SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 1/30 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.128/1992 Bulaki Dass S/o Asha Ram Purohit versus Ram Swaroop S/O late Dwarka Dass Rathi PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.J.L.Purohit, for the appellant. Mr.Jitendra Chopra, for the respondent. REPORTABLE DATE OF JUDGMENT : 16TH February, 2009. JUDGMENT 1. This second appeal has been preferred by the tenant – defendant Bulaki Dass against the concurrent judgments of two Courts below giving eviction decree against him and in favour of the plaintiff Ram Swaroop on the ground of second default being committed in payment of rent by the tenant. SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 2/30 2. The Courts below found that earlier suit filed by the plaintiff land-lord, namely, suit No.55/1977 was decided on 22.7.1978 giving benefit of first default to the tenant under the provisions of Sections 13(6) of the Rajasthan Rent Control Act, 1950. On other issues, the plaintiff filed an appeal being appeal No.52/1978 against the said judgment of the learned trial Court which also came to be dismissed by the first appellate Court on 11.7.1980 and the present second suit was filed by the plaintiff, namely, Suit No.58/1981 on 4.2.1981 on the ground that the tenant had committed second default in payment of rent for the month of June, 1980 to January, 1981 viz. for seven months. The said suit was decreed by the learned trial Court on 17.12.1986 and the first appeal filed by the defendant – tenant also came to be dismissed, namely appeal no.3/1987 by the court of learned Additional Dist. Judge No.2, Jodhpur on 23.10.1992. Being aggrieved by the said judgment and decree of both the courts below, the defendant has approached this Court by way of present second appeal which was admitted by this Court on 1.11.1992 on the following substantial question of law framed by this Court on 1.12.1992: SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 3/30 “(i) Whether the sending of the money orders for the rent in relation to the months of September, October, November and December, 1980 and refusal of the same by the landlord amounts to valid tender by the tenant under sec. 13(1)(a) and, therefore, the tenant cannot be held to be defaulter on account of non-payment of rent for these months and therefore, no decree for eviction can be passed against the appellant? 3. Mr. J.L. Purohit, learned counsel appearing for the tenant – appellant submitted that the rent for the month of June, 1980 of Rs.35/- was tendered in the Court of learned Munsif Magistrate on 10.7.1980, but the same was deposited on 14.7.1980 and similarly rent for the month of July, 1980 vide Ex.A/1 was deposited in the same Court on 14.8.1980, whereas the rent for the month of August, 1980 was deposited vide Ex.A/2 on 12.9.1980. He further submitted that for the month of September, 1980, money order of Rs.35/- vide Ex.A/3 was sent on 16.10.1980 and for October, 1980 vide Ex.A/6 money order was sent on 10.11.1980 and for November, 1980 vide Ex.A/7 money order of Rs.105 (for three months September to SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 4/30 November, 1980) was sent on 10.12.1980. He further submitted that since all these three money orders were returned with remarks ‘refused’ by the plaintiff landlord vide Ex.A/10, the money order of Rs.140/- (for four months September to December, 1980) was sent on 10.1.1981. Since the said money orders were refused, he submitted that under section 19A of the Act, vide Ex.A/11, a sum of Rs.175/- was deposited in the court of learned Munsif on 10.2.1981 for the month of September, 1980 to January, 1981 at the rate of Rs.35/- per month for five months. He submitted that the Courts below have, therefore, erred in holding against the defendant – tenant that he had committed second default and the said payment of rent was not valid tender in the eye of law and since the defendant - tenant was ready and willing to pay rent for the suit premises, no eviction decree could be passed against him. He relied upon the following judgments in support of his submissions. 4. The learned counsel for the appellant has relied upon the decision of Hon'ble Supreme Court in the case of P.M. Punnose V/s K.M.Munneruddin reported in AIR 2003 SC 2993 in which the Hon'ble Supreme Court has observed as under: SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 5/30 “16. There appears to be a bona fide dispute as to the quantum of arrears, that is, as to what was the exact amount of rent paid by tenant – appellant to the landlord- respondents and consequent upon which payment the liability for how many number of months came to be extinguished. The facts found indicate the tenant – appellant remitting the amount of rent by money roders before and after and even during the pendency of the proceedings and some of the money orders having been refused by the landlord-respondents. The present one is a fit case where the Controller should have exercised his power under proviso to sub-section (2) of Section 10 of the Act by passing an order thereunder and giving the tenant – appellant a reasonable time, not exceeding 15 days, to pay or tender the rent due by him to the landlord upto the date of such payment of rent. If such order was complied with by the appellant – tenant, then the application for eviction should have been rejected. The learned Controller has erred in not passing that order.” SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 6/30 5. In the case of Shiv Dutt Jadiya V/s Ganga Devi reported in (2002) 3 SCC 189, the Hon'ble Supreme Court has observed as under: “On a suit for eviction being instituted, in respect of compliance with sub section (4) by th tenant as contemplated by Section 13 of the Rajasthan Premises (Control of Rent and Evicdtion) Acdt, 1950, the expression used is “Court”. The legislature has not chosen to use the words “trial court” in the framing of Section 13. Ordinarily, an appeal is a continuation of suit. The tenant is bound to comply with the provisions of sub-section (4) if the claim for eviction on having been denied by the trial court is pursued in appeal by the landlord. In spite of a decree for eviction having been refused by the trial court, the appellate court may still, in an appeal preferred by the landlord, pass a decree for eviction. On the date of the passing of the decree, the appellate court shall have to see, in view of the SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 7/30 obligation caste on it by sub-section (6), whether the tenant had made deposit or payment, as required by sub- section (4). Any view to the contrary may result in creating an incongrous or inequitable situation.” 6. In the case of Kailash Chandra V/s Sri Kishan reported in AIR 1998 Raj. 131, the Full Bench of this Court has held as under: “32. Thus, the golden rule of interpretation i.e. The literal interpretation was violated and, therefore, the law laid down in the cases of Hanuman Prasad V/s Gaindi Lal ( AIR 1974 Raj. 41); Choit Ram V/s Ramdeen and Hanspuri V/s Bhanwar Lal, (1987 RajLW 395) is held not to be a good law. The question referred to this Bench is answered accordingly and it is held that as and when a suit, first or subsequent is filed, the Court seized the of the suit is required to determine the provisional rent as provided Section 13(3) of the Act.” SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 8/30 7. In the case of Mahendra Raghunathdas Gupta V/s Vishwanath Bhikaji Mogul and ors. reported in AIR 1997 SC 2437, the Hon'ble Supreme Court has observed as under: “8. Two things arise for consideration (1) if the tenant was justified in sending the rent to the lawyer in spite of his notice to send the rent to his client and (2) if the tender of rent by cheque is a valid tender. Taking the second point first merely because the tenant has made payment of rent by cheque, it cannot be assumed that the tenant was not ready or willing to pay arrears of rent.” 8. In the case of Smt. Manak Bai V/s Kalyan Bux reported in 1989(2) RLR 704, this Court has held as under: When the tenant acts in any of the methods providded in clause (a), (b) and (c) of sub-section (3) of Section 19- A, he will be deemed to have paid or tendered the amount of rent and as such ground contained in clause (a) of Section 13(1) would not be made out as tenant SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 9/30 would be deemed to have paid or tendered the amount of rent due from him and in this manner he can escape the liability from eviction on the ground of default of payment of rent. Even if sub-section (4) would not have been there, as regard remittance of rent by money order it could not be held that clause (a) of sub-section (1) of Section 13 is satisfied and such a finding could not be arrived at, that the tenant has neither paid nor remitted the amount of rent due from him for six months. Thus, if the tenant acts in any of the methods provided in sub-section (3) of Section 19-A, he can escape the liability from eviction on the ground of default in payment of rent under section 13, in view of sub-section (4) of Section 19-A of the Act.” 9. On the side opposite, Mr. Jitendra Chopra, learned counsel appearing for the plaintiff – respondent vehemently submitted that the concurrent findings of two courts below about the second default is finding of fact and as a matter of fact, no substantial question of SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 10/30 law arises in the present appeal. However, on the substantial question of law, framed by the Court as quoted above, he submitted that since both the courts below had found that the tenant had failed to pay rent for three months from June, 1980 to August, 1980 as alleged deposit in the Court of learned Munsif without following the procedure under Section 19A of the Act was not deposit at all and since the earlier suit proceedings stood terminated on 11.7.1980 with the dismissal of the appeal of the plaintiff himself by the first appellate Court, the alleged deposit by the tenant on 14.7.1980 three days thereafter for the month of June, 1980 after the decision of said appeal in the Court of learned Munsif is no valid tender of rent in the eye of law. Similarly he submitted that for the month of July, 1980 and August, 1980 also, the alleged deposit in the same Court by the tenant was of no consequence and thus, six months' second default stood completed with the non-payment of rent from June, 1980 to November, 1980. He also submitted that since there was no payment of rent for three months from June, 1980 to August, 1980, the