1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Gopal Singh Vs. Civil Judge (Jr. Division), Bijaynagar, District Ajmer & Ors. (S. B. Civil Writ Petition No.10249/2010) S. B. Civil Writ Petition under Article 227 of the Constitution of India. Date of Judgment: September 06, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN REPORTABLE Mr.Jai Prakash Gupta, for the petitioner. BY THE COURT: The petitioner is Aggrieved by the order dated 20.04.2010, passed by the Civil Judge (Junior Division), Bijaynagar, District Ajmer, whereby the learned civil Judge had dismissed the petitioner's application filed under Section 13(3) (4) of Rajasthan Premises (Control of Rent and Eviction), Act 1950 ('the Act', for short) read with Section 5 of the Limitation Act for extension of time, and had allowed the application filed by the plaintiff-non-petitioners under Section 13 Sub-section 5 of the Act and had struck off the defence of the petitioner. The petitioner is also aggrieved by the order dated 12.07.2010, passed by the Additional District and Session Judge, Beawar, 2 whereby the learned Judge has dismissed the appeal filed by the petitioner and has confirmed the order dated 20.04.2010. The brief facts of the case are that the non-petitioner No.3, Mool Chand, had filed a civil suit for eviction against the petitioner under the Act on three grounds : firstly, the petitioner had defaulted in paying the rent; secondly, he was not using the shop for the last six months; thirdly, he had sublet the shop to another person. Mool Chand had also pleaded that there was arrears of rent of Rs.1899/- outstanding against the petitioner. During the pendency of the suit with the death of Mool Chand, Shiv Kumar was substituted as his legal representative. The petitioner filed his written statement and denied the averments made in the plaint. During the pendency of the suit on 28.04.2000 under the provisions of Section 13(3) of the Act, the learned trial court determined the provisional rent and directed that the said rent be paid within the statutory period. On 20.10.2000, the non-petitioners moved an application under Section 13(5) of the Act claiming that since the petitioner has failed to deposit the provisional rent within the statutory period, therefore, his defence should be struck off. Surprisingly, although the non-petitioners had moved their 3 application on 20.10.2000, the petitioner did not file his application for extension of time and for condonation of delay till 19.03.2010. It is in his application dated 19.03.2010 filed under Section 13(3)(4) of the Act read with Section 5 of the Limitation Act that the petitioner admitted that he had deposited the rent for the month of April, 2000 not on 15.05.000 but on 19.05.000. Thus, he admitted that there is a delay of four days. Moreover, he admitted that the arrears of rent were deposited on 14.06.2000. Therefore, this delay should be condoned. However, after hearing both the parties vide order dated 20.04.2010 the learned Civil Judge dismissed the application filed by the petitioner, but accepted the application filed by the non-petitioners and struck off the defence of the petitioner. Since the petitioner was aggrieved by the said order, he filed an appeal before the learned Judge. However, vide order dated 12.07.2010, the learned Judge dismissed the appeal and confirmed the order dated 20.04.2010. Hence, this petition before this Court. Mr. Jai Prakash Gupta, the learned counsel for the petitioner, has vehemently contended that in the order dated 20.04.2010, the learned Civil Judge had not specified the period within which the amount determined under Section 4 13(3) of the Act had to be deposited. Secondly, Between 10.05.2000 and 18.05.2000, the petitioner had fallen ill to the extent that he could not move. Therefore, he had deposited the rent for April, 2000 on 19.05.2000. Hence, there is a delay of only four days in depositing the said amount. Thirdly, relying on the cases of Lalchand Vs. Santram [1978 WLN 133] and Raj Kumar & Anr. Vs. Lal Chand & Anr. [1987 (2) WLN 962], the learned counsel has contended that an application for extension of time and for condonation can be filed at any time. Thus, the petitioner was justified in filing the application for condonation after the period for depositing the amount was over. Therefore, the reasoning of the learned Judge that the petitioner should have filed his application for extension of time within fifteen day given to him for depositing the amount determined under Section 13(3) of the Act is misplaced. Fourthly, in case the petitioner fails to deposit the amount within fifteen days, he could deposit the said amount within a period of three months thereafter. The petitioner had deposited the amount within the period of three months. Therefore, the delay in depositing the amount for April, 2000 should have been condoned by the learned Civil Judge. Fifthly, considering the fact that under Section 13(4) of the Act, the Court has the power to extend the time, the Court should have exercised the said 5 power. Sixthly, considering the fact that the petitioner had deposited not only the rent of April, 2000, but had also deposited the advance rent till March, 2001, his intention to pay the rent is crystal clear. Therefore, considering his bona fide intention, the learned Judge should have condoned the delay. Lastly, according to the learned counsel, both the learned courts below have erred in holding that the application for extension of time should have been filed before the expiry of fifteen days which is the statutory period for depositing amount determined under Section 13(3) of the Act. Heard the learned counsel for the petitioner and perused the impugned orders. Section 13 of the Act is as under : 13. Eviction of tenants : (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied. (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; (b) that the tenant had willfully caused or permitted to be caused substantial damage to the premises; or 6 (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court, has materially altered the premises or is likely to diminish the value thereof; or (d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or (e) that the tenant has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord; or (f) that the tenant has renounced his character as such or