Ramesh Chandra Vs. Manmohan Singh and anr. - Court Judgment

Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - section 13(4) & (5) and limitation act, 1963--section 5--prescribed period for depositing rent--held, it can be extended in suitable case.;in suitable cases the court has the power to extend the time for depositing the rent beyond the period prescribed under section 13(4) of the act.;(b) precedents - conflicting decisions of supreme court--held, decision of larger bench be followed.;between conflicting decisions, the decision by a larger bench must be followed by the high courts. ;revision allowed - orderj.s. verma, c.j.1. this is defendant-tenant's revision petition against the trial court's order striking out the defence under sub-section (5) of section 13 of the rajasthan premises (control of rent and eviction) act, 1950 and the appellate order affirming the same.admittedly on march 25, 1985 the provisional rent was determined at rs. 5215/-under sub-section (3) of section 13 of the act. themonthly rent is rs. 215/-. on april 8, 1985 the sum of rs. 2850 was paid to the plaintiff landlord which included the sum of rs. 2635/-as the balance left after adjusting rs. 2580/-which had earlier been deposited under section 19-a of the act, and rs. 215/- being the rent for the month of march, 1985. on octrober, 4, 1985 an application was made by the plaintiff-landlord for striking out the defence under section 13(5) on the ground of non-payment of the rent for the month of july, 1985. payment of rent for the period subsequent to march, 1985 except for the month of july, 1985 is admitted. the defendant inadvertently in the receipt dt. oct. 31, 1985 issued by him he has mentioned the payment of rent for four months, namely, march, april, may and june instead of april to july, 1985. it was claimed that since rent for the month of march, 1985, had already been paid on april 8, 1985, there was no occasion to pay rent for the month of march, 1985 once again as appears from the receipt dt. oct. 31, 1985. this contention of the defendant was rejected by both the courts below. on the ground of default in payment of rent for the month of july, 1985 defendant-tenant's defence has been struck out under section 13(5) of the act. hence this revision.2. in my opinion, it is not necessary to examine the correntness of the finding on the question of payment of rent for the month of july, 1985 in view of the alternative submission made by learned counsel for the petitioner that even if the same is treated as unpaid, striking out defence under section 13(5) is only discretionary and not mandatory. he argued that in view of admitted payment of the entire remaining amount the proper exercise of discretion would be to decline striking out the detence under section 13(5) of the act. i am inclined to accept this alternative argument of the learned counsel for the petitioner.3. a full bench of this court in vishandas v. savitri devi, (1988) 1 rajasthan lr 1 : (air 1988 rajasthan 198) has held placing reliance on several decisions of the supreme court that section 13(5) of the act is directory and not mandatory, and that section 5 of the limitation act can be applied to the deposit of rentunder section 13(4) of the act. it has also been held that in suitable cases the court has the power to extend the time for depositing the rent beyond the period prescribed under section 13(4) of the act. in taking this view the full bench has relied on the supreme court decisions in shyamcharan sharma v. dharamdas, air 1980 sc 587, miss santosh mehta v. om prakash, air 1980 sc 1664, ram murti v. bholanath, air 1984 sc 1392, ganesh prasad shah kesari v. laxmi narayah gupta, air 1985 sc 964 and b.p. khemka pvt. ltd. v. birendra kumar, air 1987 sc 1010. in this last decision, b. p. khemka's case, it has been held after referring to the earlier decision on the point relating to similar enactment in different states that (at p.1015):--'it has been uniformly held that the powersof discretion vested in the rent controller give him further right to condone the delay in deposit of rent for the subsequent months.'the law on this point must, therefore, be taken as settled in this manner. however, learned counsel for the respondent placed reliance on a recent decision of the supreme court in mrs. manju choudhary v. dulal kumar chandra, (1988) 1 ren cj 156 : (air 1988 sc 602) to contend that striking out defence in such a situation is mandatory and the court has no discretion in the matter. it is sufficient to say about this decision relating to the bihar act that even if it can be read in the manner suggested, it does not supersede the several supreme court decisions followed by the full bench of this court for holding as earlier indicated. moreover, the decision in shyamcharan sharma's case (air 1980 sc 587) (supra) is by a larger bench than the bench deciding the case relied on by the learned counsel for the respondent relating to the bihar act. the correct course to adopt in such a situation indicated by the supreme court is that between conflicting decisions, the decision by a larger bench must be followed by the high courts. for this reason i am bound to follow the full bench decision of this court which is based on several decision of the supreme court including a decision by a larger bench of the supreme court.4. consequently, the revision is allowed. the impugned orders of both the courts below striking out the defence are set aside and the plaintiffs application made in this behalf is rejected. however, the defendant petitioner is directed to deposit the rent for the month of july, 1985 within one month in the usual manner.5. no costs.

