Suleman Vs. Gordhan and ors. - Court Judgment

Excerpt:
rajasthan premises (control of rent & eviction) act, 1950 - section 13(4)(5)(6) (before amendment of 1976)--striking of defence--validity of--tenant raising dispute in written statement regarding amount of rent--held, it was incumbent for trial court to determine amount under section 13(5) and obligation to deposit amount arises after its determination--district court was not justified to strike out defence for not depositing rent.;the dispute with regard to amount of rent could be raised by the appellant in any form and in the present case, it was raised in the written statement filed on the first date of hearing. in view of the said plea in the written statement raising the dispute with regard to the amount of rent payable it was incumbent upon the trial court to determine the amount of rent under sub-section (5) of section 13 of the act and the obligation of the appellant to deposit the arrears of rent could arise only after the said determination had been made.;the learned district judge was not justified in law in holding that the defence of the appellant was liable to be struck out under sub-section (6) of section 13 of the act for the reason that the appellant had failed to deposit the amount of rent under sub-section (4) of section 13 of the act.;appeal allowed - - the said suit was based on the ground of default in payment of rent as well as the appellant having damaged the premises. 14 of 1976) and that under the unamended provisions it was incumbent upon the appellant to have moved an application before the trial court under section 13(5) of the act disputing the amount of rent payable by him and in the absence of his moving such an application and further on account of his failure to deposit the arrears of rent under section 13(4) of the act. the court held that since a dispute had been raised with regard to the amount of rent payable, sub-section (5) of section 13 of the act was attracted and the tenant could have deposited the rent only after the court had determined the same and since the court had failed to determine the amount of rent, the tenant could not be said to have failed to deposit the same in time allowed under sub-section (5) and his defence could not have been struck out. for the same reasons the learned district judge was not justified in law in holding that the defence of the appellant was liable to be struck out under subsection (6) of section 13 of the act for the reason that the appellant had failed to deposit the amount of rent under sub-section (4) of section 13 of the act. 207 of 1977 as well as the judgment and decree of the munsif, sikar dated 24th may, 1977 in civil suit no.s.c. agrawal, j.1. this is defendant's second appeal arising out of a suit filed by respondent against the appellant for eviction from a shop. the said suit was based on the ground of default in payment of rent as well as the appellant having damaged the premises. the munsif, sikar decreed the suit on the basis of the ground of default in payment of rent. he, how ever, did not accept the case of the plaintiff respondents that the rent for the premises was rs. 15/- per month, but found that the rent was rs. 5/-per month as claimed by the appellant. the munsif did not no accept the case of the plaintiff-respondents with regard to damage to the premises. on appeal, the district judge, sikar affirmed the decree of the munsif. the district judge was of the view that the suit in question was governed by the provisions contained in sub-sections (4)(5) and (6) of section 13 of the rajasthan premises (control of rent & eviction) act (here in after referred to as 'the act') as they stood prior to the amendments introduced by the rajasthan premises (control of rent and eviction) (amendment) act, 1976 (rajasthan act no. 14 of 1976) and that under the unamended provisions it was incumbent upon the appellant to have moved an application before the trial court under section 13(5) of the act disputing the amount of rent payable by him and in the absence of his moving such an application and further on account of his failure to deposit the arrears of rent under section 13(4) of the act. the defence of the appellant was liable to be struck out under section 13(6) of the act. the district judge, therefore, upheld the order for striking out the defence of appellant and affirmed the decree for eviction passed by the trial court. hence, this second appeal.2. i have heard shri a.k. bajpai, the learned counsel for the appellant. the respondents have chosen not to appear and contest the appeal.3. before dealing with the submissions urged by the learned counsel for the appellant, it would be necessary to set out the relevant provisions contained in sub-sections (4), (5) and (6) of the act as they stood prior to the amendment introduced by the rajasthan act no. 14 of 1976. the said provisions read as under:13(4) 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 tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to if, fix in this behalf, or within such time, not exceeding two months, as may be extended by the. court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last 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 together with interest on such amount calculated at rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate.13(5) if in any suit referred to in sub-section (4), there is any dispute as to the amount of rent payable by the tenant, the court shall determine, having regard the provisions of this act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with the provisions of section (4).13(6) if a tenant fails to deposit or pay any amount referred to in subsection (4) or sub-section (5) 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.4. the submission of the learned counsel for the appellant is that the provisions of sub-section (4) of section 13 of the act were not attracted to the present case and the provisions applicable were those contained in sub-section (5) in view of the fact that the appellant had raised a dispute with regard to the amount of rent payable by the appellant. in support of his aforesaid contention the learned counsel has submitted that the suit was filed on 28th march, 1974 and the first summons which were issued to the appellant requiring him, to file the written statement on 9th july, 1974 and that on 9th july, 1974 the appellant had file his written statement wherein he denied that the rent of premises is rs. 15/- per month as claimed in the plaint but asserted that the rent was rs. 5/- per month. the submission of the learned counsel is that on the first date of hearing the appellant, while filing his written statement had raised the dispute with regard to the rent payable by the appellant and in view of the said dispute having been raised by the appellant, the provisions of subsection (5) of section 13 of the act were attracted and it was obligatory for the court to decide the said dispute and that only after the same having been decided, the arrears of rent could be deposited within a period of 15 days of such order. in this regard the learned counsel has invited my attention to the decision of the court in jag mohan and anr. v. gani and ors., 1986 (2) rlr 64.5. in jag mohan and anr. v. gani and ors. this court has dealt with the provisions of section 13(5) referred to above and has laid down that no particular mode of raising a dispute about the rate or amount of the rent was provided for under section 13 and all that section 13(5) says that if in a suit referred to u/sub-section (4) there is any dispute as to the amount of rent payable by the tenant, the court shall determine and, therefore, all that is required is that it should be brought to the notice of the court that there is some dispute about the amount of rent payable by the tenant and as soon as this comes to the notice of the court the duty has been cast upon the court itself to determine the amount. this court has further laid down that sub-section (5) of section 13 does not require the tenant defendant to make an application requesting the court to determine the amount. in that case the plaintiff was claiming that the rent of the premises in dispute was rs. 25/- per month. on the first date of hearing the defendant moved an application wherein it was stated that rent from 1st dec, 1972 to 31st march 1975 at rate of rs. 15/- per month was due and that he was ready to deposit that amount totalling rs. 420/-and the court directed that the amount may be deposited in accordance with law and thereupon the amount of rs. 420/- was deposited by the defendant. the court held that since a dispute had been raised with regard to the amount of rent payable, sub-section (5) of section 13 of the act was attracted and the tenant could have deposited the rent only after the court had determined the same and since the court had failed to determine the amount of rent, the tenant could not be said to have failed to deposit the same in time allowed under sub-section (5) and his defence could not have been struck out.6. in view of the aforesaid decision in jag mohan and anr. v. gani and ors., it must be held that the learned district judge was not right in holding that for the purpose of bringing the case within the ambit of subsection (5) of section 13 of the act it was necessary for the appellant to move an application for depositing the amount of rent and ask for determination of the same. the dispute with regard to amount of rent could be raised by the appellant in any form and in the present case, it was raised in the written statement filed on the first date of hearing in view of the said plea in the written statement raising the dispute with regard to the amount of rent payable it was incumbent upon the trial court to determine the amount of rent under sub-section (5) of section 13 of the act and the obligation of the appellant to deposit the arrears of rent could arise only after the said determination had been made.7. in the present case the trial court did make a determination about the amount of rent payable by the appellant for the premises, but the said determination was made while deciding the issue no. 1 in the judgment dated 28th may, 1977 where by it was found that the amount of rent payable by the appellant for the premises was rs. 5/- per month and the said amount was due with effect from baishakh sud 1 s.y. 2025. after the said determination had been made, the appellant was entitled to be given 15 days time to deposit the amount of arrears of rent. the said time was not granted to the appellant and the suit was decreed on the ground of default. the appellant was thus denied the right available to him under sub-section (5) of section 13 of the act to deposit the arrears of rent determined as payable by the court. for the same reasons the learned district judge was not justified in law in holding that the defence of the appellant was liable to be struck out under subsection (6) of section 13 of the act for the reason that the appellant had failed to deposit the amount of rent under sub-section (4) of section 13 of the act. since the appellant had raised a dispute with regard to amount of rent in the written statement which was filed on the first date of hearing, the case was not covered under sub-section (4) and sub-section (5) of section 13 was attracted.8. for the reasons aforesaid, the appeal is allowed and the judgment and the decree passed by the district judge, sikar on 9th december, 1981 in civil regular appeal no. 207 of 1977 as well as the judgment and decree of the munsif, sikar dated 24th may, 1977 in civil suit no. 52 of 1974 are set aside. the matter will go back to the trial court, with the direction that he will determine the amount of rent payable by the appellant under section 13(5) of the act, as it stood prior to amendments made by the rajasthan act no. 14 of 1976 and the appellant will have 15 days time to pay or deposit the same from the date of the said determination. there will be no order as to costs in this appeal.