Rajasthan High Court - Jodhpur
Csa No.250/14 - Om Prakash vs . Devendra Kumar on 12 January, 2015
Author: Vineet Kothari
Bench: Vineet Kothari
CSA No.250/14 - Om Prakash vs. Devendra Kumar
Judgment dt: 12/1/2015
1/14
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B.CIVIL SECOND APPEAL NO. 250/2014
Om Prakash Vadvani vs. Devendra Kumar
Date of Judgment : 12th January, 2015
PRESENT
HON'BLE DR.JUSTICE VINEET KOTHARI
Mr. R.K.Thanvi, Sr. Advocate along with
Mr. Narendra Thanvi, for the appellant-tenant
Mr. Sandeep Saruparia, for the respondent-landlord.
REPORTABLE
BY THE COURT:
1. The defendant tenant has filed the present second appeal being aggrieved by the concurrent eviction decree passed under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short the `Act of 1950') against him in respect of a suit shop situated at New Bapu Bazar, Udaipur. The eviction suit No.33/98 - Devendra Kumar vs. Om Prakash was decreed by the learned trial court of Civil Judge (Jr. Div.) North, Udaipur on 18/5/2013 on the ground of default in payment of rent by the tenant for the period January, 1994 to November, 1997 @ Rs.500/- per month. The appellate court upheld the said eviction decree on the said ground established by the landlord and dismissed the tenant's appeal No.2/2013 - Om Prakash vs. Devendra Kumar on 12/11/2014.
CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 2/14
2. Learned counsel Mr. R.K.Thanvi, Sr. Advocate assisted by Mr. Narendra Thanvi appearing for the appellant-tenant submitted that on 16/1/2001 the learned trial court determined the provisional rent for the period 1/1/1994 to 31/12/2000 @ Rs.500/- pm to the extent of Rs.50,925/- including the interest thereon of Rs.8925/- and directed the tenant to pay the same within a period of 15 days and on account of non-compliance of the same & non-payment of monthly rent thereafter under Section 13(4) of the Act, the defence of the tenant was struck down as per the provision of Section 13(5) of the Act of 1950 on 12/7/2002. The said order under Section 13(5) of the Act striking down the defence of the tenant was challenged by the tenant by way of appeal No.35/2002 before the learned Addl. District Judge No.1, Udaipur but the said appeal was also dismissed on 29/8/2003 against which a writ petition was filed before the High Court by way of writ petition No. 27/2004, which was also rejected by this Court on 31/1/2006 and thus, the order striking off the defence of the tenant was upheld upto the High Court and consequently, the eviction decree was passed.
3. The issue which is now sought to be raised and was raised before the lower appellate court also is that the order dated 16/1/2001 determining the provisional rent under Section 13(3) of the Act was illegal and nonest order because as per the proviso to Section 13(3) of the Act of 1950, the determination of the rent could not go beyond the period of three years as rest of the arrears of rent was barred by the law of limitation and, therefore, the arrears of rent determined vide order dated 16/1/2001 for the period 1/1/1994 to CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 3/14 31/12/2000, for the period of about seven years, was illegal and that order deserves to be quashed and that is the substantial question of law arising in the present second appeal filed by the tenant.
4. Mr. R.K.Thanvi, Sr. Advocate relied upon the following judgments in support of this contention that the order passed under Section 13(3) of the Act of 1950 does not merge with the order under Section 13(5) of the Act and upholding of the order passed under Section 13(5) of the Act upto the High Court does not dis-entitle the appellant-tenant to challenge the said provisional rent determination order under Section 13(3) of the Act dated 16/1/2001 even now by way of raising such substantial question of law, even though said order was not separately challenged earlier in the year 2001 itself or even thereafter, but since that point has been raised before the courts below, therefore, a substantial question of law arises out of orders passed by the courts below. He placed reliance on the following judgments:-
(i) Jang Singh vs. Brij Lal & Ors. - AIR 1966 SC 1631
(ii) Kshitish Chandra Bose vs. Commissioner of Ranchi - AIR 1981 SC 707;
(iii) Mangal Prasad Tamoli vs. Narvedshwar Mishra - AIR 2005 SC 1964;
(iv) Achal Misra vs. Rama Shanker Singh & ors. - (2005) 5 SCC 531;
(v) Gyan Chand vs. Kunjbeharilal - AIR 1977 SC 858;
(vi) Smt. Mankunwar Bai vs. Sundarlal Jain - 1978 (1) AIRCJ 248;
CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 4/14
(vii) Phool Chand vs. Dr. Gulab Chand - 1999 DNJ (Raj.) 771.
