Rajasthan High Court - Jaipur
Radha Kishan vs Lrs. Of Gulshan Behari on 11 October, 2001
Equivalent citations: RLW2003(1)RAJ393, 2002(2)WLN159
JUDGMENT Garg, J.
1. This second appeal has been filed by the appellant-plaintiff against the judgment and decree dated 29.4.1989 passed by the learned District Judge, Churu by which he dismissed the appeal of the appellant-plaintiff and confirmed the judgment and decree dated 16.2.1981 passed by the learned Munsiff, Churu by which learned Munsiff dismissed the suit filed by the plaintiff-appellant for eviction and arrears of rent against the original defendant Gulshan Behari.
2. It arises in the following circumstances :-
The plaintiff-appellant filed a suit for eviction and arrears of rent under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act of 1950') on various grounds including on ground of default under Section 13(1)(a) of the Act of 1950 against original defendant Gulshan Behari on 27.5.1974 stating inter-alia that there was a house belonging to the plaintiff-appellant and the details of which are given in para 1 of the plaintiff and some portion of that house was taken on rent by the original defendant Gulshan Behari on 1.4.1970 and agreed to pay rent of Rs. 30/- per month and executed rent dated Ex./1 in favour of the plaintiff- appellant. It was further stated in the plaint that on 1.6.1970, the original defendant Gulshan Behari further executed a rent deed Ex./2 and took out some other portion of that house on rent and for that he agreed to pay Rs. 30/- per month. It was further stated in the plaint that-original defendant paid rent upto 30.9.1970 and since 1.10.1970 rent was due and thus, default had been committed by the original defendant in making payment of the rent for the period 1.10.1970 upto 30.4.1974, which came to Rs. 2520/- and thus, plaintiff-appellant sought eviction of the original defendant Gulshan Behari on the ground of default under Section 13(1)(a) of the Act of 1950.
It may be stated here that since this second appeal is admitted pertaining to the issue of default, therefore, rest of the averments made in the plaint are not being discussed here.
In para 8 of the plaint, it has been averred by the plaintiff appellant that since rent for the period more than three years had become time barred, therefore, he claimed rent for 36 months only and for that period, he claimed Rs. 2160/- and rest amount he abandoned.
The suit of the plaintiff-appellant on the above point was contested by the original defendant Gulshan Behari by filing written statement on 5.9.1974 stating that whole premises were taken on monthly rent of Rs. 30/- and he had committed no default in making payment of rent as rent was tendered to the plaintiff- appellant through money Orders and when he did not take that rent, he deposited the rent under Section 19A of the Act of 1950 for the period from 1.12.1970 to 30.6.1972.
On the pleadings of the parties, learned Munsiff framed issues on 24.3.1975 and the relevant issue No, 1 is as follows :-
vk;k izfroknh us rkjh[k 1-5-71 ls nk;jh nkok rd fdjk;k vnk ugha fd;k gS blfy;s fMQkYVj gks tkus ls e'rgd csn[kyh gSA Thereafter, evidence was led by both the parties.
After recording evidence and hearing both the parties, the learned Munsiff, Churu through his judgment and decree dated 16.2.1981 dismissed the suit of the plaintiff-appellant. The issue No. 1 was decided in the following manner :-
(1) That the learned Munsiff came to the conclusion that monthly rent of both the premises was Rs. 60/- per month, as per rent deeds Ex. 1 and Ex.2 and thus, original defendant was required to pay Rs. 60/- per month.
(2) That on point of default, the learned Munsiff held that original defendant has not committed any default as on the first date of hearing i.e. on 5.9.1974, he deposited the rent and the details of amount due and the manner in which the payment was made by the original defendant are as under :-
Amount of rent due Mode of payment For the period 1.5.1971to :- Rs. 2400/-
Rs. 2200/- was deposited in cash through tender and the remaining amount of Rs. 5707-was adjusted by original-defendant which was deposited by him u/S. 19A of the Act of 1950on 9,10, 1972.
30.8.1974As Cost :- Rs. 370/-
Total Rs. 2770/-
(3) Thus, learned Munsiff decided issue No. 1 against the plaintiff-appellant and in favour of the original defendant and the suit of the plaintiff-appellant for eviction of the original defendant was dismissed.
Aggrieved from the judgment and decree dated 16.2.1981 passed by the learned Munsiff, Churu, the plaintiff-appellant preferred an appeal before the learned District Judge, Churu, who also through his judgment and decree dated 29.4.1989 dismissed the appeal of the plaintiff-appellant and upheld the findings on issue No. 1 as given by the learned Munsiff, Churu in his judgment dated 16.2.1981. In other words, the learned District Judge accepted the findings in toto of the learned Munsiff on issue No. 1 pertaining to default.' Aggrieved from the said judgment and decree dated 29.4.1989 passed by the learned District Judge, Churu, this second appeal was filed by the plaintiff-appellant.
