Rajasthan High Court - Jodhpur
Smt. Mohini Devi & Ors vs Oswal Singh Sabha Thr.Ganpat Sand on 7 January, 2009
Equivalent citations: AIR 2009 (NOC) 1594 (RAJ.)
Author: Vineet Kothari
Bench: Vineet Kothari
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha
S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha
DATE OF JUDGMENT : .7th January, 2009
1/29
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
Mohini Devi & Ors. vs. Oswal Singh Sabha
S.B.CIVIL SECOND APPEAL NO.17/2005
Shyam Lal vs. Oswal Singh Sabha
S.B.CIVIL SECOND APPEAL NO.13/2005
DATE OF JUDGMENT : 7th January, 2009
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
REPORTABLE
Mr.M.C.Bhoot,]
Mr.R.R.Nagori,] for the appellant-defendants.
Mr.R.K.Thanvi, for the respondent-plaintiff.
BY THE COURT:-
1. These two appeals have been filed by the defendant-tenants aggrieved by the judgment and eviction decree of the first appellate court of learned Additional District Judge No.1 Jodhpur dated 29/10/2004, whereby, the learned first appellate court granted decree of eviction on the ground of second default in payment of rent due by S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 2/29 the defendant-tenants. The trial court had, however, rejected the suit filed by the plaintiff-respondent by the judgment and decree dated 7/10/2003. The defendant-tenants are mother and son, the legal representatives of Laxmi Narain and the suit premises are `bara' (Nohra) situated inside Siwanchi Gate, Jodhpur. Since common facts and points are involved in these appeals, the same are being decided by common judgment.
2. The earlier suit filed by the plaintiff, namely suit No.353/89 & suit no.462/89 on the ground of default was dismissed, giving benefit of first default to the defendant-tenants on 11/12/1992, therefore, the present suit was filed by the plaintiff-respondent on the ground of second default on account of alleged non-payment of rent by the defendant-tenants for the period 1-4-93 to 30-4-95 for 25 months. In the suit against Shyamlal, the plaintiff also stated that in the previous suit, a sum of Rs.1200/- was not paid to the plaintiff on account of rejection of application under Section 19 A of the Act and, therefore, that sum also was due besides second default for the period from 1/1/1994 to 30/4/1995. The trial court, however, rejected both the suits of plaintiff-respondent on the ground that the plaintiff had failed S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 3/29 to prove the second default inasmuch as the rent was paid in advance by the defendants for various periods vide Ex.A/1 to A/10 produced by the defendants, the details of which were given by the learned trial court in the impugned order.
3. The first appellate court, however, found that in the second suit filed by the plaintiff-appellant, the trial court had determined the provisional rent as suit was filed on the ground of default in payment of rent under Section 13(3) of the Rent Control Act, 1950 vide order dated 29/9/2000 determining the arrears of rent including interest for delay in deposit of rent and since the said interest part was deposited in the Bank account of the plaintiff on 9/1/2001 vide Ex.A/11 produced by the defendants with delay beyond the period fixed in the order dated 29-9-2000 determining the provisional rent due and the said delay could not be condoned by the court in view of the decision of Hon'ble Supreme Court in case of Nasiruddin and others v. Sita Ram Agrawal, 2003 DNJ (SC) 180, therefore, the defendant-tenants were liable to be evicted from the suit premises and consequently, the appellate court passed the impugned eviction decree on 29/10/2004 and being aggrieved by which the defendants have preferred these S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 4/29 present Second Appeals before this Court, which after issuance of notice to the respondent-plaintiff on 13/7/2006 have come up for admission before this Court after about two years. The appeals were contested by the plaintiff-respondent and both the counsels made lengthy arguments even at the admission stage and therefore, these appeals are being finally decided at the admission stage.