5. On the other hand, Mr. Sandeep Saruparia, learned counsel appearing for the respondent-landlord relying upon the judgments of this Court & Supreme Court in the case of Shyam Sunder vs. Roopkanwar - AIR 1990 Raj. 28, Nasiruddin & Ors. vs. Sita Ram
- AIR 2003 SC 1543 and Smt. Kamla Devi Surana vs. Madan Lal Harit - SBCSA No.125/2001, decided on 14/9/2012, vehemently argued that it is not only too late in a day for the defendant tenant to challenge the order dated 16/1/2001 passed under Section 13(3) of the Act now separately after the defence was struck off by the learned trial court vide order dated 12/7/2002, which was upheld upto High Court, but even otherwise also, the provisions of Section 13(4) of the Act, which mandated the tenant to pay the rent determined under Section 13(3) of the Act and also to pay monthly rent thereafter regularly and that monthly rent having not been paid by the defendant tenant, the mandatory requirement of Act under Section 13(4) was not complied with and the order passed under Section 13(5) of the Act striking down the defence was bound to result in an eviction decree against the tenant and now at this stage, no substantial question of law can be said to be arising to examine the validity of the order passed under Section 13(3) of the Act and such a challenge, in any case, is an infructuous challenge.
6. Learned counsel for the respondent-landlord also urged that the determination of rent beyond the period of limitation is a mere irregularity and illegality, which was curable one and nothing CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 5/14 prevented the defendant-tenant to deposit the rent for the period of three years, if not for the period of seven years, as determined by the trial court below. He also submitted that no such rectification of period or amount of rent arrears was sought by the tenant at the relevant point of time in the year 2001 and he did not even challenge the order dated 16/1/2001 on this ground that it was hit by the proviso of Section 13(3) of the Act.
7. Mr. Sandeep Saruparia, learned counsel for the respondent- landlord also submitted that on a harmonious reading of the relevant Sections 13(3) to 13(6) of the Act, the decree of eviction passed by the courts below on the ground of default of payment of rent is perfectly justified and same deserves to be upheld by this Court and no substantial question of law arises in the present case.
8. Having heard the learned counsels for the parties, this Court finds considerable force in the submissions of learned counsel for the respondent-landlord and is of the considered opinion that no substantial question of law arises in the present second appeal filed by the appellant-defendant-tenant.
9. The proviso to Section 13(3) of the Act, which is reproduced below for ready reference, though uses the word `shall' but which term `shall' has to be read as `may' in the context of these provisions of the Act and the purpose for which the said provisions have been enacted. The proviso to Section 13(3) reads like this:-
CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 6/14 "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 the filing of the suit."
10. The purpose of enacting this proviso to Section 13(3) appears to be that the arrears of rent payable by the tenant are required to be decreed against him by way of money decree and, therefore, limitation of three years, which is applicable for such suits is applicable and, therefore, the provisional arrears of rent determined should not go beyond the period of three years. This proviso neither absolves the tenant of his liability to pay the entire due rent or arrears thereof nor passing of such order even beyond the period of three years renders such an order void or nonest. It is a mere irregularity, which could be cured by the court, had the defendant- tenant pointed out by filing proper application before the court at that point of time itself. But the defendant-tenant did not challenge the said order and now the eviction decree having been passed against him and the appellate court having upheld the same, it is absolutely infructuous to examine the validity of the order passed under Section 13(3) of the Act at the stage of second appeal. The curtailment or restriction of period to Section 13(3) of the Act does not wipe out the liability of the tenant to pay even such time barred arrears of rent. Ultimately Section 13 (3) only provisionally determines such arrears of rent at the threshold of the suit.
11. It is only an effort on the part of the defendant-tenant to somehow defeat the eviction decree by seeking some sort of CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 7/14 footage in the said proviso to Section 13(3) of the Act. It is needless to say that harmonious reading of all the provisions is required to be made and sub-sections (3), (4) and (5) of Section 13 cannot be read in a disjuncted manner or in a water tight compartments, as is sought to be canvassed before this Court by the learned counsel Mr. R.K.Thanvi, Sr. Advocate. There is apparent and admitted failure on the part of the tenant to comply with the directions of the trial court to pay the arrears of rent and even subsequent monthly rent was not paid by him as required by Section 13(4) of the Act & which was not even subject matter of the order passed under Section 13(3) of the Act and the eviction decree could be even independently upheld on this ground and that is why the order under Section 13(5) of the Act striking off the defence of the tenant was upheld by this Court. Once the impugned order striking down the defence under Section 13(5) of the Act is upheld, there remains no justification or occasion to academically examine the validity of the provisional order under Section 13(3) of the Act and that too at this belated stage, after the eviction decree is concurrently passed by the two courts below. It may be true, as held by the various courts in the judgments relied upon by the learned counsel for the appellant-tenant that doctrine of merger of order under Section 13(3) in Section 13(5) may not apply but then Section 13(5) of the Act is a result of non-compliance of the order passed under Section 13(3) of the Act and also the condition mentioned in Section 13(4) of the Act of non-deposit of regular monthly rent by the defendant tenant thereafter. Thus, order passed under Section 13(5) of the Act in the present case is even independently sustainable and has been sustained upto this Court CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 8/14 and, therefore, this Court is of the considered opinion that no substantial question of law arises in the present second appeal & the eviction decree deserves to be upheld.
