- (1.) IN this second appeal the appellant is a tenant against whom a decree for ejectment has been passed by the Additional Munsif, Jodhpur and maintained in appeal by the Additional District Judge No. 1, Jodhpur.
(2.) THERE is a building popularly known as Lakhekhan building situate in Jodhpur inside Siwanchi Gate. Respondent Lakhekhan is the owner of this building. The suit premises is a shop in this building. Appellant Mohanlal has been a tenant in the shop at the rent of Rs. 15/- per month. The respondent served a notice of eviction under Sec. 106 of the Transfer of Property Act terminating the tenancy of the appellant. The tenant did not vacate the suit shop. Respondent-plaintiff therefore instituted the civil suit No. 49/62 in the court of Munsif on 4-7-1967. He claimed eviction of the tenant on three grounds : (1) That the defendant neither paid nor tendered rent from Bhadwa Sud 1 Samwat 2021 corresponding to 8-9-1964, (11) that the defendant made certain material alterations in the suit shop without the plaintiff's consent and (iii) that the shop was required for the plaintiffs son Wali Khan and his requirement was reasonable and bona fide. Lakhekhan accordingly prayed for the eviction of the tenant from the suit shop; a decree of Rs. 590. 25 as arrears of rent; mesne profits at the rate of Rs. 30/-per month for use and occupation of the shop from the date of the suit; interest on the above sums at the rate of the 6% per annum and the costs of the suit. The defendant-tenant admitted the tenancy and having paid rent upto Bhadwa Sud 1 Samwat 2021. It was, however, alleged by him that he was not at all a defaulter. He sent the rent by money order, but it was not accepted by the landlord. He also denied having made any alterations in the suit shop. He also refuted the contention of the landlord that the shop was required for his son Wali Khan. He also alleged that the plaintiff had been pressing him to increase the rent to Rs. 50/- per month. 9-1967 WAS the first date of hearing on which the defendant put in appearance. He made an application on that date to determine the rent due and to fix up a date for depositing the said amount in the court. The case WAS fixed on 29-9-67 for the plaintiff to file his reply to this application. The Munsif WAS then transferred. His successor in office by his order dated 20-10-1967 ordered the arrears of rent and interest to be deposited in the court upto 20-11-1967. The defendant then deposited Rs. 783/- on 16-11-1967. The break up of this amount is as follows - Rent for the period - (i) From Bhadwa Sud 2 Samwat 2021 to Pos Sud 2 Samwat 2024 Rs. 615. 00 (ii) Costs of the suit Rs. 122. 50 (iii) Interest on arrears of rent Rs. 45. 50 Total Rs. 783. 00 The court proceeded with the hearing of the suit and framed the following three issues on 6-1-1963 - (1) Whether the plaintiff required the suit shop for himself bona fide and reasonably? (2) Whether the defendant has made material alterations and is liable to be evicted? (3) Whether the plaintiff is entitled to recover Rs. 30/- per month as mesne profits for use and occupation of the shop? While the trial of the suit was in progress, plaintiff moved an application under sec. 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) on 8-11- 1968 asking the court to strike out the defence of the defendant against eviction as he failed to comply with the requirement of sec. 13 (4) of the Act. This application was opposed by the defendant by a written reply dated 22-11-1968. The learned trial Judge, after hearing the parties, allowed the application and the defendant's defence against eviction was struck out by his order dated 11th January, 1960. This order was challenged in appeal, but without success. The order was also challenged in revision but it was found to be correct and accordingly maintained. (vide Mohanlal vs. Lakhekhan 1969 Weekly Law Notes 370 ). The learned Munsif continued the trial of the case. Plaintiff had already closed his case on-8-1963. As a result of the order striking out the defence, the defendant could not produce his evidence. The first two issues were decided in favour of the plaintiff, while the third issue was decided against him. The plaintiff's suit was decreed for ejectment and for arrears of rent and surprisingly he was also granted a decree for the recovery of mesne profits at the rate of Rs. 30/- per mouth from the date of the institution of the suit to the date of delivery of possession, even when issue No. 3 was decided against the plaintiff. Being aggrieved of this decree, the defendant preferred an appeal. The Additional District Judge No. 1, Jodhpur, who dealt with the appeal, while upholding the finding on issue No. 1 disagreed with the conclusion of the learned trial Judge on issue No. 2. The appeal was eventually dismissed by his judgment dated 21-10-69. It is this decree which is the subject matter of challenge before me in this Court. Learned counsel for the parties made their respective submissions at length. After having heard them, I was inclined to remit the case by my order dated 11-5-1972 to the Additional District Judge for his finding on the following issue : "whether the defendant neither paid nor tendered the amount of rent due from him from Bhadwa Sud 2, Samwat 2021?" The finding of the learned Judge in this regard is in the affirmative. I have again heard learned counsel for the parties on 29-8-72. I will now deal with their contentions one by one. Learned counsel for the appellant has argued that the decision of the lower appellate court is based on an erroneous view of law. He invited my attention to the observations made in para 2 of the first appellate court's judgment which read as follows : - "once under sec. 13 (6) of the Act of 1950, the court had ordered the defence against eviction to be struck out, no protection under sec. 13 (1) (a) to (k) was available to the tenant. " For this, the learned Judge placed reliance on some observations of Hon'ble Lodha J. in this very case (1969 W. L. N. 370) when this case had to gone him in revision. I will refer to those observations at the appropriate stage. The first appellate court also relied upon another decision of Lodha J. in Bansi Lal vs. Laxmi Chand (1 ). It was laid down that once the defence of the defendant against eviction has been struck out, the plaintiff is not bound to prove any of the condition laid down for claiming ejectment under sec. 13 (1) (a) to (k) of the Act. On account of this view taken by Lodha J. the court of first appeal held that it was not necessary for the trial Judge to have given findings on the issues that the shop in dispute was required reasonably and bona fide by the plaintiff for his son Wali Khan and that the defendants had made material alterations in the premises without the permission of the plaintiff, though the learned Judge also gave findings on issues No. 1 and 2 on merits. Mr. Shrikishan Mal Lodha has very strenuously challenged the view taken by the first appellate court and he also submitted that the view taken by Lodha J. was obiter in the case of Mohanlal vs. Lakhekhan, whereas in the case of Bansilal (l) he relied upon the statement of the plaintiff and did not appear to have expressed his final view in the matter. At any rate, it was urged that the view taken by Lodha J. was not sound. On behalf of the appellant, the finding on issue No. 1 that the requirement of the plaintiff was reasonable and bona fide has also been challenged. It has, therefore, become necessary for me to examine the real effect of striking out defence under sec. 13 (6) of the Act.
(3.) I will at the outset examine the scheme of the Act relating to the eviction of tenants. Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was enacted to control the eviction from, letting of, and rents for, certain premises in the State of Rajasthan as it was expedient to provide for them. By sec. 31 of the Act, the Act was originally enacted for a period of two years. This section was amended from time to time and its life was extended. It continues to remain to date. This Act provides that the provisions of this Act shall be in addition to and not derogatory to any other law on the subject for the time being in force. According to the provisions of the Transfer of Property Act, a tenancy can be determined in one of the modes contained in sec. 111 of that Act. After determining the tenancy, a landlord is entitled to eject a tenant in the ordinary course of law. But this Act (No. 17 of 1950) provides that 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 evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act. This provision clearly lays down a legislative mandate that the Court shall not order eviction or evict a tenant in execution of a decree which may have been passed before the commencement of this Act as long as the tenant is ready and willing to pay rent in accordance with the provisions of this Act. This restriction provides certain exceptions and they are contained in clauses (a) to (1) of sec. 13 (1 ). If the court is satisfied on one or more of these grounds, it will be competent for the court to order eviction of the tenant. The grounds are set out below : - " (a) That the tenant has neither paid nor tendered the amount of rent due from him for six months; 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 purposes 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, sublet or otherwise parted with the possession of the whole or 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 and 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 bonafide by the landlord - (i) for the use or occupation of himself or his family; or (ii) for the use and occupation of any person for whose benefit the premises are held; or (iii) for a public purpose; (iv) for philanthropic use; or (i) that the tenant has himself acquired vacant possession of, or been allotted 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 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 pursuance 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 (l) That the landlord has been required by any authority under any law to abate the overcrowding of the premises. After the tenancy of a tenant is terminated in accordance with the provision of sec. 111 of the Transfer of Property Act and there exists one or more of the grounds, the landlord will be entitled to seek eviction of the tenant under sec. 13 of this Act and if the eviction is sought on the ground set forth in clause (a) referred to above with or without any other ground, this Act further provides protection to the tenant. The tenant is permitted to deposit in the court or pay to the landlord on the first date of hearing or on or before such date as the court may on an application made to it fix in this behalf or within such time not exceeding two months 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 up to the end of the month previous to that in which deposit of the payment is made together with interest on such amount calculated at the rate of 6% per annum from the date when any such amount was payable up to the date of the deposit. The tenant is also required thereafter to continue to deposit or pay month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate. This is provided by sec. 13 (4 ). According to sec. 13 (5) if there is a dispute raised by the tenant as to the amount of rent payable by him which may be on account of rate of rent or the period for which the amount was payable, the court shall determine the amount to be deposited or paid to the landlord by the tenant within 15 days from the date of such order. If the amount is deposited or paid as required by sub-sec. (4) or sub-sec. (5) no decree for eviction on the ground specified in Cl. (a) of sub-sec. (1) of sec. 13 shall be passed by the court. This mandate is contained in sub-sec. (7) of sec. 13. In the event the tenant fails to deposit or pay the amount as required by sub-sec. (4) or sub- sec. (5), then sub-sec. (6) of sec. 13 lays down that the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. It is the interpretation of this sub-section that falls for determination. The meaning of the expression "striking out the defence against eviction" came for consideration in Naneshah vs. Ramkumar (2 ). Bhandari, J. who decided this case held that the striking of the defence against eviction meant only the defences raised by the tenant to contest his liability for ejectment and it did not mean the defences outside the Act such as that his tenancy has not been validly terminated or that he is not a tenant at all or that he is a tenant of only a part of the property and not of the entire property for which the suit has been brought against him. It will be apt to reproduce para 10 of that decision : - "the last sentence of sub-sec. (5) makes it incumbent on the court to strike out the defence of the defendant against eviction in case the tenant fails to deposit the rent by the 15th of the next following month. What is meant by striking out the defence against the eviction ? Does it mean the special defences to the grounds of ejectment mentioned in sub-sec. (l) (a) to (k) or all the defences raised by the defendant to contest his liability for ejectment ? In my opinion, the proper interpretation is that it does not mean the entire defence of the defendant because in a suit against eviction, the defendant may be taking up defence, such as his tenancy has not terminated, or that he is not tenant at all, or that he is a tenant of only a part of the property and not of the entire property for which the suit has been brought against him. It is contended that in the concluding part of this sub-section, it is mentioned that the tenant is to be placed in the same position as if he had not defended the suit and these words show that the entire defence of the defendant should be struck out whether such defence relates to the denial of the tenancy, or to the rate at which the rent is payable, or to the termination of tenancy. In my opinion, such an interpretation is not warranted looking to the context in which these words have been used. Sub-sec. (5) no doubt says that the defendant shall be placed in the same position as if he had not defended the suit, but preceding these words are the words which call upon the court to order the defence against eviction to be struck out, and these words must be construed as meaning striking off the defence against eviction taken up by the tenant in answer to allegations of the landlord that his case falls under clauses (a) to (k) of sub-sec. 1. If this interpretation is not adopted, a person, who is in fact not a tenant, will be at the mercy of the plaintiff who alleges that the defendant is his tenant and that he had committed default in the matter of payment of rent. Let it not be forgotten that it is not even left to the discretion of the court whether to strike out or not the defence of the defendant on the failure of a person to deposit the rent for any month. It makes incumbent on the court to strike out the defence. In support of this view, I