plaintiff landlord was well within his right to refuse money order for the month of September, 1980 to November, 1980 and since the tenant had deposited the said rent for the month of September, 1980 to January, SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 11/30 1981 only on 10.2.1981 under Section 19A of the Act, which too was not in accordance with law, as the procedure required was not followed, the eviction decree passed by two Courts below for the second default is absolutely proper and justified in law and the same does not require any interference in the present second appeal. He submitted that the learned trial Court has itself rightly found and which finding has been affirmed by the first appellate Court that the second default for the month of June, 1980 to November, 1980 was enough to pass eviction decree against the defendant – tenant. He submitted that even the so called deposit under Section 19A of the Act on 10.2.1981 was not in accordance with law as requirement of first tendering the same to the landlord- plaintiff and thereafter deposit of same in the Court was not followed by the tenant. He also urged that once the second suit was instituted on 4.2.1981, there was no justification of any payment on the part of the tenant under Section 19A of the Act. He therefore, submitted that such habitual non-payment on the part of the tenant clearly attracted the provisions of Section 13(1)(a) of the Act read with proviso to Section 13(6) of the Act and therefore, the decree on the ground of SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 12/30 second default by the two courts below deserves to be upheld and maintained and the second appeal deserves to be dismissed by this Court. He relied upon the following judgments in support of his submissions. 10. The learned counsel for the respondent – landlord has relied upon the decision of this Court in the case of Gauri Lal V/s Gujar Mal reported in 1992(1) WLC (Raj.) 437 in which this Court has held as under: “It is, therefore, clear that on the one hand, the Legislature has protected the interest of the tenant and has put restrictions on the court's power in ordering eviction of a tenant except on grounds specified in Section 13(1)(a) of Section 13(1)(i) of 1950 Act, on the other hand, it has specifically declared that a tenant who makes a default in the payment of rent of an accommodation for six months for which he has already obtained benefit under Section 13(6) or Section 13A of the Act, shall not be entitled to relief under section 13(6) SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 13/30 of 1950 Act. Thus a tenant who has availed the benefit under Section 13(6) or has availed benefit of Section 13A, he cannot claim relief under Section 13(6) that no decree of eviction be passed against him on the grounds specified in Section 13(1)(a). The provision clearly lifts the embargo on passing the decree of eviction on the ground of default in the cases of habitually defaulting tenants.” 11. In the case of Choit Ram V/s Ramdeen – S.B. Civil Second Appeal No.38/1991 decided on 28.8.1991, which has however been held to be no longer a good law by Full Bench in the case of Kailash Chandra V/s Sri Kishan (supra) this Court as held as under: “In case the suit for eviction is based on the ground set- forth in Clause (a) of sub-section (1) with or without any other ground referred to in that section, but so far as the cases based on second default is concerned, whether it is necessary or not that has to be seen. According to proviso appended to sub-section (6) of Section 13, a SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 14/30 tenant shall not be entitled to any relief under this sub- section if having obtained such benefit or benefits under Section 13-A of the Act in respect of any such accommodation if he again makes a default in respect of such accommodation for six months. It is not in dispute that in the present case, the defendant appellant has already availed the benefit of sub-section (6) of Section 13 of th Act in the earlier suit and as he has already availed the benefit of sub-section (6) of Section 13 and, therefore, in view of the proviso appended to sub-section (6) of Section 13, he is not entitled to any relief under sub-section (6). When the defendant – appellant is not entitled to any relief under sub-section (6) then the determination of rent, in my view, was not at all necessary. When the defendant cannot save himself from ejectment by making payment or depositing the rent under section 13(4) of the act and the benefit of sub- section (6) was not available to him hence the determination of provisional rent under sub-section (3) of section 13 of the Act is not at all necessary to be made SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 15/30 and if the provisional rent is not determined then that will not, in any way, affect the trial. Similar case came up for consideration before this Court in Hanspuri Versus Bhanwar Lal and another (1987 (II) RLR 329) and Hon'ble K.S. Lodha, J. in that case, after considering the law on the point, came to the conclusion that the exercise of the determination of rent under Section 13(3) of th Act in second suit would be futile inasmuch as the proviso to sub-section (6) of Section 13 of the Act clearly provides that the tenant