Judgment:
ORDER

J.S. Verma, C.J.

1. This is defendant-tenant's revision petition against the trial court's order striking out the defence under Sub-section (5) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the appellate order affirming the same.

Admittedly on March 25, 1985 the provisional rent was determined at Rs. 5215/-under Sub-section (3) of Section 13 of the Act. Themonthly rent is Rs. 215/-. On April 8, 1985 the sum of Rs. 2850 was paid to the plaintiff landlord which included the sum of Rs. 2635/-as the balance left after adjusting Rs. 2580/-which had earlier been deposited under Section 19-A of the Act, and Rs. 215/- being the rent for the month of March, 1985. On Octrober, 4, 1985 an application was made by the plaintiff-landlord for striking out the defence under Section 13(5) on the ground of non-payment of the rent for the month of July, 1985. Payment of rent for the period subsequent to March, 1985 except for the month of July, 1985 is admitted. The defendant inadvertently in the receipt dt. Oct. 31, 1985 issued by him he has mentioned the payment of rent for four months, namely, March, April, May and June instead of April to July, 1985. It was claimed that since rent for the month of March, 1985, had already been paid on April 8, 1985, there was no occasion to pay rent for the month of March, 1985 once again as appears from the receipt dt. Oct. 31, 1985. This contention of the defendant was rejected by both the courts below. On the ground of default in payment of rent for the month of July, 1985 defendant-tenant's defence has been struck out under Section 13(5) of the Act. Hence this revision.

2. In my opinion, it is not necessary to examine the correntness of the finding on the question of payment of rent for the month of July, 1985 in view of the alternative submission made by learned counsel for the petitioner that even if the same is treated as unpaid, striking out defence under Section 13(5) is only discretionary and not mandatory. He argued that in view of admitted payment of the entire remaining amount the proper exercise of discretion would be to decline striking out the detence under Section 13(5) of the Act. I am inclined to accept this alternative argument of the learned counsel for the petitioner.

3. A Full Bench of this Court in Vishandas v. Savitri Devi, (1988) 1 Rajasthan LR 1 : (AIR 1988 Rajasthan 198) has held placing reliance on several decisions of the Supreme Court that Section 13(5) of the Act is directory and not mandatory, and that Section 5 of the Limitation Act can be applied to the deposit of rentunder Section 13(4) of the Act. It has also been held that in suitable cases the court has the power to extend the time for depositing the rent beyond the period prescribed under Section 13(4) of the Act. In taking this view the Full Bench has relied on the Supreme Court decisions in Shyamcharan Sharma v. Dharamdas, AIR 1980 SC 587, Miss Santosh Mehta v. Om Prakash, AIR 1980 SC 1664, Ram Murti v. Bholanath, AIR 1984 SC 1392, Ganesh Prasad Shah Kesari v. Laxmi Narayah Gupta, AIR 1985 SC 964 and B.P. Khemka Pvt. Ltd. v. Birendra Kumar, AIR 1987 SC 1010. In this last decision, B. P. Khemka's case, it has been held after referring to the earlier decision on the point relating to similar enactment in different States that (at p.1015):--

'It has been uniformly held that the powersof discretion vested in the Rent Controller give him further right to condone the delay in deposit of rent for the subsequent months.'

The law on this point must, therefore, be taken as settled in this manner. However, learned counsel for the respondent placed reliance on a recent decision of the Supreme Court in Mrs. Manju Choudhary v. Dulal Kumar Chandra, (1988) 1 Ren CJ 156 : (AIR 1988 SC 602) to contend that striking out defence in such a situation is mandatory and the court has no discretion in the matter. It is sufficient to say about this decision relating to the Bihar Act that even if it can be read in the manner suggested, it does not supersede the several Supreme Court decisions followed by the Full Bench of this Court for holding as earlier indicated. Moreover, the decision in Shyamcharan Sharma's case (AIR 1980 SC 587) (supra) is by a larger Bench than the Bench deciding the case relied on by the learned counsel for the respondent relating to the Bihar Act. The correct course to adopt in such a situation indicated by the Supreme Court is that between conflicting decisions, the decision by a larger bench must be followed by the High Courts. For this reason I am bound to follow the Full Bench decision of this Court which is based on several decision of the Supreme Court including a decision by a larger Bench of the Supreme Court.

4. Consequently, the revision is allowed. The impugned orders of both the courts below striking out the defence are set aside and the plaintiffs application made in this behalf is rejected. However, the defendant petitioner is directed to deposit the rent for the month of July, 1985 within one month in the usual manner.

5. No costs.