denied the title of the landlord and the later has not waived his right or condoned the conduct of the tenant; or (g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or (h) that the premises are required reasonably and bona fide by the landlord :- (i) for the use or occupation of himself or his family; or (ii) for the use or occupation of any person for whose benefit the premises are held; or (iii)for a public purpose; or (iv) for philanthropic use; or 7 (i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or (j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; (k) that the landlord requires the premises in order to carry out any building work :- (i) at the instance of the State Government in pursuance of an improvement scheme or development scheme; or (ii) because the premises have become unsafe or unfit for human habitation; or (iii) upon the requisition of a local authority; or (l) that the landlord has been required by any authority under any law to abate the overcrowding of the premises. (2) The Court may presume that premises let for use as a residence were or are sub let by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period of exceeding one month otherwise than in commensurability with the tenant. (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 8 which shall not be more than three months after filing of the written statement and shall be before the framing of the issue, 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 up to 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 percent per annum from the date when any such amount was payable up to 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 the 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 subsequent to the period up to 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). 9 (5) If a 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 any relief under this sub- section, if having obtained such benefit or benefit 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. (7) If in any suit referred to in sub-section (3) there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit. (8) In case at the time of decision of the suit - (a) the court finds that the amount of rent provisionally determined by it under sub- section (3) and deposited in court or paid to the landlord under sub-section (4) is less than the amount of rent finally decided as payable by the tenant, the court shall pass a decree for the balance amount against the tenant; (b) the court finds that the amount determined and deposited or paid as aforesaid is in excess of the amount of 10 rent finally decided as payable by the tenant, the court shall, in the event of passing a decree for eviction against the tenant on ground other than that set forth in clause (a) of sub-section (1), also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction, it shall direct in the decree, that such excess amount will be adjusted by the landlord against future rent payable by the tenant. (9) where any decree or order for the eviction of an tenant is made on the ground specified in sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of two months from the date of the decree or order. A bare perusal of the provision clearly reveals that under Section 13(a) of the Act, the landlord is entitled to seek eviction on the ground that the tenant has neither paid, nor tendered the amount of rent due from him for six months. Thus, it deals with the ground of default in payment of rent. Section 13(3) of the Act deals with eviction on ground of default of payment. Sub-clause (3) imposes a legal duty on the court to determine provisionally the amount of rent to be deposited in court, or to be paid to the landlord by the tenant. The said Section also prescribes the factors which need to be kept in mind while determining the amount provisionally, 11 and further permits the court to direct that a 6% interest on the said amount shall be payable upto the date of determination by the tenant. The proviso debars the court from considering the amount of rent which is barred by limitation while determining the amount of rent to be paid provisionally by the tenant. Sub-clause (4) can be divided into two parts: the first part deals with the amount determined by the court under Sub-clause (3). This part also imposes duty on the tenant to deposit the said amount “within fifteen days from the date of such determination”. However, the said amount can also be deposited within such further time “not exceeding three months as may be extended by the court”. Therefore, the first part empowers the court to extend the period for depositing the amount by maximum of three months. The second part imposes a duty on the tenant to pay the monthly rent either to the landlord or to deposit the same in the court subsequent to the period upto which the determination has been made under Section 13(3) of the Act. The said monthly rent should be paid by the fifteenth of each succeeding month or within a further time not exceeding fifteen days as may be extended by the court. 12 The scope and ambit of Section 13(4) of the Act is no longer res integra as the same has been discussed and propounded by the Hon'ble Supreme Court in the case of Nasiruddin & Ors. Vs. Sita Ram Agarwal [AIR 2003 SC 1543]. In order to decide the present case, it is imperative to consider the facts of the Nasiruddin & Ors. (supra) case. Nasiruddin, the appellant, was landlord of the suit premises, whereas Sita Ram Agarwal, the respondent, was the tenant therein. Since the respondent had defaulted in payment of rent from 01.08.1986 to 31.01.1987, Nasiruddin had filed a suit for eviction under the Rajasthan Premises (Control of Rent and Eviction), 1950. Vide order dated 09.09.1991, while exercising the power under Section 13(3) of the Act, the court had directed the respondent to deposit the arrears in the court. However, the respondent failed to do so. Subsequently, on 09.11.1993, the respondent filed an application for condonation of delay. However, the said application was dismissed by the learned Civil Judge. Thereafter, a revision application was filed ostensibly on the ground that there is no bar for filing an application for condonation of delay after expiry of the period specified for depositing of rent. Although there was already a judgment of the Full Bench of this Court in the case of