will not be entitled to the relief under sub-section (6) if he has already taken the advantage of it in the previous suit.” 12. In the case of Stephen D'Silva V/s M/s Jaipur Chalchitra Pvt. Ltd. reported in 1992(2) RLW 651, this Court has held as under: “(7) Section 19-A was inserted in the Act in the year 1976 with a view to remove difficulties of tenants in paying rent to the landlord in certain situations. The Section 19-A, therefore, provides for depositing rent in SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 16/30 Court. If the rent is deposited in Court after following the procedure laid down under the said section then the tenant will be absolved from paying the rent for that particular period to the landlord, the amount of which has been deposited in Court. It is, therefore, mandatory to follow the procedure laid down in section 19A to get the advantage of the provisions of this Section. Sub- Section (3) of Section 19-A lays down the methods, by which, the rent can be sent by money order or tenant may give notice in writing to the landlord to specify a bank and account number, in which, the rent may be deposited by the tenant to the credit of landlord. Clause (c) of sub-section (3 provides as under: (c) .......................... In the matter under consideration neither the rent was sent by postal money order nor any notice was given to Mrs. Patricia regarding payment of rent. If there was any bonafide doubt as to person or persons to whom the rent had to be deposited in court within 10 days/15 days SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 17/30 referred to in clause (b) or in sub-section (1) of the Act. The tenant is thereafter, expected to further continue to deposit any rent, which may subsequently become due in respect of premises. None of this procedure was followed and amount of arrears of rent was deposited in the Court u/s 19-A of the Act. Since the address/whereabouts of Mrs. Patricia were not known and no notice could be issued to her from Court regarding the deposit of rent, the application u/s 19A was rightly dismissed. Thus, it is evident that the deposit of rent in the Court u/s 19-A was illegal and against the mandatory provisions of section 19 A of the Act. It can, therefore, be said that the respondent did not exhaust the methods laid down in sub-section (3) and (4) of the Act, therefore, such deposit of rent is invalid and such account of rent remains outstanding despite its deposit in Court.” 13. In the case of Smt. Swaran Devi V/s Kailash Chandra Jain reported in 1996(1) RLR 57, this Court has held as under: SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 18/30 “A tenant, against whom the suit for eviction and arrears of rent has been filed has a right to deposit the rent during the pendency of the suit in the Court itself and on such deposit being made, the provisions of Order 24, rule 2 and 3 C.P.C. will apply. I do not agree with the submission of Mr.Jain that the rent can be deposited only under Section 19A of the Act. In my opinion after the service of summons on the defendants, he should deposit the rent in the suit itself and not under Section 19A of the Act. Question No.1 framed by this Court is decided accordingly.” 14. In the case of Atma Ram V/s Shakuntala Rani reported in 2005(2) RCJ 10 (SC), the Hon'ble Supreme Court has observed as under: “It will thus appear that this Court has consistently taken the views that in Rent Control Legislations if the tenant wishes to take advantage of the beneficial provisions of SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 19/30 the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision. The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent in the Court of the Rent Controller giving the necessary particulars as required by sub-section (2) of Section 27. there is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act, it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of Rent Controller as required by Section 27 of the Act, and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 20/30 the meaning of the Act and consequently the tenant must be held to be in default.” 15. In the case of Ratan Lal V/s LR's of Heera Lal reported in 2004 CJ (Rent Control) 434, this Court has held as under: “13. As has been observed in the preceding paragraphs, in the suit in question, no provision was made in the decree of the first suit about the amount deposited in the first suit. That being the position, the analogy as has been settled by the Hon'ble Supreme Court in Jadiya's case (supra) cannot be pressed into service. The law laid down in Jadiya's case is to be effect that a tenant should not be made to make deposits twice. This proposition inheres in it that the deposit of rent has to be one, which is available to the landlord. In the instant case, the advance deposit made in the earlier suit having not been provided for in the decree, are not available to the landlord. Thus, the deposits loose its significance as far as landlord is concerned. If the tenant on its own SBC SECOND APPEAL NO.128/1992–BULAKI DASS V/S RAM SWAROOP . : JUDGMENT DTD. 16.2.2009 21/30 volition ignores to make a proper deposit, then the mandate of Section 13(1) of the Act of 1950 would not characterise such tenants to be done who is ready and willing to make payment of rent. The