3. This Court while admiiting this second appeal on 16.9.1991 framed the following two substantial questions of law :-
(1) Whether the trial court erred, in taking into consideration the deposit of Rs. 570/- made by the defendant u/Sec. 19A on 9.10.1972 for a period of 19 months prior to that date as deposit for rent for the period between 1.6.71 and 1.6.74?
(2) Whether the defendant did not cease to be a defaulter despite the deposit of Rs. 2200/- on 5.9.1974 and Rs. 570/- on 9.10.72 in respect of the period of 19 months prior to 9.10.72."
4. The main contention of the learned counsel appearing for the plaintiff-appellant is that the learned Munsiff as well as learned District Judge erred in taking into consideration the amount of Rs. 570/- alleged to have been deposited by the original defendant under Section 19-A of the Act of 1950, as according to him, this deposit made by the original defendant was without complying with the provisions of Section 19A of the Act of 1950 and without any notice to the plaintiff-appellant and thus, since the said deposit under Section 19-A of the Act of 1950 was not a valid deposit, therefore, that amount should have not been adjusted in making payment on first date of hearing and, if this amount was not taken into consideration, the original defendant should have been treated as defaulter and thus, the findings of the courts below on issue No. 1 are erroneous one and should be set aside. In support of this contention, he has placed reliance on two decisions in Kuldeep Singh v. Ganpat Lal and Anr. (1) and Bajranglal and Anr. v. Ramdeo and Anr. (2).
5. On the other hand, the learned counsel appearing on behalf of the LRs of original defendant Gulshan Behari has submitted that the findings of the courts below on issue No. 1 are correct one and they are based on correct appreciation of evidence and law.
6. I have heard the learned counsel appearing for the appellant-plaintiff and the learned counsel appearing for the LRs of original defendant Gulshan Behari and gone through the record of the case.
7. So far as the law laid down in Kuldeep Singh's case (supra) and Bajranglal's case (supra) is concerned, it has been held in both authorities that deposit of rent under Section 19A of the Act of 1950 can be made only if conditions laid down in Clause (c) of Sub-section (3) of Section 19A of the Act of 1950 are fulfilled and unless and until compliance of that clause is made, tenant cannot avail protection of Sub-section (4) of Section 19A of the Act of 1950.
8. The question that arises for consideration is whether the taw laid down in the above two authorities would be applicable to the facts of the present case or not.
9. Both the courts below while deciding issue No. 1 has held that burden to prove issue No. 1 whether original defendant has committed default in making payment of rent or not lies on the plaintiff-appellant and this is one of the aspects of the matter.
10. There is no dispute in this case that the first date of hearing in the Court of Munsiff was 5.9.1974 and from the file of the lower court, it appears that on 5.9.1974, an application was moved by the original defendant Gulshan Behari through his counsel stating that though the monthly rent according to the original-defendant was Rs. 30/-, but since it has been claimed at the rate of Rs. 60/- per month by the plaintiff-appellant arid to avoid future complications, he is ready to deposit rent at the rate of Rs. 60/- per month and rent for the period from 1.5.1971 to 30.8.1974 came to Rs. 2400/- and after adding interest etc., rent came to Rs. 2770/- and out of that amount, since Rs. 570/- has been deposited by him under Section 19A of the Act of 1950 and Rs. 2200/- are being deposited by him through tender and he deposited that amount of rent through tender on 5.9.1974.
11. From the order sheet of the lower court dated 5.9.1974, it further appears that copy of that application, which was filed on the first date of hearing by the original defendant for depositing the rent, as stated above, was given to the learned counsel appearing for the plaintiff-appellant and for that, learned counsel for the plaintiff-appellant sought time to file reply, but the Court ordered that in the meanwhile, original defendant could deposit the rent and the rent was accordingly deposited by the original defendant and the case was ordered to be listed on 17.10.1974.
12. From the order sheet dated 17.10.1974, it appears that learned counsel for the plaintiff-appellant neither intended to file any reply to the application dated 5.9.1974 filed by the original defendant nor he wanted to argue on that application and the case was fixed for settlement of issues on the next date.
13. A bare perusal of the order-sheet dated 17.10.1974 reveals that what was stated and tendered by the original defendant through his application dated 5.9.1974 was accepted by the plaintiff-appellant and thus, there remained no dispute on the point whether the deposit made by the original defendant under Section 19A of the Act of 1950 was valid one or not and the matter ended.
14. When this being the position, the question arises whether the deposit of rent made under Section 19A of the Act of 1950 by the original defendant can be agitated by the plaintiff-appellant in subsequent hearing of the case or not.
15. In my considered opinion, from the following two points of view, plaintiff-appellant cannot take any benefit now :-
(1) That the burden to prove issue No. 1 was on the plaintiff-appellant on the point whether the original defendant has committed default in making payment of rent or not and both the courts below have held that burden to prove issue No. 1 was on the plaintiff-appellant, meaning thereby initial burden to prove issue pertaining to default was on the plaintiff appellant.
