CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 1/10 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Dharmendra Kumar VS. Bhanwar Lal & Ors. S.B. CIVIL WRIT PETITION NO.3370/2006 under Article 227 of the Constitution of India. Date of judgment : 5th May, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. R.K. Thanvi ) for the petitioner. Mr. Narendra Thanvi) Mr. Rakesh Arora for the respondents. -------- REPORTABLE BY THE COURT:- (Oral) 1. This writ petition has been filed by the landlord Dharmendra Kumar being aggrieved by the order of the learned Appellate Rent Tribunal, Pali dated 7.4.2006 whereby the Appellate Tribunal allowed the appeal of the tenant Bhanwar Lal against the eviction decree dated 28.1.2006 passed in favour of the landlord on the ground of default in payment of rent under Section 9(a) of the Rajasthan Rent Control Act, 2001. 2. The learned Appellate Tribunal has held in CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 2/10 favour of the tenant in para No.9 onwards in the impugned judgment dated 7.4.2006 that two provisos of Section 9(a) of the Act envisage giving of two separate notices by the landlord to the tenant before such landlord can file application for eviction in the Rent Tribunal, the first notice informing the Bank account number in the same municipal area to the tenant and a second notice demanding arrears of rent within a period of 30 days from the date of service of the notice. 3. The learned counsel for the petitioner landlord Mr. R.K. Thanvi urged that the leaned Appellate Tribunal has erred in construing the provisions of Section 5(4) & Section 9 of the Act and has further erred in holding that two separate notices are required to be given in compliance with two provisos of Section 9(a) of the Act and, therefore, the said order deserves to be set aside. 4. On the other hand, the learned counsel for the respondent-tenant Mr. Rakesh Arora sought to justify the impugned appellate order on the grounds stated in the impugned order and he submitted that even the notice Exhibit 2 dated 25.10.2004 was not received by the respondent-tenant in the matter. He submitted that though Exhibit 2 notice dated 25.10.2004 and Exhibit 3 postal CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 3/10 Receipt as well as Exhibit 4 AD Receipt were filed by the applicant landlord, however, the said landlord in his cross- examination has admitted that the signatures on the AD receipt Exhibit 4 were not decipherable that the same were of tenant Bhanwr Lal and, therefore, it was not even proved that the said notice was served on the respondent tenant. He submits that the arrears of rent were deposited in the bank account of the petitioner landlord on 26.4.2005 by deposit of sum of Rs.4,000/- at the rate of Rs.250/- per month for 16 months from February 2004 to June 2005 after filing of the eviction application under Section 9 of the Act on 14.4.2005. On the Court query, he submitted that the respondent tenant did not send any money order for arrears of rent to the petitioner landlord. 5. I have heard learned counsels and perused the record. 6. The case calls for interpretation of relevant provisions of Section 5 and Section 9(a) of the Rajasthan Rent Control Act, 2001. Both these provisions are reproduced hereunder in extenso for ready reference:- “Section 5. Payment and remittance of rent by tenant.-- (1) Unless agreed otherwise every CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 4/10 tenant shall pay the rent by the fifteenth day of the month next following the month for which the rent is payable (2) Every tenant who makes a payment on account of rent shall be entitled to obtain a receipt of the amount paid duly signed by the landlord or his duly authorised agent. (3) A tenant may make payment to the landlord or his duly authorised agent, by any of the following methods:-- (a) by personal payment, by cash, by Cheque or Bank Draft, or (b) by payment in the bank account as may be specified by the landlord Or (c) by remitting through postal money order. (4) The landlord shall disclose to the tenant his bank account number and name of the bank in the same Municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due.” Section 9. Eviction of tenants-- Notwithstanding anything contained in any other law or contract but subject to other provisions of this Act, Rent Tribunal shall not order eviction or tenant unless it is satisfied that,-- (a) the tenant has neither paid nor tendered the amount of rent due from him for four months: Provided that the ground under this clause shall not be available to the landlord if he has not CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 5/10 disclosed to the tenant his bank account number and name of the bank in the same Municipal area, in the rent agreement or by a notice sent to him by registered post, acknowledgment due: Provided further that no petition on the ground under this clause shall be filed unless the landlord has given a notice to the tenant by registered post, acknowledgment due, demanding arrears of rent and the tenant has not made payment of arrears of rent within a period of thirty days from the date of service of notice; Explanation:- For the purpose of this clause, the rent shall be deemed to have been tendered when the same is remitted through money order to the landlord by properly addressing the same; or” 7. Section 5(a) of the Act clearly stipulates that unless it is agreed otherwise, every tenant shall pay the rent by the fifteenth day of month next following the month for which the rent is payable. Thus, the obligation to pay the rent is clearly cast upon the tenant in the said enactment. Upon payment of rent, the tenant is entitled to obtain a receipt of the amount paid duly signed by the landlord or his duly authorised agent as prescribed in Section 5 (2) of the Act. Sub-section (3) of Section 5 enumerates three different modes of payment of rent by the tenant to the landlord. It can be by way of personal payment by cash, by cheque or bank account or it can be by way of payment CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 6/10 directly in the bank account of the landlord as may be specified by him. The third mode is by remitting through the postal money order. The requirement of sub-section (4) of Section 5 of the Act that the landlord shall disclose to the tenant his bank account number and name of the bank in the same Municipal area in the rent agreement or by a notice sent to him by registered post, acknowledgment due apparently applies and is attracted only in the case of situation where the payment of rent is envisaged to be made directly in the bank account of the landlord which is required to be specified by him. Therefore, unless the landlord signifies his intention to receive the payment of rent directly in his bank account, there is no question of landlord informing the bank account number to the tenant. Therefore, sub-section (4) of section 5 of the Act has to be read only along with Section 3 (b) of the Act and the question of disclosing the bank account number to the tenant does not arise if the mode of payment of rent specified in sub-section (3)(a) or clause (c) is adopted by the parties. 