has held that Mere increase or reduction of rent will not necessarily import a surrender of an existing lease and the creation of a new tenancy. Also, merely because there is a change in a tenancy namely that it has become a monthly tenancy, it does not amount to a new tenancy.
Similarly in the case of Goppulal Vs. Thakurji Shriji Shriji Dwarakadheeshji & anr. it was held by Hon'ble Court that a mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy.
In the case of Tarachand Vs. Sagarbai alias Chaiyalibai (supra) it was held that Section 111 (f) of the Transfer of Property Act provides for termination of tenancy by implied surrender. Such implied surrender may be either by creation of a new relationship, or by relinquishment of possession. It was also held that although technically a tenant may continue to occupy the premises, once the nature of possession changes resulting in change in his status, which he accepts, the same may amount to virtual taking of possession. In any event, virtual taking of possession is not a sine qua non for implied surrender as the same can be created by a new relationship also.
In the case of Govind Narain Vs. Mohan Singh (supra) learned Single Bench of this High Court after considering various rulings held as below:-
The principles of law which emerges from the above referred decisions is that mere increase or reduction in the rent by itself is not sufficient to imply the surrender of the existing lease and the grant of new tenancy and even if the mode and time of payment is changed, the supersession of existing tenancy cannot be inferred ordinarily. However, if the terms of the tenancy have changed and a new tenancy agreement is entered into or a new lease is executed by the tenant, the existing tenancy will be deemed to have been surrender and the fact that the tenant continued to remain in possession will be of no consequence.
In the case of State of Orissa Vs. Sudhansu Sekha Misra reported in AIR 1968 (SC) 647 Hon'ble Supreme Court has held that A decision is only an authority for what it actually decides. What is of essence in a decision is its ratio and not every observations found therein nor what logically follows from the various observations made in it.
In the case of Ambica Quarry Works Vs. State of Gujarat reported in (1987) 1 SCC 213 Hon'ble Supreme Court has held that The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.
Similarly in the case of Bhavnagar University Vs. State of Gujarat reported in (2003) 2 SCC 111 it was held that It is also well settled that a little difference in facts or even one additional fact may make a lot of difference in the precedential value of a decision.
The well settled legal position in respect of creation of a new tenancy appears to be that although such tenancy can be created even by implied surrender of the existing tenancy and it is not essential that in each and every case possession of the tenanted premises is delivered back to the tenant and after creation of the new tenancy the possession be again handed over to the landlord but there should be clear intention and understanding between the parties for creation of a new tenancy between them. Infact in most of the cases the implied surrender of existing tenancy is by creation of a new relationship or by relinquishment of the possession. If there is material change in the terms and conditions of the two tenancies, creation of a new tenancy may be presumed but only increase or decrease in the rate of monthly rent is not an indication of the fact that a new tenancy has been created between the parties. There should be some special reason to infer a new tenancy. For instance the parties make the change in the rate of rent in the belief that the old tenancy is at an end. In the present case, merely by the reason that some alterations and modifications have been effected in the suit shop, the monthly rent was increased and a new rent note was executed do not indicate that there was intention and understanding of the appellant and respondent to create a new tenancy between them. No adverse inference can be drawn against the respondent by the reason that he failed to produce the rent notes to show that there is material difference in the terms and conditions of two tenancy because no averment was made by the appellant in the amended written statement, wherein the plea of creation of new tenancy was taken for the first time, to the effect that there was implied surrender of the existing tenancy and there is material difference in the of terms and conditions of the two tenancies. In absence of specific averment it was not expected from the respondent to produce the rent notes before the Court as it was not disputed that a fresh rent note was executed between the parties in the year 1982. It is also pertinent to note that in his statement also the appellant did not state that the terms and conditions of the rent note executed in the year 1982 are materially different from the one of the rent note executed in the year 1970 and in the cross examination of the respondent also no such suggestion was made. It is thus, clear that even after execution of new rent note in the year 1982, no new tenancy was created between the parties. Otherwise also, there being concurrent findings of the Courts below on this point there is no scope to interfere in this second appeal. It is not a case of non-consideration of material evidence available on record or misreading or mis-interpretation thereof resulting into illegality or perversity. It is well settled that findings of fact arrived at by the Courts below cannot easily be interfered by the High Court in second appeal filed under Section 100 CPC unless illegality or perversity is shown. Being based on different facts, the principle laid down by the learned Single Bench of this Court in the case of Govind Narain Vs. Mohan Singh (supra) is of no help to the appellant. In that case provisions of Section 14 (3) of the Act were considered and in the fact situation existing in that case it was found that a fresh tenancy was created between the parties and the suit being filed before the expiry of the prescribed period of five years the same is liable to be dismissed. Accordingly, it is held that no new tenancy was created between the parties in regard to the suit shop.