Gopal Dass & Ors. Vs. Nathulal Baraya [AIR 1983 Raj 222], wherein this 13 Court had held that an application under Section 5 of the Limitation Act was maintainable, still a learned Single Judge of this Court, while hearing the revision petition, was of the view that the Full Bench decision related to Section 13-A(b) of the Act and did not relate to Section 13(4) of the Act. Therefore, the learned Judge was of the opinion that the judgment of Gopal Dass & Ors. (Supra), in fact, should be referred to a Larger Bench. Thus, the matter was placed before a Full Bench of five Judges. By majority of 3:2, this Court held that Section 5 of the Limitation Act is applicable where there is a default in depositing the arrears of rent within specified period. It is this judgment of the Full Bench which was challenged in the case of Nasiruddin & Ors. (Supra) before the Apex Court. It is in these circumstances that the Apex Court was called upon to interpret the scope and ambit of Section 13 and especially of Section 13(4) of the Act. While interpreting Section 13(4) of the Act, the Hon'ble Supreme Court has opined that the word “shall” imposes a mandatory duty upon the tenant to deposit the amount determined under Section 13(3) of the Act within a period of fifteen days. Moreover, it held that although the power to extend the period does exist within the court, however, the court cannot extend the period 14 for depositing the amount beyond three months. The Apex Court also opined that the power to condone the delay does not lie with the court. Therefore, an application under Section 5 of the Limitation Act is not maintainable. Holding so, the Hon'ble Supreme Court quashed and set aside the decision of the Full Bench of this Court. In the cases of Lalchand (Supra) and Raj Kumar & Anr. (Supra), this Court had held that the application for seeking extension of time can be moved either before or after the expiry of the period. Secondly, that the civil court had the power to condone the delay. However, in light of the pronouncement of the Hon'ble Supreme Court in the case of Nasiruddin & Ors. (Supra), obviously both these case stand impliedly overruled. Therefore, the learned counsel for the petitioner is not justified in relying upon these two cases to buttress his contention that the appellant was justified in moving his application after the period for depositing the amount had expired. A more detailed analysis of Section 13(4) of the Act clearly reveals that the word “shall” imposes a mandatory duty upon the tenant to deposit the amount determined under Section 13(3) of the Act within a period of fifteen days. In case the tenant is unable to deposit the amount 15 within the period of fifteen days, he is free to move an application for extension of time beyond the period of fifteen days. According to Section 13(4) of the Act, the court has the power to extend the time upto a maximum of three months and not beyond. Obviously, in case the tenant wants the statutory limit to be extended to a maximum of three months, he must file the application before the duration of fifteen days is over. Since a mandatory duty has been imposed upon him for depositing the rent within fifteen days, the mandatory duty must be fulfilled by him. In case he cannot fulfill the statutory duty, he must ask for extension of time before the said period is over. In case the tenant were to file his application after the statutory period of fifteen days is over, he would be required to file an application for condonation of delay for his failure to perform his statutory duty within the statutory stipulated period. However, According to the decision of the Apex Court in the case of Nasiruddin & Ors. (Supra), the power to condone the delay under the Limitation Act has not been bestowed upon the court in an application filed under Section 13(4) of the Act. Therefore, in case the tenant wants the court to extend the period for depositing the amount, obviously the 16 application has to be filed before the completion of fifteen days. Therefore, in the present case, both the learned courts below were justified in holding that since the application for extension of time was not filed within the stipulated period of fifteen days, the application deserves to be dismissed. As mentioned above, in the present case the landlord had filed his application under Section 13(5) of the Act for striking out the petitioner's defence on 20.10.2000. Curiously, the petitioner did not file his application for seeking extension of time till 19.03.2010. Hence, he filed the application after an inordinate delay of ten years. Curiously, the petitioner did not file his application immediately after the application had been filed by the landlord, but he slept over the entire issue for the ten long years. Therefore, the contention of the learned counsel that in case the application is filed within 105 days (fifteen days plus three months) from the date of determining of the amount to be deposited, the application should have been allowed is untenable. Afterall the application filed by the petitioner was not filed within 105 days from 20.04.2000, but was filed ten years thereafter! Thus, the said contention is absolutely unacceptable. 17 In the case of Shri Lakshmi Venkateshwara Enterprises Pvt. Ltd. Vs. Syeda Vajhiunnissa Begum (Smt) & Ors. [(1994) 2 SCC 671], the Apex Court has opined that the Rent Control Act is not only a beneficial enactment for the tenants, but is also a beneficial enactment for the landlord. Therefore, when Section 13(4) of the Act imposes a mandatory duty upon the tenant to pay the amount determined under Section 13(3) of the Act within fifteen days, the said mandatory duty has to be fulfilled within the statutory period. Of course, the tenant is free to seek an extension of the period. But in case he fails to seek the extension within the stipulated period of fifteen days, then the natural consequences of his defence being struck out necessarily follows. In the present case, the petitioner had failed to deposit the amount within the stipulated period of fifteen days. Therefore, both the learned courts below were justified in striking out his defence. Thus, for the reasons stated above, this Court does not find any illegality or perversity in the impugned orders. This petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki