- (1.) THE present first appeal has been filed by the defendant Jai Singh s/o Chiman Singh against the plaintiff respondent Smt. Leela Sarraf wife of Dashrathmal under Section 96 CPC aggrieved by the eviction decree dated 29.04.2004 of the learned trial court of Additional District Judge (Fast Track), No.2, Jodhpur in Civil Suit No.257/204 - Smt. Leela Sarraf vs. Jai Singh in respect of the suit property ï ¿ 1/2 a shop situated near Jaljog Circle, Sardarpura, Jodhpur measuring 10 x 20 ft., which was initially given on rent to the defendant Jai Singh on monthly rent of Rs.200/ - per month.
(2.) THE suit in question was filed both under Section 13 for eviction and Section 6 for fixation of standard rent of the Rajasthan Rent Control Act, 1950. By an order dated 31.05.2003, the learned trial court determined the provisional rent for the suit shop and directed the defendant ï ¿ 1/2 tenant to pay Rs.200/ - per month from 01.01.2001 to 30.05.2003 and Rs.2,500/ - per month as provisional standard rent fixed to be paid subsequently. The order dated 31.05.2003 did not specify as to whether it is being passed under Section 7 of the Rent Control Act, 1950 or under Section 13(3) of the said Act of 1950. In the impugned judgment and decree dated 29.09.2004, the learned trial court found that the arrears of rent of Rs.5,800/ - in pursuance of the order dated 31.05.2003 was paid on 16.09.2003 and thereafter for the month of August 2003, the rent was paid on 18.09.2003, for the month of January 2004 on 16.02.2004 and for the month of April 2004 on 17.05.2004 and thus such payments not being within the stipulated time limit prescribed under Section 13(4) of the Act, the defence of the defendant ï ¿ 1/2 tenant was liable to be struck down under Section 13(5) of the said Act and consequently, the plaintiff was entitled to the decree of eviction and thus deciding the issue No.1 in favour of the plaintiff - landlord, the learned court below passed the eviction decree and as far as standard rent to be determined under Section 6 of the Act was concerned, the standard rent was fixed @ Rs.1500/ - per month as against provisional standard rent of Rs.1,500/ - per month under the order dated 31.05.2003, deciding the issue No.2 in favour of the plaintiff - landlord. Being aggrieved by the said judgment and decree, the present first appeal was filed by the defendant ï ¿ 1/2 tenant in this Court on 27.11.2004, which was admitted on 23.01.2006 and the execution of the decree was stayed subject to deposit of monthly rent as determined by the trial court regularly for the future period and, if there is any default in two successive installments, the stay petition was to be treated as automatically dismissed without reference to the Court. Mr. R.K. Thanvi, Senior Advocate assisted by Mr. Narendra Thanvi vehemently submitted that the order passed by the learned trial court on 31.05.2003, was not an order passed under Section 13(3) of the Act, but was an order under Section 7 of the said Act and, therefore, delay in payment of rent as determined by the learned trial court, if any, though he submitted that there was no delay, the consequence could not be striking out of the defence of the defendant - tenant and same could not automatically result in an eviction decree. Explaining the provisions of Section 7 visï ¿ 1/2aï ¿ 1/2vis Section 13(3), (4) & (5) of the said Act, Mr. Thanvi urged that while consequence of failure to comply with the order passed under Section 7 of the Act was only that the landlord would become entitled to seek eviction by filing separate suit on the ground of default in payment of rent under Section 13(1)(a) of the Act, whereas if the provisional rent is determined under Section 13(3) of the Act, the failure to comply with the same in accordance with the time frame prescribed in Section 13(4) of the Act, can result into striking out of the defence of tenant as per Section 13(5) of the Act and the same can result into an eviction decree against him. He submitted that the delay in payment of monthly rent for August 2003, deposited on 18.09.2003 though not exactly within 15 days from the end of month and for January 2004 on 16.02.2004 again not within 15 days from the end of the month and for April 2004 on 17.05.2004 again not exactly within 15 days from the end of the month, the delay was of one or two days only and, therefore, the learned trial court has wrongly invoked Section 13(5) of the Act and striking out the defence of the defendant ï ¿ 1/2 tenant, has granted the decree of eviction in favour of the landlord in the present case. Per contra, learned counsel for the plaintiff ï ¿ 1/2 respondent ï ¿ 1/2 landlord, Mr. N.R. Choudhary vehemently opposed the submissions of the learned counsel for the defendant ï ¿ 1/2 tenant, Mr. Thanvi and submitted that the issues involved in the present case are no longer res integra in view of the following two decisions of this Court and the order dated 31.05.2003 was an order under Section 13(3) of the Act, since a combined suit for eviction under Section 13(1)(a) and for fixation of standard rent under Section 6 of the Act was filed by the plaintiff ï ¿ 1/2 landlord and, therefore, in view of the admitted delay in deposit of rent fixed by the learned trial court under Section 13(3) of the Act vide order dated 31.05.2003, natural consequence thereof was the striking out the defence of defendant ï ¿ 1/2 tenant and passing of the eviction decree and as held by this Court and by