Rajasthan High Court - Jodhpur
Lrs Of Kanhaiya Lal vs Gajendra & Ors on 27 January, 2017
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Second Appeal No. 161 / 2016
Legal Representatives of Kanhaiya Lal s/o Shri Amba Lal, by caste
Tak, r/o Merta City:
1. Shanti Devi
2. Basanti Devi
3. Ratni Devi
All d/o Late Shri Kanhaiya Lal, by caste Tak, r/o Ghana Marg, Near
Sardaji Bhawan, Merta City, Tehsil Merta, District Nagaur (Raj.)
----Appellants/Defendants
Versus
1. Gajendra s/o Shri Gyan Chand
2. Hemant s/o Shri Gyan Chand
3. Pushpa Kumari w/o Shri Gyan Chand
All by caste Jain (Dudhediya), r/o Dhadiwalon Ka Mohallah, Merta
City, Tehsil Merta, District Nagaur (Raj.)
----Respondents/Plaintiffs
_____________________________________________________
For Petitioner(s) : Mr.O.P.Mehta
For Respondent(s) : Mr.S.L.Jain, Mr.Vishal Sharma
_____________________________________________________
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Judgment 27th January, 2017
1. The appellants have preferred this second appeal aggrieved by order dated 09.08.2012 passed by Civil Judge (Junior Division) Merta City, vide which the court has decreed the suit of the plaintiffs-respondents and order dated 10.05.2016 passed by Additional District Judge, Merta, whereby the appellate court partly allowed the appeal filed by the appellants, but upheld the decree of eviction on the ground of default.
(2 of 8) [CSA-161/2016]
2. It is contended by counsel for the appellants that the suit was filed on the ground of default and material alteration. The court below decreed the suit only on the ground of default and the appellate court has also upheld the decree on the ground of the defendant committing default. It is contended by counsel for the appellants that in the suit, rent was claimed from Magh Badi 1 Samwat 2053 and the period of default in the suit was mentioned as ten months sixteen days. The suit was filed on 01.12.1997. It is further contended that the appellant-defendant sent the rent by money order for the period from February, 1997 to May, 1997, but the same was refused by the landlord, and therefore, the appellant deposited the rent in court on 04.09.1997 and the same being valid tender and deposit, the decree passed by the court below is bad in law.
3. It is further contended by counsel for the appellants that since the rent was deposited prior to filing of the suit, there was no default and both the courts below have committed error in law in decreeing the suit on the ground of default. Counsel for the appellants has also drawn my attention towards Ex.20, which is money order receipt, wherein it is mentioned that the rent for the months of February, 1997 to May, 1997 Rs.2000/- is being sent. There is a note of refusal on the said receipt. Ex.21 is the receipt, vide which the amount was sent by money order.
4. It is also contended by counsel for the appellants that since the appellant has tendered the rent, there was no default and therefore, the courts below have erred in striking out the (3 of 8) [CSA-161/2016] defence of the defendant. It is further contended that after the landlord refused to accept the rent, the same was deposited under Section 19A of the Rent Control Act on 04.09.1997. Thus, six months' rent was not due on the date of filing of the suit. It is also contended that the plaintiff-respondent was required to prove the factum of default of six months and merely because, the defence was struck off, the court could not have decreed the suit without there being evidence of default.
5. In support of his contentions, counsel for the appellants has placed reliance on the following judgments:-
(a) Fakir Mohd. (Dead) by LRs. Vs. Sita Ram, 2002 WLC (SC) Civil Page 96.
(b) Smt.Manak Bai & Ors. Vs. Kalyan Bux - (143), RLR 1989(2) 704.
(c) Kanhaiya Lal Vs. Sampat Raj Kothari, 2000(1) WLC (Raj.) 508.
(d) Mohanlal Vs. Lakhekhan, 1972 WLN Part I 753.
(e) Kalyan Mal Vs. Shakuntala Devi (151), RLW 1988(2)
584.
(f) B.B.Bhalla Vs. Rameshwar Kishore Badhwar, 2001 DNJ (Raj.) 298.
6. Counsel for the respondents have opposed the second appeal. Their contention is that no substantial question of law is made out in this case. The rent was to be deposited according to the Hindi Calendar, and as the same was not tendered properly, the same was not accepted. It is further contended that since the (4 of 8) [CSA-161/2016] defendant has deposited the rent in court without following the procedure prescribed under Section 19A, the same cannot be termed as a valid deposit, as the appellant has not sought the bank account number before depositing the rent. It is further contended that the tenant has not deposited the rent after determination by the court and has committed defaults on various occasions. Therefore, the striking out of defence of the tenant was in accordance with law and since the defence of the appellant was struck off, the courts below have rightly decreed the suit.
7. Counsel for the respondents have placed reliance on the following judgments:-
(a) Bhanwarlal Vs. Champalal, 1978 0 RLW (Raj.) 562.
(b) Ganesh Daroga Vs. Smt.Beena Kumari & Anr., 1996 (3) RLW (Raj.) 283.
8. I have considered the arguments advanced and have perused the rulings cited before me.
9. Fakir Mohd. (Dead) by LRs. Vs. Sita Ram (supra) was a case where the provisions of Section 19A were interpreted by the Apex Court and it was observed that the tenant can pay the rent by either of the modes provided under Section 19A i.e. personal payment, remitting the rent by postal order and depositing the rent due in the Bank.
10. Smt.Manak Bai & Ors. Vs. Kalyan Bux (supra) was a case where the High Court held that if the tenant acts in any of the modes provided under sub-section (3) of Section 19A, he can escape liability from eviction on the ground of default in payment (5 of 8) [CSA-161/2016] of rent under Section 13, in view of sub-section (4) of Section 19A of the Act.
11. In Kanhaiya Lal Vs. Sampat Raj Kothari (supra), the Court observed that if the tenant sends the rent by money order, it is not obligatory for him to adopt other methods provided under Section 19A.
12. In Mohanlal Vs. Lakhekhan (supra), the Rajasthan High Court has observed that even after striking off the defence, the plaintiff has to prove his averment to entitle him of a decree for eviction.
Similar was the view taken in Kalyan Mal Vs. Shakuntala Devi (supra).
13. In B.B.Bhalla Vs. Rameshwar Kishore Badhwar (supra), the Court observed that it was incumbent upon the plaintiff/landlord to lead the evidence that the defendant/tenant had neither paid nor tendered the amount of rent due from him for six months and he was a defaulter. It has been further observed that even if the evidence of the tenant has been struck off, it was necessary for the plaintiff to establish his case by adducing evidence that the defendant was a defaulter.
14. From document Ex.1, it is apparent that the rent was paid @ Rs.500/- per month according to the Hindi calender. From the documents submitted by the appellant relating to sending of rent by money order Ex.20, it is apparent that the rent was sent for the months of February, 1997 to May, 1997, but the same was not sent according to the Hindi calendar. Therefore, the landlord was justified in refusing to receive the rent, which was not paid in (6 of 8) [CSA-161/2016] accordance with the Hindi calendar. The rent was also not deposited by the appellant in accordance with the Hindi calendar, but the rent for the months of February, 1997 to July, 1997 was deposited on 04.09.1997 in accordance with Gregorian calender.
15. The contention of counsel for the appellant that the appellant has tendered the amount of rent and also deposited the same, and therefore, there was no default, do not have any force, because sub-section (1) of Section 19A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 provides that the tenant shall pay rent within the time fixed by the contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.
16. Since the tenant has agreed to pay the rent in accordance with the Hindi calendar, he was bound to pay the rent within the time fixed by the contract. Any payment made by him, which was contrary to the contract, was not a valid tender, and therefore, the contention of counsel for the appellant that the appellant has tendered the amount of rent, cannot be accepted.
17. Similarly, the deposit of rent in the court cannot be considered as a valid deposit because the same was also not deposited in terms of the contract. Both the courts below have therefore, not erred in decreeing the suit of the plaintiff/respondent on the ground of default.
18. The other contention of counsel for the appellant is that the plaintiff was required to prove the default, and in absence of the proof, the court should not have presumed the factum of default. This argument also does not have any basis, as the (7 of 8) [CSA-161/2016] plaintiff appeared in the witness box and specifically stated that the rent was payable in accordance with the Hindi calendar, and that on the date of filing of the suit, the rent was due from Magh Badi Ekam Samwat 2053 to Migsar Badi Ekam-Dooj Samwat 2054 i.e. 10 months 16 days.
19. Further, it is important to note that the appellant did not deposit the rent in time, even after determination and subsequent rent was also not deposited within time. The defence against the eviction was therefore, rightly struck off.
20. In view of the discussions made hereinabove, it is apparent that the plaintiff had led evidence in support of the factum of defendant committing default. The defendant had not made a valid tender and had not deposited the rent in accordance with the contract with the landlord. Therefore, the rulings cited by counsel for the appellant do not apply to the facts of the present case.
21. Counsel for the respondent has placed reliance on Bhanwarlal Vs. Champalal (supra), wherein the Rajasthan High Court has held that where there was no dispute between the parties regarding the calendar month, rent was payable according to Hindi Samwat and on defendant's failure to pay rent according to Hindi Samwat, his defence was liable to be struck off, though he may have paid the rent every month according to Gregorian calender.
22. Ganesh Daroga Vs. Smt.Beena Kumari & Anr. (supra) was a case where the Court observed that after determination of rent, its deposit is to be made within the (8 of 8) [CSA-161/2016] statutory period and the same is mandatory. It has been further observed that if there is persistent default in payment of rent, Section 13(5) gets attracted and the defence is liable to be struck off.
23. No substantial question of law is therefore, made out in the present second appeal and the same deserves to be dismissed.
24. Consequently, the present second appeal is dismissed. The stay application also stands disposed. The record of the court below be returned forthwith.
(PANKAJ BHANDARI)J. Skant/-