4. Mr M.C. Bhoot and Mr R.R. Nagori, learned counsels appearing for the appellant-defendants vehemently submitted that in view of the advance deposit of rent by the appellant-defendants by various receipts Ex.A/1 to A/10 produced by the appellant-defendants before the learned trial court showing advance deposit of rent in the Bank account of plaintiff-respondent, no eviction decree could be passed by the learned first appellate court on the ground of second default and therefore, there was no question of payment of any interest on the arrears of rent determined by learned trial court by order dated 29/9/2000 even though said interest was deposited by the appellant-defendants on 9/1/2001 vide Ex.A/11. They submitted that the non-compliance with the order of learned trial court determining the rent due on 29/9/2000 was of little consequence and unless the S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 5/29 plaintiff could establish and prove the second default on the part of defendant-tenants, no eviction decree could be passed against the defendants. They further urged that, in fact, the plaintiff respondent had filed the second suit for eviction on the alleged ground of default in payment of rent without even verifying the facts from its Bank account and therefore, they had not approached the court with clean hands and suit was rightly dismissed by the learned trial court, therefore, first appellate court had erred in reversing that judgment of trial court and passing decree of eviction in the first appeal filed by the plaintiff.
5. On the other hand, Mr R.K. Thanvi, learned counsel appearing for the respondent plaintiff vehemently submitted that there was no advance deposit of rent by the appellant-defendants and since the second suit was filed on the ground of second default, the learned trial court had rightly determined the provisional rent due under Section 13(3) of the Act including interest and admittedly, since interest was paid belatedly vide Ex.A/11 on 9/1/2001 and there was no power with the trial court to condone such delay in view of Supreme Court decision in case of Nasiruddin v. Sita Ram Agarwal S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 6/29 (supra), learned first appellate court was perfectly justified in allowing appeal of the plaintiff and passing the eviction decree in view of said Supreme Court decision and thus, there is no force in the present Second Appeals of the defendant-tenants and the same deserve to be dismissed as no substantial question of law arises in the present second appeals. He also urged that the defendants never challenged the order under Section 13(3) of the Act dated 29/9/2000 and allowed it to become final and thus belated compliance thereof on 9/1/2001 rendered the defendants liable to eviction.
6. Thus, the short controversy which arises is as to whether after the determination of the arrears of rent due by the learned trial court determining the arrears of rent and interest and provisional rent to be paid by the defendants, what is the consequence if such rent or interest is not paid by the appellant-defendants within the time stipulated in the order or as provided in the Act and whether eviction decree could be passed on account of delayed payment of rent or interest by the defendant-tenants.
7. Both the learned counsels relied upon certain case laws also, S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 7/29 however, this court is of the opinion that controversy in hand is fully covered by Supreme Court decision in the case of Nasiruddin vs. Sita Ram Agrawal's case (supra), therefore, cited case laws are not discussed in detail. The citations by learned counsel for defendant appellants mainly on the submission of plaintiff not approaching the court with clean hands were; (i) Roshan lal & Anr. vs. Madan lal & Others - (1975) 2 SCC 785 (ii) Shri Paresar vs. Municipal Board, Mount Abu - R.L.R. 1996 1 (iii) Ramhans & Ors. vs. Hetram & Ors. - 2007 W.L.C. (Raj.) UC 176 and (iv) S.P.Chengalvaraya Naidu vs. Jagannath - AIR 1994 SC 853.
Learned counsel for plaintiff relied upon (i) Nasiruddin & ors. vs. Sita Ram Agarwal - 2003 DNJ (SC) 180, (ii) Kailash Chandra vs. Sri Kishan - 1998 WLC (Raj.) UC 273, (iii) Prakash Chand vs. Firm Pohap Singh Kishan Sahai & Ors - 2006 (3) RLR 39, (iv) Jaitoon & Ors vs. Roop Chand - 2007 (1) DNJ (Raj.) 202, (v) Bakhtawar Singh vs. Tikam Chand - 2006 (2) RLR 228.