Hon'ble the Supreme Court in the case of Nasiruddin and others vs. Sita Ram Agrawal reported in 2003(1) WLC (SC) 293, there was no question of any condonation of the delay in depositing the provisional rent as determined by the learned trial court under Section 13(3) of the Act and the learned trial court has rightly passed the decree under appeal for eviction. Learned counsel for the respondent -plaintiff, Mr. N.R. Choudhary further submitted that the learned counsel for the appellant ï ¿ 1/2 defendant Mr. Thanvi has not at all explained any reason of delay beyond 15 days time limit prescribed under Section 13(4) of the Act in the deposit of the arrears of Rs.5,800/ - in pursuance of the order dated 31.05.2003 after about 3 1/2 months on 16.09.2003, whereas the requirement of Section 13(4) of the Act is clearly to deposit the same within 15 days of such determination or within such further time not exceeding three months as may be extended by the Court. He urged that since there was no application on the part of the defendant - tenant to extend the time limit beyond 15 days of the order dated 31.05.2003 passed under Section 13(3) of the Act, there was no question of any automatic extension of time period by a period of three months and consequently the delay in deposit of arrears on 16.09.2003 of Rs.5,800/ - in pursuance of the said order dated 31.05.2003 was absolutely fatal for the defendant ï ¿ 1/2 tenant and his defence was liable to be struck down in terms of Section 13(5) of the Act resulting into the eviction decree. He further submitted that there was no difference in the consequences on account of non -compliance of the order passed either under Section 7 of the Act or under Section 13(3) of the Act. Learned counsel Mr. N.R. Choudhary, urged that even the non -compliance with the orders passed by the learned trial court under Section 7 of the Act results into an eviction decree as per Section 7(4) of the Act and since in the present case, there was a combined suit for eviction as well as for the fixation of standard rent under Section 6 of the Act, even if the order dated 31.05.2003 passed by the learned trial court was to be construed as the one passed under Section 7 of the Act and not under Section 13(3) of the Act for argument sake, the consequence of eviction cannot be faulted in view of non - deposit of the rent fixed by the learned trial court by the defendant ï ¿ 1/2 tenant within the stipulated time frame and there being no provision of condonation of delay in such deposit in view of the decision of the Hon'ble Supreme Court in the case of Nasiruddin and others vs. Sita Ram Agrawal (supra) and following the decisions of this Court, the present first appeal of the defendant ï ¿ 1/2 tenant deserves to be dismissed as the issue involved is no longer res integra.
(3.) I have heard the learned counsels at length, perused the impugned judgment and decree, record of the trial court and judgments cited at the bar. The relevant provisions of the Act in Section 6, 7 and 13 are quoted below for ready reference : Section 6 ï ¿ 1/2 Fixation of standard rent ï ¿ 1/2 (1) Where no rent has been agreed upon or where for any reason the rent agreed upon is claimed to be low or excessive, the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises. (2) The Court shall, after holding such summary inquiry as it may consider just and necessary, determine the standard rent for such premises and shall, in doing so, act according to the following principles, namely - (a) Where the premises are let for residential purposes or for any of the purposes of the public hospital, aushadhalaya or dawakhana, a recognised educational institution, a public library or reading room or any orphanage the standard rent shall not exceed the basic rent increased by fifty percent thereof; and (b) Where the premises are let for any other purpose, the standard rent shall not exceed two and a half times the basic rent thereof : Provided that where the premises have been first let after the first day of January, 1965, the standard rent shall not exceed the basic rent thereof : Provided further that where the fair rent or standard rent for any premises has been determined or redetermined by any court under this Act or by any authority under any law or order repealed by Section 30 before the commencement of the Rajasthan Premises (Control of Rent and Eviction Amendment) Ordinance, 1975 and the amount of such fair rent or standard rent is the same as would be determinable as standard rent by the Court under this section, the fair rent or standard rent previously determined or redetermined, shall not be disturbed. Section 7 ï ¿ 1/2 Fixation of Provisional Rent - (1) Upon the institution of a suit under section 6, the Court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force till a decree fixing the standard rent therefore is finally made in such suits. (2) The provisional rent fixed under this section shall also apply to such arrears of rent as, in the case of a tenant who has instituted within six months from the commencement of the tenancy a suit under section 6 on the ground of the rent agreed upon being excessive relate to the period intervening between such commencement and institution. (3) A suit for the recovery of arrears of rent to which the provisional rent fixed under this section is applicable shall be stayed by the Court upon the payment by the tenant in Court of the total amount due to the landlord the basis of such provisional rent. (4) Any failure to pay the provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction under clause (a) of sub -section (1) of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub -Section (1) were a decree of the Court in a suit for periodical payments. (5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed. 