(ii) If for the sake of arguments it is admitted that a new tenancy was created between the parties in the year 1982 but even then it cannot be held that benefit of Section 13 (6) of the Act is again extendable to the appellant in the present case as the suit shop and the accommodation in question is the same. Sub-section (6) of Section 13 of the Act provides that If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the Court against him. The proviso provides that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation if he again makes a default in the payment of Rent of that accommodation for six months.
From a closure perusal of the proviso it is clear that the word employed is accommodation and not the tenancy. The only meaning of the provision can be that if for the same accommodation the same tenant has obtained benefit of first default in the payment of rent he cannot obtain benefit again for the same accommodation. There is difference between tenancy and accommodation. The legislative intention is clear that the previous benefit should have been obtained for the same accommodation and not the same tenancy. It is possible that by some reason or the other for the same accommodation new tenancy is created between the landlord and the tenant from time to time but it is not possible to extend the benefit for each tenancy so created from time to time. If the intention of the legislature would have been that for each and every new tenancy the tenant is entitled to obtain benefit of first default it would have been clearly provided in the proviso but instead it has been provided that the benefit is extendable only once for the same accommodation. Thus, it is clear that if the tenant and the accommodation are the same, the proviso will be applicable and if for the same accommodation the same tenant has already obtained the benefit of first default in payment of rent, he would not be entitled to get the benefit again.
(iii) It is not a legal requirement that before benefit of first default in payment of rent under Section 13 (6) of the Act is extended to a tenant it is essential for the Court first to arrive at a clear finding that the tenant has committed default in payment of rent for a period of six months or more before the institution of the suit.
In the case of Bhikamchand Vs. Jugal Kishore and Ors. (supra), the question raised was whether in the absence of a finding that the tenant is a defaulter within the meaning of Section 13 (1) (a), in a suit which is based on the ground of default for payment of rent and disposed of on the basis of compromise, the defandant can be said to have availed the benefit of Section 13 (7) (Old) of the Act. Repeling the contention raised on behalf of the tenant and relying upon the case of Shobraj Vs. Bhanwar Lal reported in 1974 RLW 251 learned Single Bench of this Court held that it is not the requirement of law that there must be finding as to the previous default and what is the required is that the tenant must have obtained the benefit of Section 13 (A). According to learned Judge the proviso to Section 13 (7) (Old) merely lays down that the tenant must have taken benefit of Section 13 (7) (Old) or benefit of Section 13 (A) in respect of the same accommodation.
In the case of Deela Ram Vs. Jugmandir Dass (supra) relied upon by the learned counsel for the appellant, the only point raised and considered by the learned Single Bench of this Court was as to whether it can be said that the tenant had been given the benefit of sub-section (6) of Section 13 of the Act in the earlier proceedings and not the question whether it is necessary for the Court to come to a definite finding to the effect that the tenant has committed default in payment of rent for a period of six months before the institution of the suit and only then benefit under Section 13 (6) of the Act can be extended to him. In that case from the facts available on record it was held that the tenant had been given the benefit in the earlier suit. In none of the other cases relied upon on behalf of the appellant it has been held that in absence of finding in default of payment of rent for a period of six months benefit of Section 13 (6) cannot be accorded to the tenant.
Otherwise also, the order dated 19.9.1977 (Ex.4) shows that an implied finding was given by the Court in the previous suit that rent for a period of more than six months was due against the appellant and thus, he committed default in payment of rent for the statutory period. Order dated 19.9.1977 shows that appellant also appeared before the Court and provisional rent under Section 13 (3) of the Act was determined. It was found by the Court that rent upto the month of August 1977 is due against the appellant and interest on the amount due is also payable. Clause (a) of sub-section (1) of Section 13 of the Act provides that the tenant shall be liable to be evicted from the tenanted premises if he neither pays nor tenders the amount of rent due from him for six months. Thus, according to this provision if the tenant is in arrear of of rent for a period of six months or more before the institution of the suit, he would be liable to be evicted from the tenanted premises. Sub-section (3) of Section 13 of the Act provides that 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 issues, 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 from the date when any such amount was payable upto the date of determination.
It is thus, mandatory for the Court to determine provisional rent as provided in sub-section (3) if the suit is based on the ground of default in payment of rent for a period of six months or the more. In the previous suit the respondent claimed that rent for a period of 25 months is due against the appellant. As already stated the previous suit was filed on 12.7.1977 that means rent upto 30.6.1977 was due against the appellant. In accordance with the procedure provided in sub-section (3), the Court vide order dated 19.9.1977 determined provisional rent for a total period of 27 months including the months of July and August 1977 at the rate of Rs.35/- per month amounting to Rs.945/- and on it Rs.66/- were calculated as interest. Determination of provisional rent for a period of 27 months is an indication of the fact that the Court took into consideration the fact that rent for a period of 25 months has not been paid by the appellant before the institution of the suit and he has committed default in payment of rent for a period of more than six months. Although, vide order dated 19.9.1977 amount of Rs.910/- deposited by the appellant under Section 19-A of the Act was adjusted and set off in the amount so calculated and the appellant paid the remaining amount to the appellant but it cannot be said that in the earlier suit the Court found that rent for a period of six months was not due against the appellant and the amount deposited by him under Section 19-A of the Act was a valid deposit and that is why that amount was adjusted and set off in the amount provisionally determined by the Court. Merely because the amount deposited by the appellant under Section 19-A of the Act was adjusted and set off, it cannot be said that the deposit was valid and in accordance with the procedure provided in the Act. Clause (c) of sub-section (3) of Section 19-A of the Act provides the circumstances in which a tenant is legally entitled to deposit the rent in Court. Without following the prescribed procedure the tenant is not entitled to directly deposit the rent in Court. Hon'ble Supreme Court in the case of Kuldeep Singh (supra) has held that under Section 19-A (3) (c) of the Act, the tenant can deposit the rent in Court only if the conditions laid down in the said provision are satisfied. In the present case, it is not the case of the appellant that before depositing the rent in the Court under Section 19-A of the Act the procedure prescribed by law was followed. In his cross- examination the appellant has expressed ignorance whether before depositing the rent in Court under Section 19-A of the Act the same was sent by a money-order or not. He has admitted that he personally did not pay the rent to the respondent. He has also admitted that no notice was given to the respondent about his bank account. The appellant while admitting the fact that rent for a period of 26 months was deposited in Court has expressed ignorance whether the same was deposited in one installment or more. In absence of clear statement of the appellant it will be deemed that in the previous suit the appellant deposited rent for a period of 26 months i.e. upto the month of June 1977 alongwith the rent for the month of July 1977 in one installment after the institution of the suit. This deposit of rent for a period of 26 months in one installment is a clear admission on the part of the appellant that rent for a period of more than six months was due against him before the previous suit was instituted against him. Accordingly, it is held that it is not a legal requirement that before benefit of sub-section (6) of Section 13 of the Act is extended to a tenant, it is essential for the Court first to give a clear finding that the tenant has committed default in payment of rent for a period of six months before the institution of the suit. What is necessary is that provisional rent is determined under sub-section (3) and the tenant complied the provisions of sub-section (4) of Section 13 of the Act.
