Case: RAM PRATAP Vs. ANAND KANWAR

was posted on different dates and it was continuously adjourned for determination of rent. The case set up by the Plaintiff was that the rent had been enhanced to Rs. 15/- per month, whereas the Defendant has contended that the rent was Rs. 10/- per month. The Appellants counsel remained absent on 24.04.1993 and on that date the court proceeded matter ex parte and fixed the next date on 24.07.1993. On the following date, the case was adjourned as the presiding officer was on leave and the next date was fixed on 22.09.1993 and, thereafter, the court proceeded with the suit. The court did not frame any issues and decreed the suit on 20.07.1995.9. The claim of the Plaintiff is that the Defendant had committed default in payment of rent for the period from 01.07.1981 till 30.06.1984. There was a dispute between the Respondent and Onkar Singh as to title, for which suit was filed by him against the said Onkar Singh. The said suit was decreed on 07.11.1983 and during the said litigation the Defendant was depositing rent in court Under Section 19A of the Act.10. It is evident that the trial court without determination of provisional rent Under Section 13(3) of the Act decreed the suit. The question which has been raised by the Defendant is as to whether fixation of provisional rent by the trial court Under Section 13(3) where eviction of a tenant is sought Under Section 13(1)(a) is mandatory or directory.11. Section 13(1)(a) provides for eviction of as tenant for default in payment of rents which is as under:13. Eviction of tenants.-(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decrees 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.12. Section 13(3) as amended by Section 8(i) of Rajasthan Act No. 14 of 1976, dated 13-02-1976 reads as under:"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 which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, 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 per cent 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."13. It is also necessary to notice Section 13(4), (5) and (6) of the Rent Act, which are as under:"13(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).13(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.13(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 subsection, 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."14. It is evident from Section 13(3) of the Rent Act that the use of the word shall puts a mandatory obligation on the court to fix provisional rent within three months of the filing of the written statement but before framing of the issues. The language of the Section is mandatory and places a duty on the court to determine the provisional rent irrespective of any application or not. If the rent so determined by the court is paid by the tenant as provided Under Section 13(4), no decree for eviction of the tenant can be passed on the ground of default Under Section 13(1)(a) in view of Section 13(6) of the Act. It is thus clear that unless the determination Under Section 13(3) takes place, Section 13(6) cannot be complied with and a valuable right given to a tenant would be lost. The High Court, in our view, has rightly held Section 13(3) of the Act to be mandatory.

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

Explanation:
0[ds]8. The material facts are not in dispute. Thesuit for eviction was filedSection 13(1)(a) on the ground of default in payment of rent for the period from 01.07.1981 till 30.06.1984. Thefiled the written statement on 08.08.1989. Thereafter, the matter was posted on different dates and it was continuously adjourned for determination of rent. The case set up by thewas that the rent had been enhanced toper month, whereas thehas contended that the rent wasper month. Thecounsel remained absent on 24.04.1993 and on that date the court proceeded matter ex parte and fixed the next date on 24.07.1993. On the following date, the case was adjourned as the presiding officer was on leave and the next date was fixed on 22.09.1993 and, thereafter, the court proceeded with the suit. The court did not frame any issues and decreed the suit on 20.07.1995.9. The claim of theis that thehad committed default in payment of rent for the period from 01.07.1981 till 30.06.1984. There was a dispute between theand Onkar Singh as to title, for which suit was filed by him against the said Onkar Singh. The said suit was decreed on 07.11.1983 and during the said litigation thewas depositing rent in courtSection 19A of the Act.10. It is evident that the trial court without determination of provisional rentSection 13(3) of the Act decreed the suit. The question which has been raised by theis as to whether fixation of provisional rent by the trial courtSection 13(3) where eviction of a tenant is soughtSection 13(1)(a) is mandatory or directory.It is also necessary to notice Section 13(4), (5) and (6) of the Rent Act, which are as) The tenant shall deposit in court or pay to the landlord the amount determined by the courton (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 court5) If a tenant fails to deposit or pay any amount referred to in(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.13(6) If a tenant makes deposit or payment as required by(4), no decree for eviction on the ground specified inion (1) shall be passed by the court against him:Provided that a tenant shall not be entitled to any relief under this, if having obtained such benefit or benefitn 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.It is evident from Section 13(3) of the Rent Act that the use of the word shall puts a mandatory obligation on the court to fix provisional rent within three months of the filing of the written statement but before framing of the issues. The language of the Section is mandatory and places a duty on the court to determine the provisional rent irrespective of any application or not. If the rent so determined by the court is paid by the tenant as providedSection 13(4), no decree for eviction of the tenant can be passed on the ground of defaultSection 13(1)(a) in view of Section 13(6) of the Act. It is thus clear that unless the determinationSection 13(3) takes place, Section 13(6) cannot be complied with and a valuable right given to a tenant would be lost. The High Court, in our view, has rightly held Section 13(3) of the Act to be mandatory.