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 in execution of a decree or otherwise, eviction 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; or (b) ........... (c ) ........... (d) ........... (e) ........... (f) ........... (g) ........... (h) ........... (i) ........... (j) ........... (k) ........... (l) ........... (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, it 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 in 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 upto 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 upto 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 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 subsequently to the period upto 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 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. (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 pay 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 in 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 is 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 is 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." This Court in the case of Shyam Mahatma vs. Shri Babu Khan reported in 2009(2) RLW 1495 (RaJ.) following the decisions of Hon'ble the Supreme Court in the case of Nassiruddin & ors. vs. Sita Ram Agrawal reported in 2003(1) WLC SC ï ¿ 1/2 1498 held as under: "7. Here it may be stated that all these three judgments were rendered by respective learned Single Judges of this Court prior to the decision of Hon'ble Supreme Court In the case of Nasiruddin and Ors. v. Sita Ram Agrawal : [2003] 1 SCR 634 in which the Hon'ble Supreme Court dealing with the provisions of Rajasthan Rent Control Act 1950 held that the Court has no power to extend the time limit for payment of rent determined under Section 13(3) of the Act and, therefore, the provisions of Section 13(3) and 13(4) were mandatory and the strict compliance therewith was necessary. It will be appropriate here to quote para No. 36, 37 and 41 to 48 of the aforesaid judgment as under: 36. In a case where the statutory provision is plain and unambiguous, the Court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom. In E. Palanisamy v. Palanisamy (Dead) by Lrs. and Ors. : AIR 2003 SC 4464 , a Division Bench of this Court observed: ...The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters.... 37. It is also pertinent to note that the Rent Control Act is a welfare legislation not entirely beneficial enactment for the tenant but also for the benefit of landlord. See: Shri Lakshmi Venkateshwara Enterprises Pvt. Ltd. v. Syeda Vajhiunnissa Begum (Smt.) and Ors. : (1994)2 SCC 671. In that view of the matter, balance has to be struck while interpreting the provisions of the Rent Act. 8. Then in para 41 to 47 the Hon'ble Apex Court dealing with the provisions of Rajasthan Act itself held that Section 5 of the Limitation Act does not apply for extension of time under Section 13(4) of the Act, therefore, no such extension was possible beyond the period prescribed under the Act. 41. Thus, on analysis of the aforesaid two decisions we find that wherever the special Act provides for extension of time or condonation of default, the Court possesses the power therefor, but where the statute does not provide either for extension of time or to condone the default in depositing the rent within the stipulated period, the Court does not have the power to do so. 42. In that view of the matter it must be held that in absence of such provisions in the present Act the court did not have the power to either extend the period to deposit the rent or to condone the default in depositing the rent. 43. Coming to the second question, we are of the view that Section 5 of the Limitation Act, 1963 is not applicable where there is a default in depositing the rent by the tenant Under Section 13(4) of the Act. 44. It is true that Rajasthan Act does not expressly exclude the application of Limitation Act. But Section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant. 45. Section 5 of the Limitation Act reads under: 5. Extentlon of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period. 46. On perusal of the said Section it is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfied the court hat he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction o the ground set forth in Clause (a) of Sub - section (1) the tenant shall on the first date of hearing or on or before such date, the Court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in Court as determined under Sub -section (3) from the date of such determination or within such further time not exceeding three months as may be extended by the Court. Thus, Sub - section (4) itself provides for limitation of a specified period within which the deposit has to be made, which cannot be exceeding three months as extended by this Court. 47. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under Sub - section (4) of Section 13 of the Act. 9. About the need to comply with the order passed by the Court of Law, Apex Court observed in para 48 of the judgment that compliance of the order passed by the Court of Law in terms of statutory provisions does not give rise to cause of action and the failure to comply with the order, the consequences have to follow. Relevant part of para 48 is as under: 48. ...Compliance of an order passed by a Court of Law in terms of a statutory provision does not give rise to a cause of action. Failure to comply with an order passed by a Court of Law instant consequences are provided for under the Statute. The Court can condone the default only when the statute confers such a power on the Court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case. 10. In view of the aforesaid legal position now obtaining, the judgments relied upon by the learned, Counsel for the appellant defendant are of no avail to the defendant. There is no question, of waiver on the part of landlord on the delayed deposit of rent in question and withdrawal thereof by the landlord. Once the delay has occurred even the Court does not have power to extend the time limit, therefore, act of withdrawal of such rent belatedly deposited by the tenant cannot enure to the benefit of defendant tenant. A co -ordinate Bench of this Court in Shankarlal vs. Ved Prakash reported in 1993(2) WLN 626 held in para 47 of the judgment that in the present case, which is also a suit under Section 6 of the Act, the Court has determined the amount of rent payable for a month while determining the amount of arrears of rent payable under Section 13(3), for the purposes of present suit, is the provisional standard rent binding between the parties in terms of Section 7(1) of the Act until a final decree is passed and non -payment of such provisional rent by 15th of the next month furnishes the landlord a ground to secure eviction under Section 13(1)(a) of the Act. The relevant para 46, 47, 55 and 56 are quoted below for ready reference. "46. Applying this test in terms of language used in Sec.7(1) for the purposes of obligation to pay provisional standard rent until final decree is passed in the suit, the appeal is continuation of the proceedings of the suit itself and the obligation to pay rent at the rate of provisional standard rent continues, even at the stage of appeal. 47. In the present case, which is also a suit under Section 6 of the Act, the Court has determined the amount of rent payable for a month while determining the amount of arrears of rent payable under Section 13(3), for the purposes of present suit, is the provisional standard rent binding between the parties in terms of Section 7(1) of the Act until a final decree is passed and non -payment of such provisional rent by 15th of the next month furnishes the landlord a ground to secure eviction under Section 13(1)(a) of the Act. 55. As has been discussed above, in the case like present where suit is a composite suit for fixing standard rent as well as for eviction on ground set forth under Sec. 13(1)(a), and in such cases for the purpose of deposit of monthly rent also, appeal is continuation of suit. Secondly, in deciding the question of condonation of delay, two factors are always relevant: (i) whether tenant had sufficient cause for non -deposit or delayed deposit when the amount of rent became due; (ii) whether the conduct of tenant has not been contumacious. Contumacious conduct need not necessarily be confined to delayed deposit of amount but his conduct qua proceedings as a whole will be relevant while considering whether a discretion be exercised in favour of an erring party. Discretion of court is always a part of its equity jurisdiction which has to be exercised in consonance with the justice of the case in a judicious manner. It has been noticed above, that since obtaining protection of this court against his eviction, on condition of payment of rent month by month, way back in July, 1981, the tenant has not even deposited rent month by month but has regularly indulged in late deposits, until plaintiff filed execution on 3rd August, 1991. Such late deposits are not on a few or stray occasion and for a few days but rent for months together has not been paid with regularity in sheer disregard of statutory provisions as well as orders of this Court; whose protective umbrella he seeks, and he started making payment in advance only after 3.8.1991, after 10 years of obtaining stay order and execution was laid for committing breach of court's order. No condonation application showing any sufficient cause was ever made in this regard until after judgment in the present appeal was reserved. No sufficient cause was shown for such delayed payment except that such delay in appeal is not relevant. Such a conduct of appellant cannot but be contumacious and such conduct is sufficient to refuse exercise of discretion in favour of appellant at this stage in the present case. 56. In the facts and circumstances of this case, I am fortified in my view by decision of Supreme Court in Mrinalini Shah's case (supra), wherein the Apex Court taking notice of irregular payment like in the present case, observed as under: "...... if he persistently defaults during the pendency of the suit or appeal in paying the rent, such as where he pays it at irregular intervals of 2 or 3 or 4 months ï ¿ 1/2 as is the case before us ï ¿ 1/2 the Court has no discretion to treat what were manifestly irregular payments, as substantial compliance with the mandate of this clause irrespective of the fact that by the time the judgment was pronounced all the arrears had been cleared by the tenant. ;