may cite D. R. Gellatly vs. R. R. W. Cannon (AIR 1953 Calcutta 400 which was a case in which sec. 14 (4) of the West Bengal Premises Rent Control (Temporary Provisions) Act which contained a provision similar to sec. 13 (5) of the Act was considered. It empowered the court to order striking out the defence and placing the tenant in the same position as if he had defended the claim to ejectment in case the defendant contested the suit as regards the claim for ejectment and failed to make deposit of the rent at such rate month by month as ordered by the court. Chakravartti C. J. observed as follows; "if the person, sued as a tenant pleads that he is not a tenant, then till that question is decided against him, there can be no question of proceeding against him as a tenant or applying to him sec. 14 (4) or any other provision of the said Act. " In my humble opinion, the defence of the defendant in the instant case that he was not a tenant had been wrongly struck off by the trial court. " This decision does not resolve the present controversy between the parties. The question that further arises is whether after the defence against eviction is struck out, is it obligatory for the plaintiff to still satisfy the court that one or more of the grounds exist to seek an order of eviction against the tenant. Only two decisions of this Court on this point have been referred to by learned counsel for the parties and they have also been relied upon by the first appellate court. As noticed earlier, this case had come in revision (1969 W. L. N. 370) before Lodha J. While upholding the order of the Additional District Judge No. 2, Jodhpur, he observed - "thus in a suit for eviction brought by the landlord on the ground of non-payment of rent, it is compulsory for the tenant to comply with sec. 13 (4) of the Act irrespective of all other considerations and if He does not do so the benefits of the Act would not be available to him. In this view of the matter there is no room for argument that the plaintiff had abandoned the ground of default by the tenant in payment of rent. "Learned counsel for the petitioner urged that the opening words of sec. 13 (1) create a bar against a decree for eviction being passed against a tenant unless it was satisfied that the tenant has neither paid nor tendered the amount of rent due from him for six months, and, therefore, irrespective of the provisions of sub-sec. (4) and sub-sec. (6) it is obligatory on the part of the court to enquire whether the default as contemplated by clause (1) has been committed by the tenant ? The answer to this question is furnished by the provisions of sub-sec. (4), (6) and (7 ). Sub-sec. (4) makes it obligatory on the part of the tenant to deposit the rent in arrears and to continue to deposit or pay the monthly rent thereafter in the manner provided therein and sub-sec. (7) makes it clear that if the tenant does so then he cannot be evicted even though he may have committed default in payment of rent as provided under sub-sec. (1), clause (a ). But in order that he may claim protection from eviction on the ground set forth in clause (a) of sub-sec. (1) of sec. 13, it is obligatory for him to comply with the provisions of sub-sec. (4) and if he does not do so, his defence against eviction under the Act has to be struck out under sub-sec. (6 ). In other words, the safeguards provided to the tenant under sec. 13 of the Act which is a special law ceases to be available to him on his failure to carry out the statutory obligations imposed upon him by that section itself." The limited question before the learned Judge was whether the order of the trial Judge terminating the defence of the tenant against eviction on 18th January, 1969 was correct and whether it was rightly affirmed by the first appellate court. It was not in dispute that the requirements of sec. 13 (4) were not complied with. It was rather admitted that the rent for the subsequent months after 20th November, 1967 was not deposited in accordance with sec. 13 (4) of the Act. It was urged on behalf of the tenant that he did not commit any default and the plaintiff in not having pressed for an issue on that question must be deemed to have abandoned the ground of default and he could not, therefore, by an application submitted after about a year, ask for the defence against eviction to be struck out. The learned Judge found that the plea cannot be deemed to have been abandoned. But he proceeded further and went on to observe what has been underlined (printed in italic) by me. According to those observations, he meant to lay down the law that after the defence of the tenant against eviction is struck out, in his own words, "the safeguards provided to the tenant u/s. 13 of the Act" will cease to be available to him. Certainly, he was not called upon to decide this question. These observations are clearly obiter dicta and cannot be said to have decided the point in controversy in the present case. The first appellate court has placed reliance on these observations. ;