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.
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
Citation; AIR 2015 Raj56
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.
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
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;
(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
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:-
“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
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
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
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
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
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
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
nt dt: 12/1/2015
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
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.
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.
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
Citation; AIR 2015 Raj56
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.
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
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;
(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
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:-
“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
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
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
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
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
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
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
nt dt: 12/1/2015
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
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.
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