12. In Smt. Kamla Devi Surana vs. Madan Lal Harit - SBCSA No.125/2001, decided on 14/9/2012, relied upon by the learned counsel for the respondent-plaintiff-landlord, this Court held as under:-
7. Having heard the learned counsels, this Court is of the opinion that answer to question No.2 framed above clearly deserves to be given in favour of the plaintiff - landlord in view of decision of this court in the case of Shyam Mahatma vs. Shri Babu Khan reported in 2009(2) RLW 1495 (RaJ.) following the decision of Hon'ble the Supreme Court in the case of Nassiruddin & ors. vs. Sita Ram Agrawal reported in 2003(1) WLC SC - 1498, in which it has been held as under:
"7. Here it may be stated that all these three judgments were rendered by respective learned Single Judges of this Court prior to the decision of Hon'ble Supreme Court In the case of Nasiruddin and Ors. v. Sita Ram Agrawal MANU/SC/0100/2003 : [2003] 1 SCR 634 in which the Hon'ble Supreme Court dealing with the provisions of Rajasthan Rent Control Act 1950 held that the Court has no power to extend the time limit for payment of rent determined under Section 13(3) of the Act and, therefore, the provisions of Section 13(3) and 13(4) were mandatory and the strict compliance therewith was necessary. It will CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 9/14 be appropriate here to quote para No. 36, 37 and 41 to 48 of the aforesaid judgment 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 v. Palanisamy (Dead) by Lrs. and Ors. MANU/SC/1032/2002 :
AIR 2003 SC 4464 , 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. v.
Syeda Vajhiunnissa Begum (Smt.) and Ors.
MANU/SC/0668/1994 : (1994)2 SCC 671. In that view of the matter, balance has to be struck while interpreting the provisions of the Rent Act.
8. 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 CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 10/14 Section 13(4) of the 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 Section 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant Under Section 13(4) of the Act.
44. It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Section 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. Extentlon of prescribed period in certain CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 11/14 cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
46. On perusal of the said Section it is evident that the question of application of Section 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 Clause (a) of Sub-section (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- section (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 CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 12/14 Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under Sub-section (4) of Section 13 of the Act.
9. About the need to comply with the order passed by the Court of Law, Apex Court observed in para 48 of the judgment that compliance of the order passed by the Court of Law in terms of statutory provisions does not give rise to cause of action and the failure to comply with the order, the consequences have to follow. Relevant part of para 48 is as under:
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 Section 5 of the Limitation Act, 1963 has no application in the instant case.
10. In view of the aforesaid legal position now obtaining, the judgments relied upon by the learned, Counsel for the appellant defendant are of no avail to the defendant. There is no question, of waiver on the part of landlord on the delayed deposit of rent in question and CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 13/14 withdrawal thereof by the landlord. Once the delay has occurred even the Court does not have power to extend the time limit, therefore, act of withdrawal of such rent belatedly deposited by the tenant cannot enure to the benefit of defendant tenant.
8. Thus, the legal position is settled beyond the pale of doubt that the delay in deposit of rent as fixed by the trial court provisionally either under Section 7 of the Act or under Section 13(3) of the Act, cannot be condoned be that of one day, one month or more as Section 5 of the Limitation Act does not apply in such cases and as held by the Hon'ble Supreme Court in Nasiruddin & ors. vs. Sita Ram Agrawal (supra) followed by this Court consistently, the delay in deposit of rent in the present case, was bound to result in the eviction decree."
13. In view of the above, the present second appeal filed by the appellant-tenant is found to be devoid of merit and same is liable to be dismissed as no substantial question of law arises in this case and the second appeal is accordingly dismissed. No costs.
14. The appellant-defendant-tenant shall handover the peaceful and vacant possession of the suit premises to the respondent- plaintiff-landlord within a period of one year from today i.e. on or before 1st February, 2016 and shall pay mesne profit @ Rs.1,500/- per month from February, 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 CSA No.250/14 - Om Prakash vs. Devendra Kumar Judgment dt: 12/1/2015 14/14 default in payment of mesne profit, the period of one year 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 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. 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 Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of one year 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 (DR.VINEET KOTHARI), J.
item no. 74 baweja/-