Desraj Vs. Omprakash and anr. - Court Judgment

Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - sections 13(3)(4) & 19--sub-sections (3) & (4) existed when amendment came into force--held, deeming provision of 19 cannot be extended to section 13(3) & (4);the deeming provision of section 19 cannot be extended to sub-sections (3) & (4) of section 13 of the act. the reason is obvious that the legislature made the amendment after sub-sections (3) & (4) were in existence and if it wanted to extend the effect of the deeming provision, it should have and could have mentioned sub-sections (3) & (4) also.;(b) rajasthan premises (control of rent & eviction) act, 1950 - sections 13(4) & (5) and transfer of property act--defence struck off--held, protective umbrella of rent control act does not.....orderguman mal lodha, j. 1. a sin of non or late payment of rent under section 13(4); may be due to poverty; negligence or deliberate; whether would create handicap limited to defenceless under section 13(i)(a) or would make tenant completely unarmed and defenceless against all weapons in armoury of landlord for eviction under section 13(1) as a whole, is the question in this legal cum socio economic debate?2. i have invited the bar in general to enlighten me. unfortunately, the response is limited even though the repercussions can be unlimited.3. and now traditional narrations,4. this is a revision petition under section 115, cpc, against the order of district judge, alwar, passed on 13th oct. '84, in civil miscellaneous appeal no. 149/83.5. it is common ground that from oct. '81 to july.....

Judgment:
ORDER

Guman Mal Lodha, J.

1. A Sin of non or late payment of rent under Section 13(4); may be due to poverty; negligence or deliberate; whether would create handicap limited to defenceless under Section 13(i)(a) or would make tenant completely unarmed and defenceless against all weapons in armoury of landlord for eviction under Section 13(1) as a whole, is the question in this legal cum socio economic debate?

2. I have invited the Bar in general to enlighten me. Unfortunately, the response is limited even though the repercussions can be unlimited.

3. And now traditional narrations,

4. This is a revision petition under Section 115, CPC, against the order of District Judge, Alwar, passed on 13th Oct. '84, in Civil Miscellaneous Appeal No. 149/83.

5. It is common ground that from Oct. '81 to July '82, an amount of Rs. 26,00/- was deposited on 24th July, '82 and not by the 15th day of the next month. On the above premises, both the lower courts have found that the defence against eviction deserves to be struck off under Section 13(4)(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.

6. Mr. R. M. Lodha has challenged the order of the lower appellate court under Section 115, CPC, on various grounds. The first ground is that his client used to send money-order every month, and according to him, payment by money-order even if the landlord refuses to accept it, is payment, as per the deeming provision of Section 19, introduced by the amendment.

7. Now, a look at Sections 13 and 13-A, which reads as under : --

'Section 13 Eviction of tenants.-- (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether 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 month; or

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the premises; or

(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court has materially altered the premises or is likely to diminish the value thereof; or

(d) that the tenant has created a nuisance or has done any, act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or

(e) that the tenant has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord; or

(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or

(g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or

(h) that the premises are required reasonably and bona fide by the landlord --

(i) for the use or occupation of himself or his family, or

(ii) for the use or occupation of any person for whose benefit the premises are held, or

(iii) for a public purpose or

(iv) for philanthropic use; or

(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or

(j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or

(k) that the landlord requires the premises in order to carry out any building work.

(i) at the instance of the (State Government) in persuance of an improvement scheme or development scheme; or

(ii) because the premises have become unsafe or unfit for human habitation, or

(iii) upon the requisition of a local authority or

(1) that the landlord has been required by any authority under any law to abate the overcrowding of the premises.

(2) The Court may presume that premises let for use as a residence were or are sub-let by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period exceeding one month otherwise than a commensality with the tenant.

(3) 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.

(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).

(5) If tenant fails to deposit or pay any amount referred to in Sub-section (4) on the date or within time specified, therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.

(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 sub-section, if having obtained such benefit or benefits 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.

(7) If any suit referred to in Sub-section (3) there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit.

(8) In case at the time of decision of the suit --

(a) the court finds that the amount of rent provisionally determined by it under Sub-section (3) and deposited in court or paid to the landlord under Sub-section (4) is less than the amount of rent finally decided as payable by the tenant, the court shall pass a decree for the balance amount against the tenant;

(b) the court finds that the amount determined and deposited or paid as aforesaid in excess of the amount of rent finally decided as payable by the tenant, the court shall, in the event of passing a decree for eviction against the tenant on ground other than that set forth in Clause (a) of Sub-section (1), also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction it shall direct in the decree that such excess amount will be adjusted by the landlord against future rent payable by the tenant.

(9) Where any decree or order for the eviction of a tenant is made on the ground specified in Sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of two months from the date of the decree or order.'

Section 13-A. 'Special provisions relating to pending and other matters -- Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Amending Ordinance or in any other law.

(a) no court shall, in any proceeding pending on the date of commencement of the (amending ordinance) pass any decree in favour of landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under Clause (b) and pays to the landlord, or deposits in court within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause;

(b) in every such proceeding, the court shall on the application of the tenant made within thirty days from the date of commencement of the (amending ordinance) notwithstanding any order to the contrary, determine the amount of rent in arrears up to the date of the order as also the amount of interest thereon at 6% per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court; and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if tenant had not committed any default;

(c) the provisions of Clauses (a) and (b) shall mutatis mutandis apply to all appeals; or applications for revisions, preferred or made after the commencement of the (amending ordinance) against decrees for eviction passed before such commencement with the variation that in Clause (b), for the expression from the date of the commencement of the (amending ordinance), the expression 'from the date of the presentation of the memorandum of appeal or application for revision' shall be substituted;

(d) no court shall in any proceeding pending on the date of commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction solely on the ground that due to the death of the tenant as defined in Clause (vii) of Section 3 as it stood before the commencement of the Amending Ordinance, his surviving spouse, son, daughter and other heir as referred to in Sub-clause (b) of Clause (vii) of Section 3, were not entitled to the protection against eviction under this Act as it stood before the commencement of the Amending Ordinance.

(e) no decree for eviction passed by any court before the commencement of the Amending Ordinance shall, unless the same already stands executed before such commencement be executed against the surviving spouse, son, daughter and other heir as are referred to in Sub-clause (b) of Clause (vii) of Section 3 if such decree was passed solely on the ground as is referred to in Clause (d) and such decree shall be deemed to be as against them and

(f) the provisions of Clause (d) shall mutatis mutandis apply to all appeals or applications for revisions preferred or made, after the commencement of the Amending Ordinance.

Explanation :-- For the purpose of this section (a) 'Amending Ordinance' means the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975 and

(b) 'Proceedings' means suit, appeal or application for revision.'

8. In my opinion, the deeming provision of Section 19 cannot be extended to Sub-sections (3) & (4) of Section 13 of the Act. The reason is, obvious that the legislature made the amendment after Sub-sections (3) & (4) were in existence, and if it wanted to extend the effect of the deeming provision, it should have and could have mentioned Sub-sections (3) & (4) also. Because there was a mention of Clause (a), nothing prevented the legislature from mentioning Sub-sections (3) & (4).

9. It was then argued by Mr. Lodha that it was a waiver by the landlord as the rent sent by money-order was not accepted by him but it is well established that non-acceptance cannot be waiver. Next, it was argued by Mr. Lodha that the suit was a composite suit on various grounds including default, and therefore, there could not have been deprivation of defence on other grounds. In support of this contention, Mr. Lodha referred to the case of Siyasaran v. Sagar Mal Modi, 1982 Rajasthan LR 304.

10. To the contrary, Mr. Rastogi pointed out that the above decision of this court is limited to cases where under Section 13(1)(a) of the Act, a suit for eviction based on the ground of default, becomes completely ineffective because of payment of rent as contemplated by Section 13(a), and that suit is equally to be dismissed if it is based solely on the ground of default; and if it is based on other grounds, then, the ground of default should be taken out from the purview of further adjudication.

11. The distinction which Mr. Rastogi wants to point out for the purpose of appreciating the implications in Siyasaran's case (supra), require detail consideration.

12. In reply to the submission of Mr. Rastogi, Mr. P. N. Agarwal, who has appeared to intervene, pointed out that a reading of the judgment in Siyasaran's case as a whole, would show that the Court was very conscious to spell out its intention and provided a beneficial interpretation in favour of the tenant, and whatever was implicit earlier was made explicit in para 29 of its judgment, which reads as under : --

'Before parting with this case, I must state that if the legislature wanted or wants that a tenant who cannot pay rent, has got no right to stay, then, it should amend Section 13(2), (3) & (4) in explicit terms to apply them to all suits for eviction under Section 13 of the Act. In other words, Sub-section (2) should not be kept relaxed to only ground of default under Sub-section (a), but it should be extended to all sub-clauses from (a) to (i) to cover all grounds viz., material alteration, subletting, denial of title etc., unless that is done, the interpretation which I nave taken of Sub-sections (2), (3), (4) & (5) of Section 13 is the only possible interpretation.'

13. Mr. Loonia and Mr. Keshote, who also intervened to assist the court, supported the above contention of Mr. Agarwal, which was initially pointed out by Mr. Lodha.

14. Before I proceed to adjudicate this controversy I may mention here that after the judgment of Siyasaran's case (1982 Rajasthan LR 304) (supra), there has been no judgment in this court pointing out anything to the contrary or taking a different view, than one taken in it.

15. Siyasaran's judgment I have prefaced by a problem of tenants and resultant attitude of the courts for beneficial interpretation for tenants' eviction under the rent control laws in consonance with the concept of social justice which comes out from the Preamble of the Constitution itself. In paras 2 to 7 (extracted below) of the Siyasaran's judgment, the two schools of law have been referred to avoiding that controversy in the present case, I would like to confine my decision to the issue raised, on the basis of pure text of law and decisions which are available before me so far. Paras 2 to 7 read as under : --

'Shocking scarcity of a chappar, roof to rest' result in stretching of the bones on pavements of Chopati, Kolba Devi, Bada Bajar, Dharam Tala, Chandni Chowk, Panch Batti and Sojati Gate, the prestigious shopping centres, exposing the hyprocratic flooded lights over dark dry skeletons of poor, downtrodden pavement dwellers of India, have compelled the patrogonists of 'social justice' to adopt beneficial interpretation for protecting tenants from evictions under the Rent Control Laws of the land. But the ingenuity of the resourceful segment of landlord lawyers want to overstep intention of the legislators and crusadors of 'social justice', by enacting'Merchant of Venice and Portia' to make tenants defenceless and deprive them from the valuable right of defence against the ejectment, by hyper-technical interpretation of Sub-sections (2), (3), (4) & (5) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. 'The pivot of debate in the instant case, therefore, is between the interpretation of rent was in consonance with 'social justice' against the hair splitting interpretation based on blind law by accepting 'Pond of flesh and not a drop of blood', Shakespear's obsolate and outdated classics. I am far from having attraction of being rehetoric, when I recapitulates what Mahabharat's Abhimanyu, said, when he was locked, unarmed in Chakra Vyuh, National Poet Maithili Sharan Gupt in his famous verse 'Jaydrath Vadh' depicts what Arjun's son exclaimed to Armed Kauravs : -- 'Give me the arms first and then fight with me. For your selfish motives don't commit the sin of killing me unarmed,'

Dharam Shastras emphasised Dharam Yudh. Are we to revert back to stone age in space age by interpreting rule of law to mean denial of defence on hypertechnicalities, and hair splitting unreal and anti-social legal gimmics and gymnastics. The tenant has been left 'high and dry' by accepting 'blind justice' interpretation by the lower courts, leading to his eviction, by depriving him of his basic right of defence, Should this Court, 'Ditto it or Veto It; is the billion dollar question in this controversy where two unequals are pitched against each other.

The acid test of interpreting Sub-sections (2), (3), (4) & (5) of Section 13 after introduction of Section 13A would be 'Voices of Graves' v. Writing on Walls, 'Statism' v. Pragmatism and Dynamism, and 'Portia's Pond of Flesh Drama v. 'Felt Necessities of Times' 'Social Justice v. Blind's Justice', the latter many a times partakes the character of denial of justice and not only makes the phrase, justice misnomer, but makes a mockery of it.

The battle lines of interpretation of law have now become patent on the legal horizon where one terms it as legislation in the name of interpretation or expanding new dimension of 'social justice'. It is visible that two divergent schools of interpretation can safely be termed as Krishna Iyer J. Gajendragadkar J., Holmes J., v. Hidayatullah, J. Lord Dening School. The Iyer, J. school tries to be radical, dynamic and pragmatic as crusaders of 'social justice' Hidayatuallah J., school emphasise static and precedents oriented strict legal approach by preferring to remain blind to the social needs and socio-economic evolution or revolution warrants of the country.'

16. So far as this Court is concerned, in the case of Naneshah v. Ramkumar, 1966 Raj LW 446, the scope of striking off the defence was considered, and it was held that it should be limited to striking out defence under Sub-section (1) only and not to other defences. The specific question whether the defence against other grounds after Clause (a) would be allowed to continue as such so far as both the grounds are concerned, were not expressly or specifically considered in Naneshah's case which therefore, cannot be an authority for the proposition that striking off the defence under Sub-section (5) means qua all the grounds of Section 13 of the Act, although undoubtedly a passing reference has been made.

17. Earlier in the case of Mohanlal v. Lakhekhan, 1973 Raj LW 204, a similar analysis was made, and the question considered was whether the plaintiff was required to prove the grounds for eviction and whether the defendant could cross-examine the plaintiffs witnesses. The controversy which has now been raised in this case is that the question whether striking off the defence would mean defence against Clauses (b) to (i) was not considered or adjudicated by that court.

18. The Calcutta High Court in the case of Maharam Ali v. Dinnath Prasad Sha, 1975 AIR CJ 198 (Sic) was also seized with the controversy whether after striking off the defence, the landlord was required to prove that the grounds contained in Clauses (a) to (k) are proved and the tenant could certain cross-examine witnesses and further defendant his case on the grounds under general law.

19. In Hiranand v. Umain Raj, AIR 1973 Raj 120, it was observed:

'Once the defence is struck out under Sub-section (6) of Section 13 of the Act the prohibition against the court ordering eviction of the tenant, unless it is satisfied regarding the acts or omissions mentioned in Sub-clauses (a) to (k) of Sub-section (1), is removed With the vanishing of the prohibition against the powers of the court to order eviction the rights of the landlord under the general law will spring into action. In the case of Hiranand (supra), agreement was expressed with the decision in the case of Bansilal v. Laxmichand, 1971 Ren CJ 836 (Delhi), wherein it was held that once the defence is struck out, it means that all the defences available to him against ejectment under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, cannot come to his rescue.

20. With due respect, I am unable to agree with the view that once the defence is struck out against eviction, the right of the landlord under the general taw would spring into action. It is difficult to appreciate how the rights under the general law can spring into action, because the protective umbrella provided by Section 13 would continue and the landlord will have prove one of the grounds mentioned in Section 13 of the Act. In general law, none of the grounds is required to be proved; and once the relationship of landlord and tenant ceases by termination of tenancy, then, under the Transfer of Property Act, all that is required to be established is that the tenancy was terminated according to the provisions of the Transfer of Property Act; and that relationship of landlord and tenant, and rent deed or contract does not prohibit eviction. In my humble opinion, after the Rent Control Act has been enacted, amended and expanded, to talk of eviction under general law in areas where Rent Control Act is applicable, is beyond the legislative intent. I am fortified in my observations with a decision of the Apex Court in the case of V. Dhanpal Chettiar v. Yesodai Ammal AIR 1979 SC 1745, wherein a Special Bench consisting of 7 Hon'ble Judges of the Supreme Court, presided over by Hon'ble Y. V. Chandrachud, C.J., observed as under : --

'In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106, T.P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106, T.P. Act. On the question of requirement of such a notice under Section 106, T.P. Act, the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that Section 106 of the T.P. Act merely providing for termination of a lease either by the lessor or the lessee by giving the requisite notice is an extra protection against eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of Property Act, the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise.'

21. Seemingly, the two judgments of this Court referred to above, namely, Hiranand's case (AIR 1973 Raj 120) (supra) and Bansilal's case (1971 Ren CJ 836 (Delhi) (supra)), in so far as they take away the protective umbrella of the Rent Control Act from over a tenant who commits default under Section 13(4) of the Act or equivalent provisions, cannot be treated as good law, after the decision of the Apex Court referred to above in the case of V. Dhanpal(AIR 1979 SC 1745) (supra). The said judgment of the Apex Court, makes it very clear that once rent control laws occupy the field in a particular geographical area, then, the provisions of the Transfer of Property Act, even for the purposes of giving a notice and termination of tenancy, becomes irrelevant and redundant, because the relationship of landlord and tenant is exclusively and wholly governed and regulated by the rent control laws. The Apex Court in its seven Judges' judgment, has kept the supremacy of the Rent Control laws over and above the Transfer of Property Act or the general laws of the land governing the relationship of landlord and tenant. Even otherwise, when a special law is there by canons of interpretation of statutes, the general law will have to give way to special law. There is no gainsaying that the rent control laws are enacted for restricting, regulating, prescribing and limiting evictions according to the needs of the society, when the problem of having a roof over the head has become too acute on account of growth of population, inequalities of resources, finances and congestion in cities on account of tendency of leaving villages and concentrating in cities and towns. Much emphasis has been added to it after the 42nd amendment of the Constitution in the preamble, giving supremacy and primacy to the rent control laws, it has virtually made the general laws like Transfer of Property Act or Contract Act as subsidiaries, and as I think, all these laws have now become subservient and secondary laws.