The party on whom onus of proof lies must, in order to succeed, establish a prima facie case. He cannot, on failure to do so, take advantage of the weakness of his adversary's case. The Court is also aware of the principle that where both parties have already produced whatever evidence they had, the question of burden of proof ceases to be of any importance.
So far as the facts of the present case are concerned, the plaintiff-appellant did not lead any evidence on the point that the deposit of rent under Section 19A of the Act of 1950 by the original defendant was not in accordance with law. Thus, initial burden has not been discharged by the plaintiff-appellant.
On the contrary, DW-4 Chand Behari S/o Gulshan Behari, who was attorney holder of original on his examination-in-chief that the rent for the month of November and December, 1970 was sent through Money Order and the same was refused and thus, rent to the tune of Rs. 570/- was deposited by him under Section 19A of the Act of 1950. There is no cross examination on that point.
Thus, when the burden to prove the fact that deposit made under Section 19A of the Act of 1950 by the original defendant was not a valid deposit, was on the plaintiff-appellant and he has failed to discharge that burden in the first instance and on the contrary, there is evidence in rebuttal on behalf of the original defendant, in these circumstances, it would be held that deposit under Section 19A of the Act of 1950 by the original defendant was a valid deposit.
(2) On second point, as stated above, from the order sheet dated 5.9.1974, it appears that learned counsel appearing for the plaintiff-appellant in the lower court agitated the point that the said tender was not in accordance with law and therefore, he sought time to file reply to the application filed by the original defendant on first date of hearing i.e. on 5.9.1974 and because of this dispute, the Court directed the original defendant to deposit the rent as per his application dated 5.9.1974 and he accordingly deposited the rent and the case was ordered to he listed on 17.10.1974 and on that day, learned counsel appearing for the plaintiff-appellant did not file any reply and he also did not argue the matter on the said deposit, meaning thereby the facts staled in the application dated 5.9.1974 filed by the original defendant, were accepted to be correct by the plaintiff-appellant.
When this being the position, this Court is of the opinion that now by conduct the plaintiff-appellant is now estopped from challenging that deposit, as out of three kinds of estoppel, one kind of estoppel can be found from the records of the Court. The conduct of the learned counsel appearing on behalf of plaintiff- appellant in the lower court when no objection was taken by him on next date of hearing on 17.10.1974 as to the said deposit, would create an estoppel preventing plaintiff-appellant from challenging that order and for that Section 115 of the Evidence Act may be referred to.
Apart from this, if a tenant deposits the amount of rent in the Court under Section 19A of the Act of 1950, that amount, in my considered opinion, should be adjusted against the arrears of rent, especially in a case where tenant informs the Court on the first date of hearing about this deposit and no objection in taken by the plaintiff-landlord and if any objection is taken but subsequently, the same was waived or not contested or not found true by the Court.
In the present case, on the first date of hearing i.e. on 5.9.1974, the learned counsel appearing for the plaintiff took objection about the deposit, but on the next date of hearing, he waived that objection and hence, tender which was made by the original defendant on the first date of hearing would amount to valid tender including that amount which was deposited under Section 19A of the Act of 1950.
16. Thus, from both points of view as stated above, the plea that the deposit of rent to the tune of Rs. 570/- under the provisions of Section 19A of the Act of 1950 was not valid, deposit cannot be raised now. Hence, the findings of both courts below that the original defendant did not commit any default in making payment of rent are liable to be confirmed one and issue No. 1 was rightly decided by the courts below. The courts below have rightly held that on the first date of hearing i.e. on 5.9.1974, the rent due was paid by the original defendant and that payment includes the payment which was made by the original defendant under Section 19A of the Act of 1950.
17. In the above background, the above two authorities on which reliance has been placed by the learned counsel appearing for the appellant-plaintiff would not be helpful, so far as the facts of the present case are concerned.
Thus, both the substantial questions are answered in the following manner :-
Substantial question Answer (1) Whether the trial court erred in tak-ing into consideration the deposit of Rs. 570/- made by the defendant u/Sec. 19A on 9.10.1972 for a period of 19 months prior to that date as deposit for rent for the period between 1.6.71 and 1.6.74?
The learned trial court did not err in taking into consideration the deposit of Rs. 570/- made by the original defendant under Section 19A of the Act of 1950 on 9.10.1972 for a period of 19 months prior to that date as deposit for rent for the period between 1.6.1971 and 1.6.1974. The original defendant would not be called defaulter after the deposit of rent under Seclion 19A of the Act of 1950.
(2) Whether the defendant did not case to be a defaulter despite the deposit of Rs. 2200/- on 5.9.1974 and Rs. 570/- on 9.10.72 in respect of the period of 19months prior to 9.10.72."
Hence, both the questions are answered against the plaintiff- appellant and in favour of LRs of original defendant Gulshan Behari.
For the reasons stated above, this second appeal is liable to be dismissed and the same is hereby dismissed, after confirming the impugned judgments and decrees of the courts below.
No order as to costs.