8. Here it is considered expedient to first reproduce orders passed by the learned trial court on 29/9/2000 determining the arrears of rent due in both these suits because the controversy centers around that. In S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 8/29 suit No.108/1995 (89/2000) Oswal Singh Sabha v. Shyam Lal. The said order was passed on 29/9/2000 in the following terms:
"29-9-2000 वकल य उप 0 । अन र म कक य क न र ण क सबर म पत वल क अवल क ककय । व दगस ज यद द क कक य 50/- मह व ह म क ई ववव द ह ह& । व द 1-1-94 स कक य बक य ह ब य ह& लकक व द पत म यह भ( अभभवच ककय ह& कक प+व म पन व द क पथम ड/फ ल2 क फ यद ददय गय थ । औ उस समय क 600/- भ( बक य ब य। प न म य म ज पव + क6 भ7 बक य ब ई गई ह& व अनन म न णय क वक ड/क6 ह क समय ह न रण ह सक ( ह& । लकक प+व म पथम ड/फ ल2 क फ यद द बब ज भ7 बक य थ( व अब अन र म कक य न र ण म ह ज ड( ज सक ( ह& औ यह भ( सपष ह& कक ज 18-2-
94 क 4542/- जम क व य गय थ क प+व क न र र कक य
प2 जम क व य गय थ औ उसक पशच ? पत वल म
कक य जम क ब ब ? 17-4-95, 23-1-96 क6 ह स(द ह& ।
इसक ब द क ई अद यग( क6 गई ह इस ब ब ? क ई स(द
ह हA। अ : यह भ( ह म सक कक बय ज क6 गण
ह क6 ज व। पर ण मसवरप इस पक ण म अन र म कक य
क न र ण न म पक स ककय ज ह&:-
1-1-94 स 31-8-2000 क
(कल 80 म ह) क कक य 50x80= 4000-00
उक भ7 प 6% द स बय ज =0790-00
-----------------
कल य ग 4790-00
-----------------
उक भ7 म स यदद क ई भ7 पन व द द जम क व द
गई ह व सम य नज क हए 7ष भ7 15 दद म
पन व द व द क अद क व आग म( दय कक य 50/-
मह व क6 द स ह म ह क6 15 ख क पन व द व द
क अद क । व द अग बAक क म फ उक भ7 प प क
चह नय य लय क म फ बAक क म व ख सखय स
पन व द क सच+ च क । पत वल व स A/D व क यम(
ककय दद क 22/11/2000 क प7 ह ।
एस./(.
भसववल नय य र(7 क.ख. एवम
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 9/29 नय नयक मनजसM2, पथम वग ज रप ग ज रप "
9. Similar order was passed on same date 29/9/2000 in Civil Suit No.109/95 - Oswal Singh Sabha v. Mohini Devi in the following terms:
"29-9-2000 वकल य उप 0 । अन र म कक य क न र ण क सबर म पत वल क अवल क ककय । व दगस ज यद द क कक य 50/- मह व ह प क ई ववव द ह ह& । प न व द क कह ह& कक पन व द गण 31-3-93 क पशच ? क ई भ( व द क अद ह ककय ।जबकक पन व द गण क6 ओ स ज कक य जम क क6 स(द प7 क6 गई ह& उ म एक दद क 17-4-95 क6 600/- क6 ह& व ब क6 8-2-91, 25-1-92, 4-2-93, 21-1-94 क6 ह& ।
इस पक 17-4-95 क ब द क6 क ई स(द ह ह& नजसस कक
यह प य ज सक कक इसक प7.च ? ? भ( कक य क6 अद यग(
गई ह अ : बय ज क6 गण ह क6 ज व। अ : इस पक ण
म अन र म कक य न म पक स य ककय ज ह&:-
1-4-93 स 31-8-2000 क
(कल 89 म ह) क कक य = 4450-00
उक भ7 प 6% द स बय ज = 979-00
-----------------
कल य ग 5429-00
-----------------
उक भ7 म स ज भ( भ7 अब क पन व द गण अद क
द ह& व सम य नज क हए 7ष बक य भ7 15 दद म
व द क अद क । आग म( दय कक य 50/- मह व क6 द
स ह म ह क6 15 ख क व द क अद क । यदद व द
बAक क म फ उक भ7 प प क चह नय य लय क
म फ बAक क म एव ख सखय स पन व द क सच+ च
क व। व स A/D व क यम( ककय दद क 22/11/2000 क
प7 ह ।
एस./(.