22. I, therefore, cannot agree with the view taken in the above-mentioned two judgments of this court with due respect, which cannot under the present changed circumstances, be treated as good for guidance after the decision of the Supreme Court in V. Dhanpal's case (AIR 1979 SC 1745) referred to above (supra).

23. In the case of Miss Santosh Mehta v. Omprakash 1980 UJ (SC) 22 : (AIR 1980 SC 1664), Section 19 of the Delhi Rent Control Act, was discussed, wherein, the Apex Court 'observed : --

'We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facilitative power. He may or may not strike out the tenant's defence. A judicial discretion has built in self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party's defence is an exceptional step, not a routine visitation of punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non-performance, secondly, the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter of course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing trust with the duty underlying the power.

24. In Dayal Singh v. Poonam Chand Jain (1980) 1 Ren CR 308, it was held by this court that the tenant's right of defence against eviction under Section 13(1) of the Act only is to be considered, and that, striking off defence would mean taking away the right of tenant to defend himself, but not the right to challenge the right of the landlord to show that he was not the landlord. In this case also, it appears that the judgment of Hon'ble the Supreme Court in V. Dhanpal's case (AIR 1979 SC 1745) (supra) was not taken note of. It is well known that after the above judgment of the Supreme Court, there is no requirement to serve a notice and prove it under the Transfer of Property Act, for tenancy.

25. In my view, the above observation of this Court in Dayalsingh's case, also cannot be treated to be good law now after the decision of Hon'ble the Supreme Court inv. Dhanpal's case (supra).

26. In Wahiduddin v. Sanathan Dharamsabha 1970 Ren CR 624, Section 12(4) of the J & K Rent Control Act, was considered, and it was observed that striking off the defence, would mean only against the default of payment of arrears of rent and not against any other ground as per Section 12 of the said Act. Therein, it was observed as under : --

'A perusal of paras 3, 4 & 5 of the petition of plaint of the present case shows that the suit for recovery of possession of the shop was based on the ground of subletting of the premises and not on the ground of the arrears of rent, contemplated by Clause (i) of Sub-section (1) of Section 11 of the Act. In these circumstances, Section 12(4) of the Act could not be invoked in the instant case. The learned Sub-Judge was, therefore, wrong in applying Section 12(4) of the Act to the case and striking out the defence of the petitioners'.

27. In Paradise Industrial Corporation, Bombay v. Kiln Plastics Products 1976 Ren CJ 7 : (AIR 1976 SC 309) the meaning of striking out defence was explained by the Apex Court.

28. After giving thoughtful consideration to the controversy raised. I am of the opinion that the view which I have taken in Siyasaran's case (1982 Rajasthan LR 304) (supra) holds the field, so far as no contrary view has been taken by any bench of the Apex Court in any case. It is admitted and conceded by all the learned counsel that undoubtedly the case of Siyasaran (supra) was a case where Section 13-A had an important role to play, and much of the discussion was based on it, but, the judgment read as a whole, clearly goes to show that what has been repeatedly emphasized is that Sub-sections (3). (4), (5) & (6) of Section 13 of the Act are subsidiary and subservient of Section 13(1)(a), and they are dependent and not independent. In other words, once the ground mentioned in Clauses (a), (b) & (c) disappear and become non-existent on account of legislative mandate of Section 13-A(b), then any order passed under Sub-sections (3), (4). (5) & (6) shall have no adverse effect on the rights of the tenant. In my opinion, this rule applies to Section 13-A as well as Section 13(6) of the Act, the reason being, under Sub-section (6), once compliance is made of Sub-section (4) of the Act, no decree for eviction on the grounds specified in Clauses (a) to (l), can be passed. This is what precisely Section 13-A when it was introduced for providing protection to the tenants who had committed default in respect of Section 13-A earlier, meant and intended. Section 13-A provides a special protective umbrella to tenants against whom a suit was pending and who are still ready and willing to pay the rent due along with costs thereof in every such proceeding, the tenant can move an application within 30 days from the date of coming into force of the amending ordinance. Clauses (a) to (f) of that Section only shows that the protective umbrella was provided in respect of decrees even during pendency of appeals and revisions, and even in respect of execution, if they have not been executed so far.