(iv) In the facts and circumstances of the case, this contention of the appellant is not legally tenable that infact benefit of Section 13 (6) of the Act was not accorded to him in the previous suit. There is clear mention in the order dated 19.9.1977 that benefit of Section 13 (6) of the Act [wrongly mentioned as Section 13 (3) ] was granted and as a consequence of that the suit filed by the respondent was dismissed. As that order was not further challenged and the same attained finality the validity of the order cannot be considered in the present case but the order can be looked into to adjudge whether benefit of Section 13 (6) of the Act was granted or not. This contention of the learned counsel for the appellant is also not tenable that as opportunity to comply the order of determination of provisional rent allegedly made vide order dated 19.9.1977 in accordance with the provisions of Section 13 (4) of the Act was not afforded to the appellant, it cannot be said that benefit of Section 13 (6) of the Act was accorded to the appellant in the previous suit.
Sub-section (4) of Section 13 of the Act provides that tenant shall deposit in Court or to pay to the landlord the amount determined by the Court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3).
It is clear that sub-section (4) is in two parts. According to first part the entire arrear of rent as determined under sub-section (3) is required to be paid by the tenant within the prescribed period whereas the second part provides that if the suit remains further pending monthly rent would also be liable to be paid by the tenant within the prescribed period from month to month during the period for which the suit remains pending. As the previous suit was based on the ground of default in payment of rent only and vide order dated 19.9.1977 the provisional rent was determined and after adjustment and set off of the rent deposited by the appellant under Section 19-A of the Act the remaining amount alongwith interest and cost of the suit was paid by the appellant to the respondent, the Court in the previous suit has rightly dismissed the suit as there was no further need to keep the same pending. Therefore, it cannot be said that the appellant did not have opportunity to comply the provisions of sub-section (4) of Section 13 of the Act and in absence of that it cannot be said that in the previous suit benefit of Section 13 (6) of the Act was extendable and infact such benefit was extended. In this regard the legal position is that where the suit for eviction is solely based on the ground of default in payment of rent, the suit shall stand dismissed as soon as the total amount of arrears of rent together with the the interest and the cost as per the order of the Court is deposited or paid by the tenant in the prescribed period. It is only where the suit for eviction is based on the ground of default in payment of rent together with any other one or more of the grounds, the Court shall proceed to hear the other grounds of eviction in such suit and pending such trial the tenant is required to deposit or pay the rent within the prescribed period from which date the rent becomes due and payable.
This contention of the appellant is also not tenable that in the previous suit in the absence of filing of the written statement by the appellant it cannot be said that provisional rent under Section 13 (3) of the Act was determined. There is no legal requirement that the provisional rent can be determined only when written statement is filed by the tenant. According to sub-section (3) of the Act if written statement is filed by the tenant that shall also be considered by the Court alongwith the plaint and other material available on record to provisionally determine the rent. It is for the tenant to file written statement or not and if in a case the tenant chooses not to do so it does not mean that the Court has no jurisdiction to determine the provisional rent. A tenant by his own act cannot prevent the Court from determining the provisional rent if other requirements are existing. Although, according to sub-section (4) of Section 19-A of the Act, for the purpose of clause (a) of sub-section (1) of Section 13 of the Act; a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3) of Section 19-A of the Act but in the present for the reasons already mentioned it can not be said that the deposit of rent made by the appellant during the pendency of the earlier suit was a valid deposit. Accordingly, it is held that benefit of the first default in payment of rent under sub-section (6) of Section 13 of the Act was extended to the appellant in the previous suit.
10. The net result of all this discussion and of the findings arrived at by me is that no illegality and perversity has been committed by the Courts below in decreeing the suit filed by the landlords respondent.
Consequently, the appeal being meritless is, hereby, dismissed with costs throughout. Two months period is granted to the appellant to vacate the suit shop and to hand over the peaceful possession of the same to the respondent. The stay application also stands dismissed.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary