Sbcsa No.292/1994 - L.Rs Of Late Kishna ... vs . Smt. Manju Lata on 29 April, 2015

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Rajasthan High Court - Jodhpur

Sbcsa No.292/1994 - L.Rs Of Late Kishna ... vs . Smt. Manju Lata on 29 April, 2015

1. The defendant-tenant-Kishna Ram @ Kishan Lal s/o Moti Ram Ji, who unfortunately died during the pendency of present second appeal on 2/9/2013 and is now represented by his legal representatives, namely; Smt. Saraswati (wife), Anand Kumar & Om Prakash (sons) and Smt. Sumitra w/o Bhoma Ram Prajapat (Daughter), had filed the present second appeal on 19/11/1994 against the plaintiff-respondent-landlady Smt.Manju Lata w/o Madan Mohan Ji Chhipa being aggrieved by the concurrent decree of eviction given by the two courts below in respect of the suit house situated near Shiv Mandir, Ratanada, Jodhpur.

2. The tenancy was created in favour of the defendant-tenant- SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 2/48 Kishna Ram on 7/6/1979 through the Rent Note executed by him in favour of landlady Smt. Manju Lata @ Rs.65/- per month, which he paid regularly upto 7/1/1980 as per the endorsements made on the backside of the Rent Note and, thereafter, he stopped payment of rent. The eviction suit was filed by Manju Lata, who purchased the said suit property from one Nirmala Devi by registered sale deed dated 8/9/83 (the sale took place on 5/6/1979 but sale deed was executed on 8/9/83, as stated in the Sale Deed Ex.2) for Rs.40,000/- and after such purchase, the aforesaid rent note was executed by Kishna Ram in favour of Manju Lata on 7/6/1979 only in respect of one room outside the said residential house in which besides two shops on the road side, two other rooms, Kitchen & chowk were also there. The tenants of these two other shops also started paying rent to the purchaser Smt. Manju Lata upon statutory attornment in her favour of the said property by Smt. Nirmala Devi but despite Rent Note executed by him, after six months he stopped paying rent to the landlady. The eviction suit was filed on the grounds of default in payment of rent, denial of title of landlady, bonafide need of the suit premises for the landlady and her family members, material alterations made in the suit property without the consent of the landlady and nuisance caused by the tenant by the noise of the sewing machines on which he worked as a Tailor.

3. The defendant-tenant contended before the learned trial court that he was not a tenant of said one room of the residential house but owner of the entire house and thus he denied the sale deed executed by Smt. Nirmala Devi in favour of Smt. Manju Lata on SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 3/48 8/9/1983 (actual sale took place on 5/6/1979) & the Rent Note executed by himself in favour of purchaser Manju Lata and took a stand before the trial court that in fact the entire house was purchased by him along with his brother way back on 25/3/1969, which was partitioned between these two brothers and he made a conditional sale for only three years with mortgage in favour of Smt. Nirmala Devi for Rs.17,500/- on 5/6/1974 vide Ex.19 but since he repaid the said amount of Rs.17,500/- to Smt. Nirmala Devi on 4/5/1977, therefore, any further alleged sale by Smt. Nirmala Devi in favour of the present landlady Smt. Manju Lata was void and nonest and the title of the property did not vest in Smt. Manju Lata and, therefore, there was no question of payment of rent to her or denial of her title, or relationship of landlady and tenant qua Smt. Manju Lata and, therefore, the eviction decree cannot be passed against him.

4. The learned trial court, however, in the present eviction suit determined the provisional rent under Section 13(3) of the Rent Control Act, 1950 on 21/9/1987 and appeal against which filed by Kishna Ram was also decided by the appellate court on 17/5/1988 and while defendant tenant Kishna Ram was directed to deposit the arrears of rent & continue to deposit the monthly rent but the landlady Smt. Manju Lata was restrained from withdrawing the said rent from the court. The defence of the defendant tenant against eviction was struck off in terms of Section 13(5) on 28/5/1991 since Kishna Ram did not comply with the said order & paid the rent and the appeal filed by the defendant tenant Kishna Ram against the SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 4/48 order dated 28/5/1991 was also dismissed by the learned appellate court of Addl.District Judge No.2,Jodhpur on 14/1/1993. The eviction suit was ultimately decreed by the trial court deciding the various issues in favour of the plaintiff on 3/3/1994 on the basis of plaintiff's evidence.

5. The relevant findings of the learned trial court in the order dated 3/3/1994 are quoted below for ready reference:-

"3. उभय पकक र क अभभवचन क आध र पर द न क 20.11.87 क भनम पक र तनक य त क यम क गई ह।

(3)आय पभतव ! दकर य अ यक म" वभतकम! ह?

(4)आय पभतव ! न व !न! क सवतव स इनक र दकय ह?

(5)आय पभतव ! न व गसत पररसर म" भ,न व !न! क सहमभत क स रभ-त पररवत.न दकय ह?

(6)आय व !न! क व गसत पररसर क सवय एव सवय क पररव र क भ0य य1भ2य12 एव स भ वन प-र. आवशयकत ह?

(7)आय व गसत पररसर ख 0! ह न य न ह न स दकस पक क अपक क6 त अभधक कर7न ई ह ग!?

(8)आय पभतव ! न व गसत पररसर क भ,न व !न! क सहमभत क (उपय ग) , 0 द य ह?

(9)आय पभतव ! व उसक पत! न व गसत पररसर म" नय-सनस प क ह? (10)अन1त ष

4. व ! न अपन व पत क समर.न म" सवय प!.डब0-. 1 श!मत! मज-0त , प!.डब0- 2 भनम.0 , प!.डब0- 3 क0 श एव प!. डब0- 4 म न म हन क ,य न करव य ह एव दकशन र म द र व द न! क हक म" भ0ख! गई भ ड भचट! प श. 1 प श. 2 ,च नन म ज भनम.0 व! न व द न! क हक म" भ0ख । पभतव ! द र क 1 न र क भवरद सवय क मक न म भ0क कहत हए दकय गय व क पम भरत पभतभ0भपय प श. 3 स प श. 6, पभतव ! द र व !न! पर पतरर फक ज न क म1क म क नक0 प श. 7, व !न! द र क गई च र! क ररप र. प श. 8, व द न! द र दकशन र म क भवरद क गई म रप!र क फ.आई.आर. क नक0 प श. 9, इसक ड करर! सररदफकर प श. 11 व प श. 12, पभतव ! द र सवय क मक न म भ0क ह न ,त त SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 5/48 हय दकय गय व क नक0 प श. 20, एव इनहK व क सम,नध म" व !न! द र पकक र ,न न , दकर य र द र द य गय जव , एव स

- र! रखव सत प श. 13 स प श. 18 ह एव दकशन र म द र भनम.0 व! क हक म" दकय गय सशत. ,य न प श.

19 प रशत करव य गय ह।

5. इस पकरर म" द न क 21.9.87 क असर ई दकर य भनध .रर दकय गय । पभतव ! द र दकर य नहK जम कर न पर द न क 28.5.91 क पभतव ! क , ख0! क भवरद पभतरक ख ररज दकय ज न क आ श द य गय र। अत:

पभतव ! अपन! स कय पश करन स वभचत ह गय ।

पभतव ! न अपन जव , व क मज! उजर त म" भनम.0 व! क हक म" सशत. ,च नन म भ0खन सव!क र दकय ह परनत1 इसक शतQ क अन1स र 4.5.77 क च1कत! र भश जररय रस! भनम.0 व! क अ करन एव ,च नन म ,असर ह ज न क तथय पभतव ! भसद करन म" असफ0 रह हS तर आज द न क तक प श. 19 एव प श. 2 आभसततव म" ह न प य ज त ह एव सकम अभधक ररत व 0 नय य 0य द र ,असर घ भषत नहK दकय गय हS अत: उ2 नय य ष

6 त म" पभतप द त भसद नत क आध र पर इन सत वज एव व द न! एव उसक गव ह क ,य न क पक श म"

मक न म भ0क दकर य र क सम,नध ह न प य ज त ह एव ज, यह सम,नध आभसततव म" ह त पभतव ! क जव , व स ह! सवतव स इनक र दकय ज न सवत:

भसद ह। अत: यह तनक न,र ,हक व ! भवरद पभतव ! भनररत क ज त! ह।

तनक न,र एक क भसद करन क भ र व ! पर र । इसक , र म" व ! न व पत म" अदकत दकय ह दक द न क 7.6.79 स पभतव ! क एक रस ई, एक कमर व मक न क क 1 न दकर य पर ! गई र!, भजसक दकर य भचट! भ! 7.6.79 भ0ख! गई, इन 7 व म" स रस ई, क 1 न क कबज पभतव ! न व ! क सVप द य ह। अत: पभतव ! क प स अ, एक कमर दकर य पर ह ज मक न म" उतर! प-वW क न पर आय हआ ह भजसम" पभतव ! 65/- रपय म हव र क दकर य र ह।

मक न क 0ट!न, , ररम, चYक ,रणड व ! एव पभतव ! क स म0 भत ह भजसक दकर य 7.1.80 स ,क य ह।

इसक भवपर!त पभतव ! न जव , व म" करन दकय ह दक पभतव ! व द न! क कभ! भ! दकर य र नहK रह न ह! पभतव ! न व द न! क हक म" 65/- रपय म हव र क दकर य भचठ! भ0ख!।

इसक सम,नध म" प!.डब0-. 1 मज-0त न अपन ,य न म" ,त य ह दक पभतव ! क ग0! म" ज कमर आय हआ ह वह दकर य पर द य गय र तर दकर य 65/- रपय म हव र! ह। भ ड भचठ! भ0ख! व प श. 1 ह भजसपर ए स ,! हसत कर दकशन र म क ह ज मर स मन दकय र। भ ड भचठ! भ0ख! उस समय क 1 न" एव एक कमर दकर य पर द य गय र , , म" उसन एक कमर ह! दकर य SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 6/48 पर रख । दकर य त र । उसक अ यग! वह ख1 भ ड भचठ! क प1शत पर करत र ज प श. 1 पर स! स ड! ह व उस पर दकशन र म क हसत कर इ स एफ ह।

भ ड भचठ! क प1शत पर ज दकर य ज. ह उसक , क दकर य मन पभतव ! स म ग र परनत1 उसन नहK द य । इसक पभत पर!क क Yर न यह तथय ह 0 दक आय ह दक पभतव ! क कमर क, दकर य पर द य इसक त र!ख भमभत य नहK तर दकतन समय ह गय मS नहK ,त सकत!।

प!.डब0- 4 म न म हन न भ! व द न! क ,य न क प1भष क ह दक सन\ 1980 स व द न! क पभतव ! न दकर य न ,न कर द य तर इसक पभतपर!क क Yर न व गसत पररसर 1978 म" पभतव ! क दकर य पर द य ज न व दकर य 65/- रपय म हव र ह न ,त य ह। इसक अ0 व इस भ,न - पर दकस! गव ह क ,य न स क ई पक श नहK प य ज त ।

पभतव ! क कस यह नहK ह दक उनह न दकर य च1क द य ह ,भ]क यह ह दक वह दकर य र नहK ह, इसभ0य दकर य च1क न क भयतव नहK ह, च-दक प-व. म"

तनक न,र क भववचन क आध र पर व ! एव पभतव ! क ,!च मक न म भ0क दकर य र क सम,नध ह न प य ज त ह। अत: पभतव ! क दकर य अ करन क भयतव र तर सव!क6 त रप स पभतव ! न दकर य नहK जम करव य ह भजसक प1भष प!.डब0- 1 मज-0त एव प!.डब0- 4 म न म हन क ,य न स ह त! ह। प!.डब0- 1 मज-0त क पभत पर!क क Yर र यदभप व द न! दकर य र! क भवभशष रप स भववरर एव द न क ,त न म" असमर. रह! ह परनत1 प!.डब0- 4 म न म हन ज उसक पभत ह यह तथय सपष रप स ,य न म" ,त त ह। पभतव ! ह 0 दक अपन जव , व 65/- रपय म हव र दकर य भचठ! भ0खन क तथय क इनक र करत ह परनत1 65/- रपय म हव र दकर य भचठ! भ0खन व ! भ! नहK ,त त ,भ]क भ ड भचठ! भ0खत समय कमर , रस ई व क 1 न दकर य पर ह न वररत करत हS, भजसम" , म" पभतव ! न एक कमर ह! दकर य पर रख । इसक प1भष भ! प!.डब0- 1 क ,य न स ह त! ह। अत: पभतव ! दकर य अ यग! म"

वभतकम! ह न प य ज त ह एव च-दक पभतव ! क , ख0! क भवरद पभतरक ख ररज क ज च1क ह अत: वह परम वभतकम! ह न क फ य भ! प प करन क हक र नहK ह। अत: तनक न,र एक ,हक व ! भवरद पभतव ! भनररत क ज त! ह।

उ2 नय य ष 6 नत म" पभत प द त भसद नत क आध र पर व द न! अपन! य1भ2य12 एव सद भवक आवशयकत क भसद करन म" सफ0 रह ह। यदभप उसक पभत पर!क म" यह तथय आय ह। मS अभ! ह ईक र. क 0 न! म" रह रह! हb,- व मर मक न ह परनत1 व द न द र पभत पर!क म" दकय गय इस करन क प!.डब0-. 1 मज-0त एव प!.डब0- 4 म न म हन क समप-र. ,य न क पररपक म" ह! पढ ज न च भहय। प!. डब0- 4 म न म हन न भ! अपन! पभत पर!क क Yर न च1क व! क SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 7/48 दकर य क मक न म" रहन ,त य ह। अत: प!.डब0- 1 मज-0त द र पभत पर!क म"

मर मक न क "त तपय. दकर य क मक न स भ0य ज न च भहय"। मर र य म" सवय क मक न ह न क भसरभत म" उस मक न म" रहन क इचe स भ व! ह! कह! ज यग!। प!.डब0- 1 मज-0त एव प!. डब0- 4 म नम हन क ,य न स त10न तमक अस1भवध भ- सव म! व द न! क ह न क तथय पकर ह त ह भजसक प1भष प!.डब0- 3 क0 श क ,य न स ह त! ह भजसन अपन ,य न म" वररत दकय ह दक मज-0त क ,भfय एव एक 0डक ह सभ! ,f पढ ई करत हS। यद दकशन र म अपन दकर य स1 7 व मज-0त क स1प1 . नहK करत ह त मज-0त क तक0!फ ह! रहत! ह। इस , ,त प!.डब0-. 3 क0 श क ,य न स1दढ ह तर अभधव2 पभतव ! पभतपर!क म"

उस इन तथय स भवचभ0त नहK कर प य ह। भ0ह ज तनक न,र च र व प च ,हक व ! भवरद पभतव ! भनररत दकय जत ह। (The defendant cross examined the plaintiff witnesses on 12/8/1988 &23/5/1989) इस तनक न,र e: क भसद करन क भ र व ! पर र । व पत क करन क समर.न म" इस तनक पर प!.डब0-. 1 मज-0त न अपन ,य न म" कह ह दक पभतव ! दकशन र म न हम र स भ,न प-e कमर म" भस0 ई मश!न क क य. श1र कर द य ह। इसक अ0 व व गसत मक न क उपय ग , 0 द य ज न , ,त दकस! गव ह क ,य न स क ई र शन! नहK भम0त!। एव प!.डब0- 1 मज-0त सवय न भ! अपन ,य न म" यह वररत नहK दकय ह दक व गसत मक न पह0 दकस पय जन स द य गय र एव पभतव ! न दकस पक र मक न क उपय ग , 0 द य ह अरव पभतव ! सस0 ई व भरभjयक पय जन हत1 करत ह अरव घर0- क य. हत1। अत: व द न! यह तनक भसद करन म" असफ0 रह! ह। भ0ह ज यह तनक न,र e: ,हक पभतव ! भवरद व ! भनररत दकय ज त ह।

:: आ श ::

15. व द न! क व भनम पकर स भडक दकय ज त ह:-

(1)व गसत 7 व (एक कमर ज मक न क उतर! प-वW क न म" आय हआ ह) क ख 0! कबज व द न! पभतव ! स प प करन क अभधक ररन! ह ग!, इसक भ0य पभतव ! क म ह क समय द य ज त ह।

(2)व !न! चढ दकर य रपय 2,340/- भ! पभतव ! स प प करन क अभधक र!न! ह ग!।

(3)व गसत 7 व क य-ज एणड ओकय-पशन क र भश रपय 65/- पभत म ह क रस त भम0न कबज व द न! पभतव ! स प प करन क अभधक ररन! ह ग!। (4)खच . पकक र न अपन अपन वहन करग। त न-स र भडक पच . ज र! दकय SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 8/48 ज व।

Sd/-

(य1भधभषर शम ).

अपर म1भसफ एव नय भयक मभजसटर, सखय प च, ज धप1र।"

6. The first appeal No.19/94 - Kishna Ram vs. Munju Lata filed by the defendant tenant against the eviction decree was also dismissed by the learned Addl. District Judge No.2, Jodhpur on 2/11/1994 and the learned first appellate court affirmed the findings of the learned trial court. The relevant extract of the said order is quoted below for ready reference:-

"भवव दक सखय 2:-

"आय पभतव ! न व !न! क सवतव स इनक र दकय ह।"

इसक अध!न ह! भवच रर नय य 0य न भ--सव म! एव दकर य र क सम,नध पर भवच र दकय ह तर इस सर भपत ह न म नकर ह! पभतव ! द र व !न! क सवतव क इनक र करन स इस भवव दक क व !न! क पक म" तय दकय ह। ऐस म" पसत भवत भवव दक सखय ",!" स "इ" क ,न न क क ई आवशयकत नहK रह गई र!। दफर इस आव न पत म" ऐस भवभनर ष रप स स1झ व भ! नह! ह दक भवव दक यह ,न य ज व दक "आय व !न! व पभतव ! क ,!च भ--सव म! एव दकर य र क सम,नध ह।" पसत भवत भवव दक सखय "ए" क क ई आवशयकत नहK हS, कय दक पभतव ! क प स ज एक कमर दकर य पर ह वह भनभoत ह तर यह मक न क उतर! प-वW द श म" आय हआ ह। भवव दक "एफ" व "ज!" क इस पक र क दकर य एव , ख0! क म म0 म" भवरभचत करन क आवशयकत नहK ह, कय दक ऐस ह न पर त य सवतव भनध .रर क व ,न ज यग , अत:

उपर 2 म" भवच र दकय अन1स र भवद न भवच रर नय य 0य न आव नपत ख ररज कर इसक अध!न स1झ य गय भवव दक क रचन नहK क ह त दफर उनक ऐस आ श सह! एव उभचत हS। ज, पभतव ! क , ख0! क भवरद पभतरक ख ररज ह च1क ह, त अ, वह .भ 1 वन स इस आव न पत पर ,0 रह ह, इस सव!क र नहK दकय ज सकत ह।

7. अ, म म0 क ग1र ष पर भवच र करत हS। सव!क6 त रप स SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 9/48 पभतव ! न आरज! तYर पर भनध .ररत दकर य एव म स -न1-म स दकर य जम नहK कर य हS और ऐस ह न स उसक , ख0! क भवरद पभतरक ख ररज क गई ह। आरज! तYर पर दकर य भनध .रर एव , ख0! क भवरद पभतरक क य आ श अप!0गत नय य 0य स क यम रह हS अत: पभतव ! क वभतकम! ह न स भ,त ह। इस , र म" व !न! मज-0त प!.ड. 1 न स कय ! ह और करन दकय ह दक पभतव ! न द न क 7.1.1980 क , स कई दकर य नहK द य ह अत: वभतकम सम,नध! भवव दक सखय एक क भनध .रर सह! हआ ह। पभतव ! इस आध र पर ह! भवव गसत कमर स , ख0! क भ0य य! ह।

8. पभतव ! न जव , व म" सपष रप स व !न! क सव भमतव क च1नYभत कर सवतव इनक र दकय ह। व !न! मज-0त प!.ड. 1 क करन य रह ह दक पभतव ! न ज, मक न दकर य पर भ0य र उस समय भ ड भचट! एकज!. 1 कचहर! म" भ0ख! गई र! इस पर ए स ,! दकसन र म क हसत कर ह भजनह" वह पहच नत हS, यह उसक स मन दकय गय र। उसन भवव गसत मक न भनम.0 व! स कय दकय र , भजसक ,च न न म एकज!. 2 ह इस पर ए स ,! भनम.0 व! क हसत कर ह। पभतपर!कर दकय ज न पर व !न! न यह ,त य ह दक उस यह पत नहK ह दक पभतव ! न मक न म भ0क म नन स क, इनक र दकय । मर मत ह इस पश क क ई आवशयकत ह! नहK र! कय दक जव , व म" पभतव ! न सपष रप स सवतव इनक र! क च1नYभत ! हS। भनम.0 व! प!.ड. 2 न अपन करन म"

भवव गसत मक न क दकसन र म स खर! करन ,त य ह। इसक रभजसट! एकज!.19 हS। स क! क0 श प!.ड. 3 न अपन! स कय म" यह ,त य हS दक दकसन र म क वह पह0 दकर य र र । , म" उसन मज-0त क दकर य न क कह त, उसन मज-0त क दकर य न आरमभ कर द य अ, वह मज-0त क दकर य त हS, उसक प स एक क 1 न दकर य पर ह।

दकसन र म न इस पर दकर य एव , ख0! क म1क म दकय र भज क पभतभ0भप एकज!. 4 हS। इस म" मज-0त क मक न म भ0क म न और यह म1क म ख ररज हआ। म नम हन प!.ड. 4 न यह करन दकय ह दक पह0 त दकसन र म न मज-0त क मक न म भ0क म नन स इनक र नहK दकय परनत1 , म" दकय । अत: इस स कय क आध र पर, ज सत वज स प1भष ह त! ह, मक न म भ0क एव दकर य र क सम,नध ह न स भ,त हS। पभतव ! न दकर य र ह त हय व !न! क सवतव क इनक र दकय ह त दफर इस आध र पर भ! पभतव ! भवव गसत मक न स , ख0! क भ0य य! हS। यह तथय भवव दक सखय 2 क भवषय-वसत1 रह! हS, भजनह" अध!नसर नय य 0य न सह! एव भवभध सममत रप म" तय दकय हS।

SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 10/48 मर मत ह इस असपषत क 0 भ पभतव ! क नहK द य ज सकत ह। स क! क0 श प!.ड. 3 मज-0त क ह ईक र. क 0 न! म" दकर य क मक न म" रहन ,त य ह। पभतपर!कर पर उसन ,त य ह दक यद ह ईक र. क 0 न! व 0 मक न मज-0त क पभत क ह त उस पत नहK हS।

स1झ व यह नहK ह दक यह मक न मज-0त क सव भमतव क हS। उसक पभत म न म हन प!.ड. 4 न च1क क मक न म" दकर य म" रहन ,त य ह और पभत-पर!कर दकय ज न पर भ! इस! तथय क प1न: ,त य ह। अत: ज, व !न! दकर य क मक न म" रह रह! ह त दफर उसक अपन मक न म"

भनव स करन य1भ2य12 एव स भ वन प-व.क आवशयकत क पकर करत हS। स1झ व यह नहK ह दक व !न! दकर य ,ढ न च हत! ह अरव उसन यह व पभतव ! क परश न एव तग करन क भ0य पसत1त दकय ह। त न1स र इस स कय स उसक य1भ2य12 एव स भ वन प-व.क आवशयकत स भ,त ह त! ह। भवव गसत पररसर क ख 0! नहK ह न पर उस पभतव ! क म1क ,0 म"

अभधक कर7न ई ह ग!। एक कमर क भवभ जन भ! नहK ह सकत ह भजसस उस प-र पररसर क आवशयकत हS। इस पर भ! भवद न अध!नसर नय य 0य न स रगरभत रप म" भवच र दकय हS और भनक 0 गय भनषकष. दकस! भ! पक र स अन1भचत नहK ह।

11. अभनतम, , ख0! क आध र नय-सनस क हS। इस सम,नध म" मज-0त प!.ड. एक न अपन करन म" यह ,त य ह दक पभतव ! द न भर भस0 ई मश!न च0 त हS, भजसस ववध न ह त ह। ऐस ह न स आर म स स नहK सकत, ,7 नहK सकत और ,f क पढ ई भ! नहK ह त! हS। पभतव ! दकसन र म न उनक स र , 0 च 0 क ह, पतरर फक ह, भजसक म1क म भ! च0 रह हS। इसक सत वज एकज!. 7 हS। च र! क ररप र. भ! र न उ यमभन र म" करव ई गई र! भजसक ररप ई एकज!.8 हS। पभतव ! न उस मक न म" नहK आन द य और म रप!र क भजसक पम भरत पभतभ0भप एकज!. 9 हS। म रप!र स उसक एव उसक ,f क च र आई भजनक भचदकतसक य पभतव न प०प!० 12 व 13 हS। पभतपर!कर दकय ज न पर भ! इन करन म" दकस! भ! पक र क , 1 .0त पकर नहK हई ह। स क! म नम हन प!.ड. 4 न भ! पभतव ! द र त 0 त डकर मक न म" ज,र सत! कबज करन ,त य ह। अत: उपर 2 म" ज स कय ! गई ह और भजसक समर.न सत वज! स,-त स भ! ह त हS, क खत हय पभतव ! द र नय-सनस प करन स भ,त ह त ह। यह , ख0! क आध र भवव दक सखय 7 क भवषय वसत1 रहK ह। इस सम,नध म" द य गय भनषकष. भ! उभचत हS।

12. पररर मत: उपर 2 म" ज अव0 कन हआ ह, उसक खत हय अ, पभतव ! क यह अप!0 सवय ख ररज क ज त! हS।

SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 11/48 Sd/-

dt:2/11/1994 (घ!स 0 0 चYधर!) अपर भज0 नय य ध!श सखय 2 ज धप1र"

7. Being aggrieved, the defendant tenant filed the present second appeal under Section 100 CPC and while admitting the second appeal, the coordinate bench of this Court framed the following substantial questions of law on 23/11/1994 and the execution of the eviction decree was also stayed by the learned Single Judge.

"(i) whether an order striking out defence would preclude the tenant from leading evidence on the issue relating to the general laws also.

(ii) Whether the application under Order 14 Rule 5 of the CPC for amendment of the issues filed by the defendant-tenant was rightly rejected by the court below.

(iii) Whether in the circumstances of the case the defence of the defendant was rightly struck off."

8. Learned counsel Mr. R.K.Thanvi, Sr. Advocate along with Mr. Narendra Thanvi, appearing for the defendant tenant submitted that in view of the said property having been mortgaged with a condition of sale by the defendant Kishna Ram to Smt. Nirmala Devi for Rs.17,500/- on 5/6/1974 and said amount of Rs.17,500/- having been repaid to Smt. Nirmala Devi on 4/5/1977 within three years, the property actually belonged to the defendant tenant as owner and no tenancy was created by Smt.Manju Lata, the subsequent purchaser SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 12/48 of the said suit property from Smt. Nirmala Devi in favour of defendant Kishna Ram on 7/6/1979, as claimed by her and no rent note was executed by him in favour of Smt. Manju Lata.

9. Mr. R.K.Thanvi, Sr. Advocate, further submitted that the defendant Kishna Ram has filed a separate suit for redemption of the said mortgage and for declaring his right of repurchase from Smt. Nirmala Devi in the competent court on 1/10/1994 registered as suit No.458/94, which suit is now numbered as 30/2002-Kishan Ram vs. Nirmala Devi is pending in the court of ACJM No.8, Jodhpur Metro at the stage of plaintiff's evidence. He, therefore, submitted that no ground of eviction could be established against the tenant including default in payment of rent, denial of title and other grounds like bonafide need of the landlady and nuisance etc. without allowing defendant to lead his evidence and, therefore, the eviction decree has been wrongly granted by both the courts below and same deserve to be reversed by this Court while answering the aforesaid substantial questions of law in favour of the defendant tenant. Significantly, Mr. R.K.Thanvi, Sr. Advocate urged that once the defence of the defendant - tenant in the present eviction suit was struck out by the learned trial court on 28/5/1991 by passing the order under Section 13(5) of the Act of 1950, which order of course became final with the rejection of the defendant's appeal by the first appellate court on 14/1/1993, still the defendant tenant could not be denied and deprived of the opportunity to lead evidence on the other grounds of eviction except the ground of default in payment of rent under Section 13 (1) (a) of the Act. He submitted that the entire SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 13/48 defence of the defendant tenant cannot be struck out under Section 13 (5) of the Act and such striking out of the defence under Section 13(5) of the Act is limited to the ground of default in payment of rent under Section 13(1)(a) of the Act. Therefore, Mr. R.K.Thanvi, Sr. Advocate urged that not allowing the defendant tenant to lead his own evidence in respect of other grounds of eviction raised by the plaintiff landlady was also not sustainable and for that reason the rejection of the application filed by the defendant tenant under Order 14 Rule 5 CPC for framing of certain additional issues in the present trial of eviction suit was not justified. Even though, he fairly submitted that the revision petition ( SB Civil Revision Petition No. 712/1991) filed by the defendant tenant before the High Court against the said order of trial court dated 28/11/1991 under Section 13(5) of the Act was dismissed as not pressed on 20/1/1992. Learned counsel Mr. R.K.Thanvi, relying upon the decision of Division Bench of this Court in the case of Ramesh Kumar Pandey vs. Babulal & Ors. - 1995 (3) WLC 570 submitted that the entire defence of the tenant cannot be treated as struck off or struck down and in the absence of tenant being allowed to lead his own evidence on other issues, except the ground of default in payment of rent under Section 13(1)(a) of the Act, such eviction decree cannot be sustained.

10. On the other hand, Mr. Shanker Lal Sinwaria, learned counsel appearing for the respondent-landlady submitted that the concurrent decree of the eviction on various grounds given by the two courts below does not require any interference by this Court in the present second appeal and the substantial questions of law framed by this SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 14/48 Court on 23/11/1994 also deserve to be answered in favour of the plaintiff respondent.

11. Rebutting the arguments of learned counsel for the defendant- tenant, learned counsel for the respondent-plaintiff urged that the denial of title and relationship of landlord and tenant qua the plaintiff landlady Smt. Manju Lata was clearly contrary to the documentary evidence in the form of Rent Note executed by himself 7/6/1979, which was duly proved by the plaintiff with the oral evidence also besides the documentary evidence of Rent Note itself and on the back side of the rent note the rent of Rs.65/- per month having been regularly paid by him in respect of the one room in question retained by him from 7/6/1979 to 7/1/1980 clearly shows that such relationship was duly established between the parties but denial thereof on the ground that he himself was the owner of the suit property was merely an eye wash and after thought and such a plea cannot be sustained. He also submitted that upon attornment in favour of Smt. Manju Lata after the purchase of the suit house in question from Smt. Nirmala Devi on 5/6/1979 (registered sale deed executed only on 8/9/1983 - Ex.2), the tenants of two shops on the road side had started paying rent to Smt. Manju Lata and even the defendant Kishna Ram himself paid rent in respect of one room at the rate of Rs.65/- per month, although for a limited period of about six months upto 7/1/1980. He also submitted that the plea of defendant that he had only conditionally sold the suit property for three years to Smt. Nirmala Devi on 5/6/1974 for Rs.17,500/- by way of mortgage and had repaid the said amount to Smt. Nirmala Devi on SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 15/48 4/5/1977 is merely an eye wash and he submitted that even if it is so that he created a mortgage with a right to conditionally sell the suit property if no repayment is made in favour of Smt. Nirmala Devi in terms of Section 58 of the Transfer of Property Act, unless he establishes his such right in the redemption suit No.30/2002 filed by him against Smt. Nirmala Devi on 1/11/1994 in which the plaintiff respondent Smt. Manju Lata has also been arrayed as a defendant, there is no question of believing upon such version given by the defendant as the question of determination of title is not even relevant in the eviction proceedings under the Rent Control Act, 1950 and, therefore, the grounds of eviction established by the plaintiff- landlady under Section 13(1) of the Act, 1950 is independent of any such right claimed by the defendant-tenant and the eviction decree deserves to be sustained by this Court on all the grounds.

12. Refuting the arguments of learned counsel for the defendant- tenant, Mr. R.K.Thanvi, learned counsel Mr. Shanker Lal Sinwaria also urged that the words employed in Section 13(5) of the Act are "defence struck off against eviction upon failure of the tenant to deposit the rent" and once such rent has been determined by the learned trial court under Section 13(3) of the Act, which results in such striking off or striking down of the defence under Section 13(5) of the Act, such striking off or striking down of the defence cannot be limited only to one of the grounds of eviction under Section 13(1)(a) of the Act with regard to default in payment of rent only but such striking out of the defence will render the defendant tenant entirely defenceless against all the grounds of eviction raised and SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 16/48 established by the plaintiff and the defendant tenant can only be given a right to cross examine the plaintiff's witnesses and evidence led by the plaintiff in such eviction proceedings, as held by the Supreme Court in the case of Modula India vs. Kamakshya Singh Deo - AIR 1989 SC 162 & which right he has already availed & cross examined the plaintiff's witnesses on all the grounds of eviction & addressed the arguments in his defence.

13. I have heard the learned counsels for the parties at length and carefully gone through the record of the case and the judgments cited at the bar.

14. The entire burden of the arguments of learned counsel for the defendant tenant, Mr. R.K.Thanvi, Sr. Advocate is that the defence of the tenant struck down by the learned trial court on 28/5/1991, against which an appeal of the defendant tenant was also dismissed by the learned Addl. District Judge, Jodhpur on 14/1/1993 and, thereafter, the eviction suit was decreed on 3/3/1994, for non- payment of rent fixed by passing the order under Section 13(3) of the Act on 17/5/1988 could not result in the striking out of the entire defence of the defendant tenant but only his defence against the ground raised by the plaintiff landlady under Section 13(1)(a) of the Act in respect of default in payment of rent could be so struck off and, therefore, the defendant in the present case was wrongly deprived of his opportunity to lead evidence in respect of other grounds of eviction raised by the plaintiff landlady and thus the eviction decree is bad in law.

SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 17/48

15. Mr. R.K.Thanvi, Sr. Advocate also urged that the defendant tenant had filed an application on 11/10/1991 under Order 14 Rule 5 CPC for farming additional issues in respect of his claim of ownership over the suit property and deny his status of tenant, which application too was rejected by the learned trial court on 28/11/1991 and the revision petition No. 712/1991 filed against the rejection order before High Court was also dismissed as not pressed on 20/1/1992, still the question remains as to whether the learned trial court was justified in not framing such additional issues as urged before the learned trial court in the application under Order 14 Rule 5 CPC and, thus, allow the defendant to lead evidence in respect of other defences including his own title over the suit property.

16. Mr. R.K.Thanvi, Sr. Advocate heavily relied upon the judgment of Division Bench of this Court in the case of Ramesh Chand Pandey & anr. vs. Babulal & ors. - 1995 (3) WLC 570, which judgment was subsequently followed by another Division Bench by a short order in the case of Swai Singh vs. Girdhari Lal - 1996 DNJ (Raj.) 64 in support of his contention that upon striking down of the defence under Section 13(5) of the Act of 1950, the defence only with respect of default in payment of rent under Section 13(1) (a) of the Act was partially struck down and not the entire defence of the defendant tenant including the issue relating to the relationship of tenant and landlord. In this respect, Mr. R.K.Thanvi also relied upon the Single Bench decisions of this Court in the case of Ramjilal vs. SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 18/48 Smt. Chandra Bhaga - 1992 (2) RLW 637 & Deshraj vs. Om Prakash & anr. - 1987 (1) RLR 244.

17. With respect to his argument of a mortgage with conditional sale made by defendant tenant Kishna Ram in favour of Smt. Nirmala Devi on 5/6/1974 of the said house in question covered under Section 58(c) of the Transfer of Property Act, Mr. R.K.Thanvi, Sr. Advocate relied upon the decision in the case of Vasantrao vs. Kishanrao - AIR 2008 Bombay 42.

18. With respect to his argument against wrongful rejection of the tenant's application under Order 14 Rule 5 CPC, Mr.R.K.Thanvi, learned counsel also relied upon the decision of Hon'ble Supreme Court in the case of Kalyan Singh Chouhan vs. C.P.Joshi - 2011 (2) Civil Court Cases ( S.C.) 1 and Andhra Pradesh High Court Judgment in the case of Syed Mohmood vs. Dr. Manik Chandra - 1996(1) CCC 297 (A.P.), Bombay High Court judgment in the case of Amardeep G. Madkaikar vs. State of Goa - 2006 AIRC 2045 and Madras High Court decision in the case of Pandian vs. A.Abitha Begam - 2001 AIHC 1053.

19. On the other hand, Mr. Shanker Lal Sinwadia, learned counsel appearing for the respondent-landlady heavily relied upon the decision of Hon'ble Supreme Court in the case of Modula India vs. Kamakshya Singh Deo - AIR 1989 SC 162 and the Single Bench decision of this Court in the case of Inder chand vs. Smt. Lilawati -

SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 19/48 AIR 1991 Rajasthan 131.

20. With respect to his argument for denial of mortgage or conditional sale made by defendant-tenant Kishna Ram in favour of Smt. Nirmala Devi, learned counsel for the respondent-plaintiff relied upon the decision of Supreme Court in the case of Tamboli Ramanlal Motilal vs. Ghanchi Chimanlal Keshavlal - AIR 1992 SC 1236.

21. Learned counsel for the respondent-plaintiff also vehemently urged that the judgments relied upon by the learned counsel for the appellant-tenant about the entire defence not being struck off are contrary to the binding precedent of Hon'ble Supreme Court in the case of Modula India vs. Kamakshya Singh Deo - AIR 1989 SC 162 and there being no substantial difference in the terminology of the two provisions in the West Bengal Act and the Rajasthan Act with respect to this part, he urged that the Division Bench judgment of the High Court cannot prevail and even though the said Supreme Court judgment in the case of Modula India (supra) was referred in the later Division Bench decision of Rajasthan High Courtin Ramesh Chand Pandey's case (supra), but the same has not been followed & applied, albeit wrongly, and he, therefore, submitted that once the defenant tenant fails to pay the rent as fixed by the learned trial court under Section 13(3) of the Act and consequently the entire defence against eviction was struck off by passing the order under Section 13 (5) of the Act, which order became final and even additional issues SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 20/48 sought to be raised by application under Order 14 Rule 5 CPC by the defendant tenant in this regard was also rejected and that also became final, the result was bound to be only the eviction decree, which has been rightly & concurrently granted by the two courts below and, therefore, the present second appeal of the defendant tenant has no force and the substantial questions of law as framed above deserve to be answered in favour of the landlord and against the defendant-tenant and eviction decree deserves to be upheld.

22. With respect to the contention of learned counsel for the appellant-defendant, Mr. R.K.Thanvi, that the defendant having made the mortgage with a conditional sale in favour of Smt. Nirmala Devi on 5/6/1974 for Rs.17,500/- and having repaid that said amount on 4/5/1977, learned counsel for the respondent-landlady vehemently disputed this position and submitted that such a contention or case is already sub-judice in the aforesaid suit no. 30/2002 filed by the defendant Kishna Ram against Smt. Nirmala Devi and the present plaintiff Smt. Manju Lata, who subsequently purchased the suit property from Smt. Nirmala Devi by registered sale deed dated 8/9/1983 Ex.2 (actual sale made on 5/6/1979), is also impleaded as a co-defendant. He submitted that the attornment in law is automatic and other tenants in the two shops in the said house in question after purchase by Smt. Manju Lata have started paying rent to Smt. Manju Lata right after June 1979 and, therefore, Smt. Nirmala Devi through her legal representatives and Smt. Manju Lala are also contesting the suit no. 30/2002, which clearly goes to SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 21/48 show that any semblance of right or any title of the defendant tenant in the said house and only one portion thereof where he was residing or carrying on his business as a tailor, he could not claim the ownership as against the present respondent Smt. Manju Lata for the entire house and unless and until the aforesaid suit no. 30/2002 is decreed in his favour giving him the right to repurchase the entire house from Smt. Nirmala Devi & ignoring or quashing the registered sale deed in favour of Smt. Manju Lala executed by Smt. Nirmala Devi on 8/9/1983, Ex.2, he cannot even dispute and deny the relationship of landlord and tenant and claim ownership of the house in question.

23. Lastly, Mr. Sinwadia also contended that even if it is assumed for argument sake that the defence struck off under Section 13(5) of thoe Act is only partial with respect to the ground under Section 13 (1)(a) of the Act, then too the eviction decree deserves to be upheld because, admittedly, the defendant tenant failed to deposit any rent after few initial deposits vide entires on the Rent Note itself, which amounts to his admission of relationship of tenant & landlord and in view of the admitted non-deposit of rent, irrespective of his contention denying such relationship, the default under Section 13(1)

(a) of the Act was well established and continuous default under Section 13(4) of the Act without any condonation of delay as per the law laid down by the Hon'ble Supreme Court in the case of Nasiruddin vs. Sita Ram - 2003 DNJ (SC) 180 on that ground alone the eviction decree can be sustained and, therefore, the substantial questions framed above are merely academic and do not SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 22/48 deserve to be answered and if at all they deserve to be answered, they are to be answered in favour of plaintiff respondent and the present appeal of the defendant tenant is liable to be dismissed with costs and directing the defendant to handover the peaceful possession of the one room in question to Smt. Manju Lata forthwith.

24. In the considered opinion of this Court, the present second appeal of the defendant Kishna Ram now represented by his legal representatives deserves to be dismissed and the substantial questions of law framed above are required to be answered in favour of the plaintiff landlord and against the defendant-tenant Kishna Ram. The reasons are as follows.

25. As far as the claim of the defendant Kishna Ram being the owner of the suit house in question is concerned, even if he is in possession of one room as tenant, is concerned, the same is subject matter of the civil suit no. 30/2002 filed by him against Smt. Nirmala Devi also impleading the plaintiff respondent Smt. Manju Lata, claiming his right of repurchase of the entire suit house in pursuance of the conditional mortgage with a conditional sale allegedly made by him in favour of Smt. Nirmala Devi on 5/6/1974 for the sum of Rs.17,500/-, allegedly borrowed by him from Smt. Nirmala Devi and which he claimed to have repaid back to Smt. Nirmala Devi on 4/5/1977 but in the meanwhile, the suit house itself was sold by Smt. Nirmala Devi to Smt. Manju Lata on 5/6/1979 vide by the registered sale deed dt. 8/9/1983, Ex.2. Therefore, there is no basis available with this Court as of now to infer or assume that the defendant tenant SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 23/48 Kishna Ram continued to be owner of the suit house including the one room in question and, therefore, he could not validly deny the title of the plaintiff Smt. Manju Lata in the present eviction suit and refuse to pay the rent therefor. Smt. Nirmala Devi, who was examined as P.W.2 by the learned trial court in the present case has fully supported the case of the landlady Smt. Manju Lata. On the contrary, the evidence available on record and the findings recorded concurrently against him on the basis of entries made by him on the Rent Note about payment of rent, such findings are binding on him so long as his aforesaid suit No.30/2002 for repurchase is not decreed in his favour setting aside the registered sale deed in favour of Smt. Manju Lata and his paramount title is recognized by the competent court of law. Therefore, for the present eviction suit, where question of title cannot be decided & is irrelevant, his status as tenant of Smt. Manju Lata rightly found by the courts below is required to be upheld and the same is accordingly so upheld.

26. Further, about striking out of the defence of the tenant Kishna Ram by the learned court below under Section 13(5) of the Act vide order dated 28/5/1991, which order became final with the dismissal of his appeal by the learned first appellate court on 14/1/1993, this Court is of the opinion that on the basis of clear and unambiguous language of Section 13(5) of the Act, the entire defence against eviction gets struck out, once the tenant commits the default in payment of rent in terms of order passed by the learned trial court under Section 13(3) of the Act determining the rent payable by the tenant. There is no demarcation or dividing line between partial SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 24/48 striking out of the defence of tenant and full striking out of the defence of the tenant and, therefore a hypothetical or imaginary dividing line of this kind cannot be assumed by the interpretative process. The words under Section 13(5) are "defence against eviction to be struck out" & "Court shall proceed for hearing of the suit" leaving no scope for any evidence to be led by the defendant on any of the issues or grounds of eviction. This court also does not find any difference of substance between the language of two enactments in this regard, namely; the West Bengal Premises Tenancy Act, 1956 and the Rajasthan Rent Control Act, 1950. The relevant provisions of the two enactments may be usefully referred hereinbelow. The provisions of West Bengal Act extracted by the Supreme Court in the case of Modula India (supra) from para 4 of the judgment is quoted below, while the provisions of Section 13 (3) to (6) of the Rajasthan Rent Control Act, 1950 are quoted below for ready reference:-

"4. We may start by referring to the provisions of Section 17 of the Act. When a suit for eviction is filed under the Act against any tenant on any of the grounds specified in Section13 of the Act, Section 17(1) imposes an obligation on the tenant to deposit into the Court or with the controller or pay to the landlord all arrears of rent due from him with interest within a specified period and also to continue to deposit or pay the current rent thereafter regularly month after month. Sub-section (2) provides a machinery for the determination of the amounts to be so paid or deposited, in case of dispute. Sub-section (2A) and (2B) contain provisions enabling the Court, subject to certain SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 25/48 restrictions, to extend the time for such deposit or payment or allow the deposit or payment to be made in installments. If the tenant deposits or pays the amounts as above, he is protected from being evicted from the premises on the ground of non- payment of rent: Sub-section (4). If, on the other hand, he fails to deposit any amount referred to above within the time permitted, the consequence set out in Sub-section (3) will follow. That Sub-section reads:

"(3) If a tenant fails to deposit, or pay any amount referred to in Sub-section (1) or Sub-section (2) within the time specified therein or within such extended time as may be allowed under Clause

(a) of Sub-section (2A), or fails to deposit or pay any installment permitted under Clause (b) of Sub-

section (2A) within the time fixed therefor, the Court shall order the defence against delivery of possession to be struck out and shall proceed with the hearing of the suit."

(underlining ours)"

Section 13 (3) to (6) of the Rajasthan Rent Control Act, 1950, to the relevant extent, is quoted below:-

"Section 13. Eviction of tenants-

      (1)     .......
      (2)     .......
      (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 SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 26/48 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 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).

SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 27/48 (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."

Compare & one finds last three lines of Section 17(4) of West Bengal Act and Section 13(5) of the Rajasthan Act almost identical.

27. It is also found necessary to extract the relevant portion of the judgment of Hon'ble Supreme Court of India in the case of Modula India (supra):-

"A provision like the one in Section 17(4) is a provision in terrorem. It penalises the defendant for certain defaults of his. As pointed out by the decisions earlier referred to, the court will act with great circumspection before striking out the defence of a tenant under this provision. This Court has interpreted provisions like this in rent acts to say that striking off of defence is not obligatory on the court merely because there is a default and that it is a matter for exercise of SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 28/48 great judicial restraint. But it does not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default. The observations made by this Court, while discussing the provisions of the CPC, and the Original Side rules of the Calcutta High Court which deal with somewhat analogous situations, cannot be lightly brushed aside. Those decisions have enunciated a general equitable principle. We are also of the same view that provisions of this type should be construed strictly and that the disabilities of a person in default should be limited to the minimum extent consistent with the requirements of justice. This should be all the more so in the context of a tenancy legislation, the main object of which is to confer protection on tenants against eviction by the landlord, unless certain statutory conditions are fulfilled. The provisions should not be given any wider operation than could have been strictly intended by the legislature.

For the above reasons, we agree with the view of Ramendra Mohan Dutta, ACJ that, even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:

(a) to cross-examine the plaintiff's witnesses; and

(b) to address argument on the basis of the plaintiff's case.

SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 29/48 We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses."

28. As against the aforesaid binding precedent of Hon'ble Supreme Court, the Division Bench of this court in Ramesh Chand Pandey vs. Babulal & Ors. - 1995 (2) RLW 271 took a different view in the following manner:-

"(16). It is true that the provisions of Section 13(5) of the Rajasthan Act, if literally construed, provides that the defence against eviction be struck off if the tenant fails to deposit or pay any amount referred to in sub-section (4) of the Rajasthan Act within the time specified therein. However, while interpreting the provisions of Section 13(5), the context in which the phrase "defence against eviction to be struck out", has to be taken into consideration. The history of legislature is also required to be taken into consideration. Moreover, the object of the Act is to be ascertained. From all these aspects the provision is required to be interpreted and the intention of the legislature has to be discovered.

History of the legislation:

(17). It is an undisputed position that in 1950 when the SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 30/48 Rajasthan Act was enacted, the provisions of sub-section (5) of Section 13 read as follows : --

"If, on the first day fixed for the hearing of such a suit, the tenant expresses his intention to contest the same or if he fails to make the payment referred to in sub-section (4), the Court shall proceed with the hearing of the suit a.05.on the application of the landlord made at any stage of the suit and after giving an opportunity to the parties to be heard, make an order requiring the tenant to deposit in Court month by month the rent at rate at which it was last paid. On his failure to deposit rent for any month by the fifteenth day of the next following month, the Court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit."

The aforesaid provision was amended by the Rajasthan Act No. 12 of 1965 and again by Act of 1975. Thus, ultimately the legislature has retained the provision of Section 13(5) in the present form. Be it noted that initially when sub-section (5) was enacted in the year 1950, the legislature provided 'that on failure of the tenant to deposit the rent as provided in the Act, the court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit." In the subsequent amendment the latter expression commencing with "and the tenant to be placed in the same position as if he had not been defended the suit" has been deleted. Therefore, the amendment in the legislation indicates that the intention of the legislature is not that in case of the SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 31/48 default committed by a tenant in complying with the order of the court, he may be visited with the consequences of shutting out of his defence on all the grounds of eviction. It is evident that the legislature did not intend that the tenant should be deprived of his defence against eviction on all the grounds specified in Section 13(1) (a) to (l) of the Rajasthan Act. The intention of the legislature was to deprive the' tenant to defent the suit only on the ground mentioned in Section 13(1) (a) of the Rajasthan Act. This is the reason why the legislature deleted the aforesaid expression in subsequent amendment. Liberal construction necessary:

(18). This interpretation is consistent with the object of the Rajasthan Act. As indicated hereinabove, the Rajasthan Act has been enacted "to control eviction from, letting of, and rents for, certain premises in the State of Rajasthan" and also to provide for other ancillary matters.

Thus, the preface of the Rajasthan Act indicates that the Act is enacted to extend protection to the tenants. As held by the Hon'ble Supreme Court in the case of Pandey Orson vs. Ram Chander Sahu & Ors. (7), beneficial provision extending protection to a class of citizens should be construed liberally. In the aforesaid decision the Supreme Court, while interpreting the provisions of Chhotanagpur Tenancy Act, inter alia observed as follows : --

"6A. The provision is beneficial and the legislature intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the Court has to give a liberal SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 32/48 construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by the scope."

The contextual interpretation (19). It needs to be noted that the expression "defence against eviction to be struck out" occurring in Section 13 (5) of the Rajasthan Act is required to be interpreted in the context in which the provision occurs. In the case of Commissioner of Income- Tax, Orissa vs. M/s. N.C. Budharaja and Company and Anr. (8), the Hon'ble Supreme Court has inter alia observed in para 28 of the reported decision to the effect that a statute cannot always be construed with the dictionary in one hand and the statute in the other. Regard must also be had to the scheme context and the legislative history of the provision.

(20). If the provision is read in the proper context, it is difficult to give wider connotation to it so as to include all grounds of eviction. In view of the provisions of Section 13(5) of the Rajasthan Act which provides that one of the grounds of eviction must be under Section 13(1) (a), it has got to be held that the provisions of Section 13(5) of the Rajasthan Act would entail the consequences of defence being struck out only as regards the ground mentioned in Section 13(1) (a) is concerned. If this interpretation is not given, it would frustrate the object of the Act. As indicated hereinabove, the object of the Act is to extend protection to a certain class of citizens and particularly to control the eviction of premises. It is with this avowed object that the legislature has enacted the Act. After enacting the Act it has made suitable amendments. As indicated hereinabove, the SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 33/48 amendments made by the legislature also indicates that the scope of the expression "defence against eviction to be struck out" cannot be wide so as to cover other grounds of eviction except the ground under Section 13 (1) (a) of the Rajasthan Act."

(22). In the instant case, if one were to give literal construction, absurd situation may arise. Suit for eviction may be on several grounds including the ground of non-payment of rent. If the" defence of the tenant is struck off and if he is not permitted to lead evidence on all the grounds, one or other situation can reasonable be imagined. As held by the learned Single Judge, following the decision of Hon'ble the Supreme Court in the case of Modula India (supra), even when the defence of the tenant is struck off, the tenant will be at liberty to cross- examine the plaintiff and his witnesses. By cross- examining the plaintiff and his witnesses the tenant may be in a position to prove beyond any reasonable doubt that he had not committed any default in payment of rent or that there was no arrears of six months, so as to attract the provisions of Section 13(5) of the Rajasthan Act. The Court may also ultimately come to the conclusion that the ground of eviction, as far as default in payment of rent is concerned, was not available to the plaintiff. But as the defendant-tenant may not have been allowed to lead evidence though the defendant-tenant may have a good case and the plaintiff-landlord may have a very week case on the ground of reasonable and personal requirement and on the ground of sub-letting and on the ground of denial of title of the landlord by the tenant, the plaintiff may succeed on these palpably weak grounds because there was no counter evidence by the tenant. Such a situation is never contemplated by the legislature. Therefore, in order to avoid absurd results, SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 34/48 the expression "defence against eviction to be struck out"

occurring in Section 13(5) of the Rajasthan Act, is required to be given a restricted interpretation so as to take within its sweep only the ground mentioned in Section 13(1) (a) of the Rajasthan Act. Answer to the Question:

(23). For the aforesaid reasons, our answer to the question referred to is as follows : --

The order passed under Section 13(5) of the Rajasthan Act striking out the defence of a tenant against eviction, would apply only to the grounds of eviction specified in Section 13(1) (a) of the Rajasthan Act."

29. The so called distinction which the Division Bench of this Court in Ramesh Chand Pandey (supra) has drawn from the judgment of the Hon'ble Supreme Court in Modula India (supra) was in the following manner:-

"It was in the context of the provisions of Section 17(1) of the WB Act which imposes obligation on the tenant against whom suit for eviction is filed under the Act "on any of the grounds specified in Section 13 of the WB Act to deposit into the Court or with the Controller or pay to the landlord all arrears of rent due from him with interest within a specified period."

(similar words are in Section 13(3) of the Rajasthan Act, "with or without any of the other grounds referred to in that sub-section.") (15). As far as the provisions of the Rajasthan Act are concerned, Section 13(3) enjoins obligation upon the tenant to deposit the rent in court on the first day of SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 35/48 hearing or on any other date as the court may fix in this behalf, only in cases where the suit for eviction is filed inter-alia on the grounds set-forth in clause

(a) of sub-section (1) of Section 13. In other words, one of the grounds or sole ground of eviction must be default in payment of rent as per the provisions of Section 13(1) (a) of the Rajasthan Act. On the other hand in the WB Act, obligation is cast upon the tenant to deposit the rent in court in all types of suits whether the suit is filed only on the ground of non-payment of arrears of rent or on any other ground. It needs to be noted that for attracting the provisions of Section 13(3) of the Rajasthan Act, it is necessary that one of the grounds for eviction must be as mentioned in clause (a) of sub-section (1) of Section 13 i.e. the ground of non- payment of arrears of rent for six months. If this is not one of the grounds of eviction in the suit, the provisions of Section 13(3), 13(4) and 13(5) of the Rajasthan Act would not be attracted at all. Such is not the situation as far as the provisions of the WB Act are concerned. Section 17(1) of the WB Act takes within its sweep all types of suits for eviction. Moreover, as indicated hereinabove, in the WB Act, further safeguard and protection is extended to the tenants when order is passed for striking off of the defence and also when a decree of eviction is passed on the ground of default in payment. Such safeguards and protections are absent in the Rajasthan Act. Thus, the interpretation placed by Hon'ble the Supreme Court on the provisions of Section 17(3) of the WB Act, cannot be applied to the cases arising under the Rajasthan Act.

30. With greatest respects, the distinction found by the Hon'ble SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 36/48 Division Bench in Ramesh Chand Pandey's case (supra) from the judgment of Hon'ble Supreme court in Modula India (supra) on the basis of contextual interpretation is not correct, because the striking down of the defence on the same condition of default in payment of rent determined by the trial court are similarly worded in both the enactments and even for such entire striking out of the defence of the tenant, the Hon'ble Supreme Court said that only to the limited extent the tenant can cross examine the plaintiff's evidence to demolish the same, and can address on the basis of plaintiff's case which he has done in the present case but under no circumstances the defendant tenant can lead any positive evidence to establish his own case.

31. It may also be noted here that the words, "with or without any of the other grounds referred to in that sub-section" as employed in sub-section (3) of Section 13 of the Rajasthan Rent Control Act, 1950, after the words, "in a suit for eviction on the ground set forth in clause (a) of sub-section (1)" are significant and the determination of rent under Section 13(3) of the Act has to be made even if a single ground of default in payment of rent or default & other grounds of eviction are also raised in the eviction suit. The presence of ground of default as one of the grounds of eviction is necessary to invoke the provisions of sub-section (3) of Section 13 of the Rajasthan Act for determination of rent but the consequence of striking out of defence under Section 13(5) of the Act is not circumscribed by these words in sub-section (3) of Section 13 of the Act. Sub-section (4) of Section 13 mandates that the tenant shall SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 37/48 deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within the stipulated time with no extension of time possible or condonation of delay possible as laid down by the Hon'ble Supreme Court in the case of Nasiruddin vs. Sita Ram - 2003 DNJ SC 180. Sub-section (5) of Section 13 of the Act providing for striking out the defence against eviction applies and can be invoked, if a tenant fails to deposit or pay the amount as per sub-section (4). On a harmonious reading of plain language of these three provisions quoted above, as per the golden rule of interpretation, there is no scope for holding that the striking out of the defence can only be partial with respect to the ground raised under Section 13(1)(a) of the Act for default in payment of rent by the tenant, since sub-section(3) applies if the ground of default with or without other grounds for evictions are also raised and sub-section (5) permits the striking out of the defence against eviction if order under Section 13(3) of the Act is not complied with by the tenant, there appears to be no justification for striking out the defence only partially and not wholly. The drastic consequences of striking out of the entire defence appears to have been deliberately introduced by the legislature and after the striking out of the defence, the Court shall proceed with the hearing of the suit, leaves no manner of doubt that legislature did not intend to provide any opportunity to the tenant still to lead his own defence, after he commits the default in payment of rent as determined by the Court in terms of Section 13(3) & 13(4) of the Act. Though the word "Shall" has been used in sub-section (5), namely; "the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit", which is in SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 38/48 mandatory form but the Courts have held that the defence has to be struck with a great circumspection and only if it becomes necessary, since the Act is intended to provide suitable protection to the tenants also and, therefore, the word "shall" may be construed as "may" leaving the judicious discretion with the court concerned to strike out the defence or not. But once the said defence is struck out, there is no manner of doubt that the legislature intended the entire defence to be struck out and not partially, limited to one ground of eviction under Section 13 (1) (a) of the Act. The Hon'ble Supreme Court in the case of Modula India (supra), therefore, explained this position of law with respect to West Bengal Act as contained in Section 17(4) and Section 13(5) of the Rajasthan Act, which are pari materia in all respects. However, since the Division Bench of this Court in Ramesh Chand Pandey's case (supra) and the later decisions despite referring to the decision of Hon'ble Supreme Court in Modula India (supra) took a different view of the matter, this court sitting singly , cannot possibly take a different view of the matter finally except for expressing the aforesaid dissent, with great respects.

32. This Court is aware of the judicial discipline and the binding character of the judgment of Division Bench of this Court, therefore, while expressing the aforesaid dissent with greatest respects, this Court still has to follow the ratio of the aforesaid Division Bench judgment in Ramesh Chand Pandey's case (supra).

33. But now coming to that proposition of law that defence will only SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 39/48 be partially struck off upon the orders passed under Section 13(5) of the Rajasthan Rent Control Act, the question in the present case arises is as to whether the defendant tenant who has made a default in payment of rent after determination of rent under Section 13 (3) of the Act or not even during the pendency of the proceedings before the trial court as well as the appellate courts, without any condonation of delay possible as held by the Hon'ble Supreme Court in Shiv Dutt Jadiya vs. Ganga Devi - 2002 (1) RCR SC 335 and Nasiruddin vs. Sita Ram - 2003 DNJ SC 180, which have been followed by this Court in large number of cases, the answer on facts as found in the present case is in negative and admittedly the defendant tenant has failed to deposit the rent in the present case after such determination of rent under Section 13 (3) of the Act and, therefore, there is a continuous failure or default by him throughout the trial and pendency of the appeals before the first appellate court and this Court, resulting in breach of Section 13(4) of the Act as well and consequently the eviction decree was bound to be passed against him & has to be upheld by this Court.

34. The relevant ratio from the judgment of Hon'ble Supreme Court from Shiv Dutt Jadiya vs. Ganga Devi - 2002 (1) RCR SC 335 holding that requirement to deposit rent during pendency of appeals also is quoted below:-

"7. On a suit for eviction being instituted compliance with Sub-section (4) by the tenant as contemplated by Section 13 is in "Court". The SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 40/48 legislature has not chosen to use words "Trial Court" in the framing of Section 13. Ordinarily, an appeal is a continuation of suit. The tenant is bound to comply with provisions of Sub-section (4) if the claim for eviction on having been denied by the Trial Court is pursued in appeal by the landlord. Inspite of a decree for eviction having been refused by the Trial Court, the Appellate Court may still in an appeal preferred by the landlord, pass a decree for eviction. On the date of the passing of the decree, the Appellate Court shall have to see, in view of the obligation cast on it by Sub-section (6), whether the tenant had made deposit or payment, as required by Sub-section (4). Any view to the contrary may result in creating an incongruous or inequitable situation. If it was to be held that on decision by the Trial Court, the obligation of the tenant to pay or tender the rent, in the manner prescribed by Sub-section (4) comes to an end, then, although the landlord is still pursuing his claim for eviction before the Appellate Court and the decision of appeal may take its own time, the need on the part of the tenant to pay or tender the rent to the landlord or deposit the same in the Court shall stand dispensed with. We do not think that Section 13 contemplates such a situation. The object behind enacting Section 13 is that pendency of litigation should not be used by tenant as an excuse for suspending his obligation to regularly pay the rent and the landlord should not be compelled to file separate proceedings for recovery of rent falling due during the pendency of already filed eviction proceedings."

35. It is also appropriate to reproduce the relevant part of decision of Hon'ble Supreme Court in the case of Nasiruddin vs. Sita Ram - 2003 DNJ SC 180 in this regard. In para 36 & 37 of the judgment, SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 41/48 the Hon'ble Supreme Court has held as under:

"36. In a case where the statutory provision is 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.

36. 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 SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 42/48 Act, therefore, no such extension was possible beyond the period prescribed under the Act.

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 SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 43/48 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 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.

37. About the need to comply with the order passed by the Court SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 44/48 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:-

"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."

38. Therefore, even if the contention of learned counsel for the defendant tenant that defence only to the extent of ground under Section 13(1) (a) of the Act could be struck off is to be accepted, which is so accepted in the light of the judgment of Division Bench of this Court in the case of Ramesh Chand Pandey (supra), no benefit can accrue to the tenant resulting in the reversal of eviction decree because the eviction even on the single ground of default in payment of rent can also be upheld, and that would be sufficient, and the same is upheld by this Court. As far as the other grounds of eviction are concerned, they are also proved by the plaintiff & despite cross examination by the defendant counsel in terms of the Hon'ble Supreme Court decision in the case of Modula India (Supra) & the SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 45/48 eviction decree would sustain on all the grounds, but it is well settled that the eviction decree even on a single ground under Section 13(1)

(a) to (l) can be sustained & upheld.

39. For the aforesaid reasons only, this Court also cannot endorse the view earlier taken by the learned Single Judge of this Court in the case of Deshraj vs. Om Prakash & anr. - 1987 (1) RLR 244, which was held to be impliedly overruled in view of the decision of Hon'ble Supreme Court in the case of Modula India (Supra), as noticed in para 4 of the judgment by another learned Single Judge of this Court in the case of Ramjilal vs. Smt. Chandra Bhaga - 1992 (2) RLW

637. In Inder Chand vs. Smt. Lilawati - AIR 1991 Rajasthan 131 = 1990 (2) RLR 196, another learned Single Judge of this Court held, following the decision of Hon'ble Supreme Court in Modula India (supra) that once the defence has been struck out under Section 13 (5) of the Act & allowing the defendant to lead evidence would amount to reconsideration of that order striking out the defence, which is not permitted in law and in the case of Inder chand (supra), the learned Single Judge also drew support of the decision in the case of Deshraj vs. Om Prakash (supra), also. In Ramjilal vs. Smt. Chandra Bhaga (supra), the learned Single Judge took the view that once the defence of the defendant tenant is struck out under Section 13(5) of the Act, such striking out of defence is only qua tenant and, therefore, the defendant cannot be deprived of contesting his plea that he is not a tenant. As far as this view is concerned, the same would not apply in the present case, since for SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 46/48 declaration of the defendant as owner of the property, such question cannot be determined in the eviction proceedings under the Rent Control Act and secondly for this precise purpose, the defendant Kishna Ram had already filed a civil suit No. 30/2002 claiming his right of repurchase of the suit property, which is still pending trial. Therefore, none of the judgments relied upon by the learned counsel for the appellant-defendant-tenant enures to the benefit of defendant tenant and the present second appeal is found to be devoid of merit.

40. For the aforesaid reasons also, this Court is of the opinion that rejection of the application filed by the defendant tenant under Order 14 Rule 5 CPC seeking to raise additional issues for proving his title over the suit property in question was also justified, since the question of title could not have been raised in these eviction proceedings and as far as his relationship of tenant of landlady is concerned, that was well proved by the plaintiff by the documentary as well as oral evidence. The defendant having challenged the said order of rejection under Order 14 Rule 5 CPC by way of revision petition no. 712/1991 and having not pressed the same and withdrawn the same from High Court, now cannot be permitted to re- agitate the same issue in the present second appeal.

41. Therefore, the substantial questions of law framed above are answered in favour of the respondent-plaintiff-landlady and against the appellant-defendant-tenant and the present second appeal deserves dismissal. Consequently, the present second appeal of the appellant-defendant-tenant is liable to be dismissed and the same is SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 47/48 hereby dismissed with costs of Rs.10,000/-, which may be paid to the respondent-plaintiff.

42. The appellant-defendant-tenant shall hand over the peaceful & vacant possession of the suit premises in their possession to the respondent-plaintiff-landlady within a period of nine months from today i.e on or before 31st December, 2015 and shall pay mesne profit @ Rs.1,000/- per month from May, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff and in case there is any default in payment of mesne profit, the period of nine months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant- defendant-tenant shall also clear all the arrears of rent and mesne profit @ Rs.65/- pm from 7/1/1980 from January, 1980 till the date of filing of present second appeal on 19/11/1994 i.e. upto November, 1994 and from December, 1994 till April, 2015 @ Rs.300/- pm and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant-tenant or person in possession shall also further not sub- let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void & such third party will also be bound by this decree. The appellant-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months and one copy thereof along with affidavit, in this SBCSA No.292/1994 - L.Rs of Late Kishna Ram vs. Smt. Manju Lata Judgment dt: 29/4/2015 48/48 Court. It is made clear that if the peaceful and vacant possession of the suit room is not handed over to the respondent-landlady within a period of nine months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.

(DR.VINEET KOTHARI), J.

item no.

baweja/-

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Rajasthan High Court - Jodhpur