Case: B.C. Kame Vs. Nemi Chand Jain

the following grounds only, namely:-(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from his within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner;X X X X X X"By sub-section (3), insofar as it is material, it is provided:"No order for the eviction of a tenant shall be made on the ground specified in clause (a) of sub-section (1), if the tenant makes payment or deposit as required by Section 13.X X X X X X"By Section 13 (1) it is provided:"On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate."By sub-sections (5) and (6) it is provided:"(5) If a tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit."5. It is clearly intended thereby that for non-payment of rent, the tenancy shall not be terminated and the Court shall not pass a decree in ejectment if within two months of the date on which a notice of demand for rent has been served on the tenant he makes payment of the amount or tenders the amount of rent due by him to the landlord.If he does so, no suit will lie against him on the ground of default in the payment of rent. Even if no such payment is made within two months as provided by Section 12 (1) (a) the tenant may within one month from the service of the writ of summons deposit the amount in Court or pay to the landlord the amount due by him till then and continue to pay or deposit "month by month" the rent accruing due. Even if he does not pay the amount within one month he may on an application made by him ask for extension of time, and if the Court grants the extension the amount may be paid by him within such extended time. In such a case by virtue of sub-section (5) of Section 13, on the ground of default in payment of rent, the Court will not proceed to pass a decree in ejectment. But it is clear that under sub-section (1) of Section 13 the normal period during which the amount has to be paid to the landlord or deposited in Court is one month from the service of the writ of summons. If the tenant pays the amount of rent in arrears within one month he is immune from liability to be evicted for default in that behalf. If, however, he does not pay the amount or deposit it in Court, any subsequent payment made by him will come to his aid only if on an application made by him the Court extends the time.6. In the present case the defendant did not pay the rent due by him within one month from the date on which the amount of rent was payable by him. We need not consider the question, whether if the amount if paid on June 10, 1963, rent would have been deemed to be properly paid. The amount was deposited in Court on June 11, 1963. The deposit was clearly beyond time. The defendant made no application for extension of time and no order was made by the Court extending the time. Even after the first payment the defendant did not continue to pay regularly the amount of rent falling due by him during the pendency of the suit. It was only on July 28, 1965, that he applied for extension of time and the Court rejected the defendants prayer for extension.7. It is true that the learned District Judge in the course of his judgment mixed up the discussion on two different contentions, one with regard to striking out the defence of the defendant for nonpayment of rent, and the other relating to extension of time for payment of rent. But on a fair reading of the judgment it appears that he was of the view that on the facts before him no case was made out by the defendant for extension of time in exercise of the jurisdiction of the Court. The High Court declined to enter upon an enquiry whether the District Judge was right in so holding, because in the view of the High Court, in a revision application under Section 115 of the Code of Civil Procedure the decision of the District Court was binding.8. We are unable to agree with Mr. Patel that the District Court held that it had no jurisdiction to extend the time. The Court held that it had jurisdiction to extend the time but on merits no case was made out for an order extending the time.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. The order passed by the District Court setting aside the judgment passed by the court of First Instance in respect of those premises in respect of which there was default in payment of rent was plainly erroneous and the High court was right in setting aside the order.In the present case the defendant did not pay the rent due by him within one month from the date on which the amount of rent was payable by him. We need not consider the question, whether if the amount if paid on June 10, 1963, rent would have been deemed to be properly paid. The amount was deposited in Court on June 11, 1963. The deposit was clearly beyond time. The defendant made no application for extension of time and no order was made by the Court extending the time. Even after the first payment the defendant did not continue to pay regularly the amount of rent falling due by him during the pendency of the suit. It was only on July 28, 1965, that he applied for extension of time and the Court rejected the defendants prayer for extension.7. It is true that the learned District Judge in the course of his judgment mixed up the discussion on two different contentions, one with regard to striking out the defence of the defendant for nonpayment of rent, and the other relating to extension of time for payment of rent. But on a fair reading of the judgment it appears that he was of the view that on the facts before him no case was made out by the defendant for extension of time in exercise of the jurisdiction of the Court. The High Court declined to enter upon an enquiry whether the District Judge was right in so holding, because in the view of the High Court, in a revision application under Section 115 of the Code of Civil Procedure the decision of the District Court was binding.8. We are unable to agree with Mr. Patel that the District Court held that it had no jurisdiction to extend the time. The Court held that it had jurisdiction to extend the time but on merits no case was made out for an order extending the time.