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 10/29 भसववल नय य र(7 क.ख. एवम नय नयक मनजसM2, पथम वग ज रप ग ज रप "
10. From the perusal of these two orders, it is clear that in the case of Mohini Devi, the rent was determined at Rs.4450/- for 89 months for the period 1-4-93 to 31-8-2000 at the rate of Rs.50/- per month and interest thereon of Rs.979/- at the rate of 6% per annum; totaling to Rs.5429/- and in the case of Shyam Lal, the said amount of rent determined was Rs.4000/- for the period 1-1-94 to 31-8-2000, for 80 months at the rate of Rs.50/- per month and interest thereon of Rs.790/-, totaling to Rs.4790/-. The said orders duly take note of receipts of rent already deposited by the defendants but also allows them to pay the balance amount after adjustment of rent already deposited, within 15 days from the date of the order. The contention of defendants against levy of interest was specifically negatived by the Court.
11. It is not in dispute that the amount of interest was paid in both the cases by the defendant-tenants on 9/1/2001, Rs.979/- vide Ex.A/11 in case of Mohini Devi and Rs.790/- vide Ex.A/9 in the case of Shyam Lal. This is also not in dispute that both these defendants S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 11/29 paid the interest without seeking any extension of time from the learned trial court on the said date 9/1/2001. The amount of rent already paid by the defendants towards rent was directed to be adjusted by the learned trial court in the said order dated 29/9/2000 determining the arrears of rent. There is also no dispute that the order dated 29/9/2000 was never challenged by the defendant-tenants by undertaking any proceeding either before the trial court or before higher court.
12. In order to decide the controversy regarding effect of non- payment of rent or interest as determined by the trial court under Section 13(3) of the Act, it will be appropriate to reproduce Sec.7 and Section 13 of the Act:
"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 concerned 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 S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 12/29 commencement of the tenancy a suit under Section 6 on the ground of the rent agreed upon being excessive relate 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 amount paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed."
Section 13. Eviction of tenants-(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree; or make any order, in favour of a landlord, whether in execution of a decree or otherwise, eviction the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied-
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or
(b) ...........
(c ) ...........
(d) ...........
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 13/29
(e) ...........
(f) ...........
(g) ...........
(h) ...........
(i) ...........
(j) ...........
(k) ...........
(l) ...........
(2) The Court may presume that premises let for use as a residence were or are sub-let by the tenant in whole or in part to another person, it it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period exceeding one month otherwise than in commensality with the tenant.
(3) 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 per cent per annum from the date when any such amount was payable upto the date of determination.
Provided that while determining the amount S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 14/29 under this sub-section, the Court shall not take into account the amount of rent which was barred by limitation on the date of filing of the suit.
(4) The tenant shall deposit in Court or 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 subsequently to the period upto 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). (5) If tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.
(6) 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.
Provided that a tenant shall not be entitled to pay 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.
(7) If in any suit referred to in sub-section (3), there is any dispute as to the amount of rent payable by S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 15/29 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 is 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 future rent payable by the tenant.
(9) Where any decree or order for the eviction of a tenant is made on the ground specified is sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of two months from the date of the decree or order."
13. Thus Section 13 provides all mechanism, contingencies and consequences and is a complete code about eviction and payment of rent, its arrears, interest thereon etc. Sub-sec.(4) of Section 13 clearly S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 16/29 provides that the tenant shall deposit in court or pay to the landlord the amount determined by the Court under sub-sec.(3) within 15 days from the date of such determination or within such further time not exceeding 03 months as may be extended by the court. The first part of sub-sec.(4), therefore, deals with the arrears of rent and interest thereon as determined by the Court, to be paid within 15 days or within such extended time not exceeding 03 months from the date of determination. The second part of sub-section (4) mandates the tenant to continue to deposit month-by-month the monthly rent subsequent to the period up to which determination has been made by the Court, by 15th of each succeeding month. One point which was raised by learned counsel for the defendant was that extension of time can be up to 03 months after first 15 days as prescribed in the first part is over and therefore, in totality, 105 days can be granted by the court for payment of arrears of rent and interest. In the opinion of this court, this is not so. The words "within such further time not exceeding 03 months" has to reckoned from the date of determination by the Court, which in the present case was 29/9/2000. First 15 days was granted by the statute itself but the further extension of time depends up the court's discretion, which could be granted upon S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 17/29 proper reasons being shown in the application by the defendant seeking such extension. The discretion of the court is limited to grant such extension on one or more occasions upon proper reasons for seeking such extension being shown by the defendant but the period of extension can not extend beyond 03 months to be reckoned from the date of determination by the court. The words "further time" has to be read in the context of and as overlapping the first period of 15 days prescribed in sub-sec.(4) and such further time or extension in other words can not exceed a period of 03 months, which period of 03 months has to be reckoned from the date of determination. The word `further' would mean `added' to the previous period of 15 days but three months cap is the outer limit commencing from the date of determination. Therefore, the starting point of both the periods 15 days granted in sub-sec.(4) or period of extension of 03 months depending upon the discretion of the Court, both have to be reckoned from the date of determination under Section 13(3) of the Act, under which such determination has to be made in case a suit for eviction is filed on the ground of default in payment of rent under Sec.13(1)(a) of the Act. The words `from the date of determination' is the focal point of commencement of period of both tenures viz. 15 days or S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 18/29 three months in the said provision.
14. The consequence of non-compliance with the order passed under Section 13(3) of the Act is provided in sub-sec.(5) of Section 13 of the Act that if a tenant fails to deposit or pay any amount referred to in sub-sec.(4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.
15. Firstly, it may be stated that failure to deposit or pay `any amount' includes the amount of interest also, besides rent. The words 'any amount' would obviously cover arrears of rent as well as interest as may be determined by the Court as also further monthly determined rent to be paid by the tenant. Thus, the amount of interest partakes the character of rent as far as Section 13(3) is concerned and failure to pay interest will also result in the consequence as provided under sub-sec.(5) even though rent in question has been paid within time prescribed under Section 13(4) of the Act and the consequence is that the defence is struck out and the Court proceeds for hearing of the suit. Once the defence of the defendant is struck out, for which S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 19/29 not even an application is envisaged by sub-sec.(5) by the plaintiff- landlord but duty is cast on the court as the words used are "the court shall order defence against eviction to be struck out". The eviction decree on the basis of allegations of plaintiff is bound to ensue, there being no escape in the cases of second default, vide proviso to sub- section (6) of Section 13 of the Act.
16. If the tenant makes deposit or payment of arrears of rent, interest and regular monthly rent as required by sub-sec.(4) no decree on the ground specified in clause (a) of sub-sec.(1) Section 13 of the Act can be passed against the tenant. This is so provided in sub- section (6) of Section 13 of the Act. The proviso to sub-section (6) further mandates that if it is a second default of any kind and benefit of first default has already been obtained by the tenant, such benefit would not be granted in case of second default.
17. As far as present case is concerned, since no extension of time was even sought by the defendant-tenants, the deposit of arrears of rent and interest could be made by the tenant only within fifteen days from the date of determination i.e. 29/9/2000. Fifteen days computed S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 20/29 from 29/9/2000 had expired on 14/10/2000. The deposit of interest was admittedly made by the defendant-tenants on 9/1/2001 vide Ex.A/11 in the case of Mohini Devi and Ex.A/9 in the case of Shyam Lal, much after the expiry of 15 days from the date of determination. The appellant-defendants could not have treated the order passed by the learned trial court on 29/9/2000 determining the rent under Section 13(3) of the Act as void ab initio and assuming that to be so, could have ignored it. If that order was wrong according to defendants for any reason it was incumbent upon the appellant- defendants to challenge the same and get it set aside or corrected. Having failed to do so, the appellant defendants cannot contend that despite deposit of interest by them on 9/1/2001 in accordance with said order dated 29/9/2000, the same should be treated as void ab initio and ignored for all purposes, or that interest was not at all leviable.
18. Whether interest was rightly levied or not, is not the question to be determined at this stage. That was the stage when suit itself was decided on 7/10/2003 as per Section 13 (7) & (8) of the Act. The order dated 7/10/2003 of trial court does not say anything about S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 21/29 wrong levy of interest in the order dated 29/9/2000 passed under Section 13(3) of the Act. It does not refer to the said order dated 29/9/2000 at all. The order dated 29/9/2000 clearly took note of rent receipts already placed on record and negativing defendant's contention against levy of interest, determined the amount of interest, which was ultimately even paid by the defendants, albeit belatedly. If according to defendant tenants no interest was leviable because the rent already stood paid in advance, they ought to have challenged the order of determination under Section 13 (3) of the Act passed by the learned trial court on 29/9/2000. Having allowed that order to become final and not assailing the same, that order was only required to be complied with, which in fact the defendant tenants complied with. The deposit of interest by the defendant tenants on 9/1/2001 demolishes their own claim of advance deposit of rent and non liability of any interest in the present case. If no interest was payable, why did they pay it and why did they not challenge the order dated 29/9/2000 at all. Thus, there is no substance in the theory of advance deposit of rent by defendants under Ex.A-1 to Ex.A-10. Equally wrong it is to say on the part of defendants that plaintiff had approached the Court with a false case.
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 22/29
19. Though no extension of time was even sought by the defendants in the present case for payment of arrears or interest, even assuming for argument sake, the period of three months from the date of determination of 29/9/2000 would also expire on 28/12/2000. Thus, even if the defendant tenants had sought extension of time and assuming for the sake of arguments that it could be granted by the trial court, then also such extension of period could not exceed beyond 28/12/2000, but the date of deposit of interest in the present cases is 9/1/2001 which is beyond the maximum period of extension which could be granted by the learned trial court under Section 13(4) of the Act. It is also equally true that extension beyond the period prescribed of 15 days or three months, as the case may be, was not even possible as laid down by Hon'ble Supreme Court in case of Nasiruddin vs. Sita Ram Agarwal (supra). It would be appropriate to reproduce relevant part of decision of Hon'ble Supreme Court in this regard. In para 36 & 37 of the judgment, the Hon'ble Supreme Court has held as under:
"36. In a case where the statutory provision is S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 23/29 plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. In E.Palanisamy vs.Palanisamy (Dead) by Lrs. & Ors, (2003) 1 SCC 122, a Division Bench of this Court observed:-
"........The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters....."
37. It is also pertinent to note that the Rent Control Act is a welfare legislation not entirely beneficial enactment for the tenant but also for the benefit of landlord. (See: Shri Lakshmi Venkateshwara Enterprises Pvt. Ltd. vs. Syeda Vajhiunnissa Begum (Smt.) & Ors. (1994) 2 SCC 671). In that view of the matter, balance has to be struck while interpreting the provisions of the Rent Act.
20. Then in para 41 to 47 the Hon'ble Apex Court dealing with the provisions of Rajasthan Act itself held that Section 5 of the Limitation Act does not apply for extension of time under Section 13 (4) of the Act, therefore, no such extension was possible beyond the period prescribed under the Act.
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 24/29
41. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so.
42. In that view of the matter it must be held that in absence of such provisions in the present Act the court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent.
43. Coming to the second question, we are of the view that Sec.5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant u/s.13(4) of the Act.
44. It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Sec.5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant.
45. Section 5 of the Limitation Act reads under:-
"5.Extention of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of O.XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
46. On perusal of the said Section it is evident that the question of application of Sec.5 would arise where any appeal or any application may be admitted after the S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 25/29 prescribed period, if the appellant or the applicant satisfied the court hat he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction o the ground set forth in Cl.(a) of sub-sec.(1) the tenant shall on the first date of hearing or on or before such date, the Court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in Court as determined under sub-sec. (3) from the date of such determination or within such further time not exceeding three months as may be extended by the Court. Thus, sub-section(4) itself provides for limitation of a specified period within which the deposit has to be made, which cannot be exceeding three months as extended by this Court.
47. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Sec.5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Sec.5 cannot be extended where the default takes place in complying with an order under sub-sec.(4) of Sec.13 of the Act.
22. About the need to comply with the order passed by the Court of Law, Apex Court observed in para 48 of the judgment that compliance of the order passed by the Court of Law in terms of statutory provisions does not give rise to cause of action and the failure to comply with the order, the consequences have to follow. Relevant part of para 48 is as under:-
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 26/29 "48. ..........Compliance of an order passed by a Court of Law in terms of a statutory provision does not give rise to a cause of action. Failure to comply with an order passed by a Court of Law instant consequences are provided for under the Statute.
The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that Sec.5 of the Limitation Act, 1963 has no application in the instant case."
23. Thus, in view of aforesaid Supreme Court decision, the learned first appellate court cannot said to have erred in holding that on account of delayed payment of interest vide Ex.A/11 & A/9 on 9/1/2001 as it constitutes second default on the part of appellant- defendants in both the appeals and, therefore, eviction decree was liable to be passed.
24. In the opinion of this Court, Section 7(4) of the Act providing for the consequence of eviction in case provisional rent determined under Section 7(3) of the Act, is not paid by the tenant further supports this conclusion. The non-compliance under Section 13(4) of the Act by non-payment of arrears of rent or interest, which can be construed to be a more serious default, comparatively speaking, cannot entail any lesser consequence. There is no need to take an S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 27/29 unnecessarily biased and tilted view in favour of tenants, in such situation lest it encourages default after default in payment of rent, whereas legislature did not permit any such leniency in cases of second default. To correct such and other imbalances only old Rent Control Act, 1950 has been repealed and replaced by the new Rent Control Act, 2001 which now applies in all municipal towns of the State of Rajasthan. The rent in the present cases was determined way back on 29/9/2000 @ Rs.50 p.m. on the basis of last rent paid by tenant, which itself is considered to be abysmally low and, therefore, this Court proposes to enhance the mesne profits to Rs.1000/- per month commencing from January, 2009.
25. Therefore, this court is of the considered opinion that the appellant defendants failed to comply with the order of learned trial court dated 29/9/2000 and having complied with such order belatedly by depositing the interest on 9/1/2001 the eviction decree was liable to be passed against the appellant defendants in terms of ratio laid down in the decision of Hon'ble Apex Court in the case of Nasiruddin vs. Sita Ram Agarwal (supra) and the same was rightly applied by the first appellate court in the impugned judgment dated S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 28/29 29/10/2004.
26. Consequently, these appeals are found to be devoid of merit and same are accordingly dismissed. No order as to costs.
27. The appellant defendants shall handover vacant and peaceful possession of the suit premises to the plaintiff respondent within two months from today. If the appellant defendants fail to handover vacant and peaceful possession of the suit premises within two months as aforesaid or if the appellant defendants fails to pay mesne profit to the plaintiff respondent @ 1000/- p.m. commencing from January, 2009 till the actual handing over of vacant and peaceful possession of the suit premises to the plaintiff respondent before 15th of succeeding month, the plaintiff shall not only be entitled to execute the decree of eviction but the defendants may also render themselves liable to be proceeded against under contempt law.
28. The Court appreciates the good legal arguments raised by all the three learned counsels who appeared and addressed the Court in this matter.
S.B.CIVIL SECOND APPEAL NO.17/2005-Smt. Mohini Devi & Ors. vs.Oswal Singh Sabha S.B.CIVIL SECOND APPEAL NO.13/2005-Shyam Lal vs. Oswal Singh Sabha DATE OF JUDGMENT : .7th January, 2009 29/29 (DR.VINEET KOTHARI), J.
item no.26 & 27 baweja/-