29. It would thus be seen that logical and legal effect, implications and consequences of Section 13A(a) and Section 13(6) now in force, are identical so far as this aspect of the case is concerned. I am, therefore of the opinion that Siyasaran's case (1982 Rajasthan LR 304) (supra) is not limited to those cases where the tenants were concerned with applications under Section 13-A only, but would cover all other cases also.

30. Mr. Rastogi invited my attention to the case of this Court in Ramsaran v. Nathulal 1983 WLN 698, decided by a Single Judge of this Court, wherein, in para 15, the case of Siyasaran (1982 Rajasthan LR 304) (supra) has been discussed. In that case, the Hon'ble Judge while referring to the case of Siyasaran (supra), has observed that its applicability is limited to Section 13-A only.

31. With due respect, as I have discussed above, the horizons and dimensions of the benefit to be given to a tenant in respect of limitation to the consequences of striking out defence under clauses of default contained in Section 13(1)(a) of the Act is wide enough which cannot be limited to cases under Section 13-A only. With great respect, I would like to point out here that in the case of Ramsaran (supra) the Hon'ble Judge while trying to limit the implications of Siyasaran's case read Section 13-A only, although that case covers cases which do not emerge from Section 13-A only. In para 16 of Siyasaran's case (supra), the difference of a suit of composite nature and that based on the ground of default, has been discussed. In para 19 of that judgment, the question for consideration was posed as under :

'The crucial question which requires consideration is, whether in a case where there area number of grounds for eviction in addition to the ground of default, if a tenant fails to deposit the rent and interest etc. within the prescribed time, then Sub-sections (3), (4) and (5) will apply.'

Then, in para 21 onwards of that case, the observations of the Supreme Court as well as this Court for interpreting rent control law as beneficial to the tenants, has been discussed, the conclusion whereof is enumerated in para 23 onwards. In my opinion, what on account of Section 13-A disappears, is a ground. Payment being made under Section 13(4), default ground also disappears on account of Sub-section (6), even though Section 13-A cannot be made applicable, and no research is required, but a reading of Section 13 which is patent and not latent shows that no decree on the ground of default can be granted, once compliance of Section 13(4) is made. In my view, what Section 13-A provided for special cases which were pending at the time when the amendment was introduced for providing additional benefit to tenants even though they had committed defaults, has been provided in the form of a protection under Section 13(6). In both the cases, the ground of eviction on account of default in payment of rent disappears once the amount is paid. In both the cases, decree can be passed on other grounds contained in Clauses (b) to (l). In this view of the matter, with the greatest respect. I am unable to agree with the principle laid down in Ramsaran's case (1983 WLN 698), and firmly, I am of the view that the decision in Siyasaran's case (1982 Rajasthan LR 304) is not to be imprisoned in the fetters of Section 13-A only, but, it has got wider dimensions related to Section 13(1) because. Section 13(6) is the protective, umbrella which applies to all present cases under Section is as a whole Section 13-A was meant only for providing double protection for a limited period.

32. Thus, I am of the opinion, and as I have mentioned expressly in Siyasaran's case (1982 Rajasthan LR 304) (supra) it would be for the legislature to amend the law, if it wants that once a tenant commits a default in compliance of an order as envisaged in Sub-section (4), the defence against other grounds mentioned in Clauses (b) to (l) should be taken away, and he should be deprived of it. In spite of these observations having been made and law having been laid down on 12th Feb. 82, the legislature has not made it explicit by any amendment. That being so, I have got no hesitation in holding that Siyasaran's case applies to cases where there is no relevancy of Section 13-A also, and to imprison it within the four corners of Section 13-A, with due respect, would be narrowing down, limiting and putting fetters on the principle laid down in Siyasarar's case (supra), even though in either of the two judgments of this court referred to above, nowhere such fetters have been contemplated and horizons have been kept open to provide protection to all tenants to defend against the grounds mentioned in Clauses (b) to (l), even though the tenants would not be able to defend themselves on the ground mentioned in Clause (a) of Section 13 of the Act.

33. In this view of the matter, all that is required to be done is that the revision petition is partially accepted to this limited extent that the order striking out the defence, though legal, would not be interpreted to mean striking out the defence against grounds other than the ground mentioned in Clause (a), i.e., the ground of default. In other words, the tenant would be at liberty to defend himself against all other grounds, because, the instant is a case of composite nature and not a suit exclusively based on default. In the circumstances of the case, the parties shall bear their own costs.