8. The question of filing application for eviction on the ground of default stipulated in Section 9(a) of the Act arises only if the tenant has neither paid nor tendered the amount of rent due from him for four months. The first CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 7/10 proviso to Section 9(a) of the Act stipulates that the ground of default in a eviction application shall not be available to the landlord if he has not disclosed to the tenant his bank account number and name of bank in the same Municipal area in rent agreement or by a notice sent to him by registered post acknowledgment due. This situation would arise if only the tenant fails to pay the rent in other modes stipulated in Section 5 (3)(a) and (c) of the Act and thus, apparently there is a default in payment of rent by the tenant. If such a situation comes then the landlord is expected in law to give his bank account number and name of the bank unless the same is already given in the rent agreement, by a notice sent to the tenant by registered AD post. The legislature has given a further stipulation in second proviso to Section 9 (a) of the Act whereby the landlord has been directed to give a notice to the tenant by registered post acknowledgment due demanding such arrears of rent and give a period of at least 30 days from the date of service of notice so that the tenant can wipe out the said default of payment of arrears of rent within a period of 30 days given in the said notice. The contention of the learned counsel for the respondent tenant that two provisos of Section 9(a) of the Act envisage two separate notices by the landlord to the tenant, one giving his bank account number and another demanding the arrears of rent is CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 8/10 misconceived. The said two provisos have to be read harmoniously and in sequence and that is the golden rule of interpretation of plain language of the provisions. As already aforesaid, the question of giving bank account number arises only if the mode of payment stipulated in Section 5(3) (b) of the Act is to be resorted to. If the rent by other modes is not paid or tendered then the landlord is expected and directed to give a notice to the tenant informing him the arrears as well as informing him the bank account number in which such arrears can be paid within 30 days from the date of service of the notice. Despite such notice, if the tenant fails to pay the arrears, the landlord is at liberty to file application seeking eviction on the ground of default under Section 9(a) of the Act. Reading the requirement of giving two separate notices in compliance with two provisos of Section 9(a) of the Act would be putting a condition in the statute which is not envisaged in the said provision. The first proviso of Section 9(a) does not give any time frame for giving such notice or a period for compliance with such a notice. The purpose of giving of such notice to the tenant is only to put the tenant to notice that unless the arrears are cleared and paid within 30 days of the said notice if not already paid by other modes of payment to pay by mode of directly paying rent / arrears of rent in the bank account number of the CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 9/10 landlord, is achieved by a single notice to the tenant and such single notice fully complies with the requirement of both the provisos at the same time. 9. As far as Explanation to Section 9(a) of the Act is concerned, the same has to be read with language of Section 9(a) of the Act which uses the terms “neither paid nor tendered the amount of rent”. The word “tendered” has been explained by way of Explanation to Section 9(a) of the Act and amount of rent shall be deemed to have been tendered only when the same is remitted through money order to the landlord by properly addressing the same. Thus, the legislature has now provided for a statutory presumption of 'tendering of rent' in the form of remittance through money order to the landlord by properly addressing the same so that the Government agency in the form of postal authority comes in between and a presumption of such tendering of rent amount can be drawn by the courts. In the present case, as already observed the tenant did not tender the amount of rent in question by sending the money order to the landlord. 10. Thus, in the considered opinion of this Court, the only ground furnished by the Appellate Rent Tribunal for allowing the appeal of the respondent-tenant that since CW-3370/06- Dharmendra Kumar Vs. Bhanwar Lal & Ors. : Judgment dt.5.5.08 10/10 two separate notices were not given by the petitioner landlord in compliance with the two provisos of Section 9 (a) and therefore, the petitioner landlord could not file the application under Section 9(a) of the Act is not sustainable in the eye of law. Since admittedly the arrears of rent were not paid by the respondent tenant within 30 days of the said notice Exhibit 2 dated 25.10.2004 but were only paid in bank account number on 26.4.2005 only, after filing of the application under Section 9 of the Act on 14.4.2005, the learned Rent Tribunal was absolutely justified in passing the aforesaid eviction decree against the respondent-tenant and the same was wrongly set aside by the Appellate Rent Tribunal by the impugned order dated 7.4.2006. 11. Consequently, this writ petition is allowed and the impugned order of Appellate Rent Tribunal dated 7.4.2006 is quashed and set aside and eviction decree of the Rent Tribunal dated 28.1.2006 is restored. No order as to costs. [ DR. VINEET KOTHARI ], J. item No.40 babulal/