SHINGHAL, J. - (1.) BOTH these appeals relate to the suit of plaintiff-appellant Pyare Lal for the eviction of defendant Halka Singh and the recovery of arrears of rent, and will be disposed of together although they arise from two different judgments and decrees of the learned Senior Civil Judge, Jaipur City.
(2.) THE circumstances giving rise to these appeals are these : Defendant Halka Singh executed rent-note Ex. 1 on July 25, 1954, in favour of the plaintiff, according to which the tenancy was to commence from Jeth Sud 15, Smt. 2011 in respect of one 'kotha' and one 'jharokha' situated on the first floor of the plaintiff's house in Jaipur City. It was agreed between the parties that the rent payable for the premises would be Rs. 3/- per mensem. THE plaintiff instituted a suit in the court of the learned Munsiff Jaipur City (East) on February 24, 1958, alleging that the defendant had paid only Rs. 27/- by way of rent up to Phalgun Sud 15 Smt. 2011 and that he had committed a default in respect of the rent payable for the period Chaitra Bad 1, Smt. 2011 to Maha Sudi 15, Smt. 2014. THE plaintiff therefore sought to recover Rs. 108/- on account of arrears of rent for a period of 31 months, and a further sum of Rs. 6/- for the expenses incurred by him on electricity, water and other miscellaneous items, totalling to Rs. 114/ -. He also prayed for the defendant's eviction from the suit premises on account of the defaults. THE defendant admitted the tenancy but pleaded that he had, as a matter of fact, paid Rs. 84/- on account of rent for a period of 28 months and not merely Rs. 27/- as alleged by the plaintiff. Further, he pleaded that only Rs. 45/- remained to be paid to the plaintiff for the period November 25, 1956 to February 24, 1958, and that it was the plaintiff who had dishonestly refused to accept its payment. THE written statement of the defendant was filed on April 25, 1958, and there can be no doubt that he contested his liability to pay the arrears of rent claimed by the plaintiff and contested the plaintiff's assertion that he was a defaulter. THE defendant also contested the suit on the ground that he was not liable to make any payment on account of electricity and water etc. for which the plaintiff had sought to recover a sum of Rs. 6/- in all. Further, he took the defence that no notice had at all been given to him and that the plaintiff's assertion in that respect was incorrect. Five issues were framed by the learned Munsiff covering the various points in dispute referred to above. Ultimately, he decreed the suit in full on July 31, 1959. THE defendant preferred an appeal to the Senior Civil Judge. That appeal was allowed by the learned Judge on January 28, 1960 for the reason that he reached the conclusion that sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act, was applicable to the case but was not applied by the trial Court. He therefore remanded the case and directed the Munsiff to comply with the aforesaid provision and to dismiss the plaintiff's claim for the defendant's eviction if the defendant paid the arrears of rent within the time prescribed for the purpose. Appeal No. 259 of 1960 has been directed against that appellate judgment of the learned Senior Civil Judge. It appears that in pursuance of the aforesaid order of remand, the Munsiff purported to make an order under sec. 13 (4) of the Act on March 3, 1960, requiring the defendant to pay the sum of Rs. 222/- in all, within a period of 15 days. The defendant admittedly made the payment within that period and so the learned Munsiff dismissed the suit for the defendant's eviction on March 19, 1960. An appeal was preferred against that judgment and decree as well, but it was dismissed by the learned Senior Civil Judge on August 16, 1961. It is against that judgment and decree that the plaintiff has preferred second appeal No. 712 of 1961. It may be mentioned at the outset that there is no dispute between the learned counsel for the parties that this case falls to be decided in accordance with the provisions of the Act as they stood before its amendment by Act No. XXIV of 1958. The relevant provisions are as follows - "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 land-lord, 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, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for any two months : Provided that no eviction shall be ordered under this clause if the tenant pays in Court on the first day of hearing such an ears of rent together with the costs of the suit : Provided further that the tenant shall not be entitled to the benefit of protection against eviction under this clause if he has made a like default in payment of rent on three occasions within a period of Eighteen months; (4) In a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), if it is not dismissed for either of the reasons stated in the proviso thereto, the Court shall on the first day fixed for the hearing thereof by order determine the amount of rent due from the tenant, which is in arrears, up to the date of such order as also the amount of interest thereon at the rate of six per centum per annum and of the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amounts so specified on or before a date fixed thereby from, but exclusive of the date thereof. If on or before the date so fixed for payment the tenant deposits in Court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord. (5) If, on the first day fixed for the hearing of such a suit, the tenant expresses his intention to contest the same or if he fails to made the payment referred to in sub-sec. (4), the Court shall proceed with the hearing of the suit and may, on the application of the landlord made at any stage of the suit and alter giving an opportunity to the parties to be heard, make an order, requiring the tenant to deposit in Court month by month the rent at the rate at which it was last paid. On his failure to deposit the rent for any month by the fifteenth day of the next following month, the Court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit. " As has been mentioned, the plaintiff's case was that the defendant had committed defaults in the payment of the rent inasmuch as he had not paid the rent for a period of 36 months from Chaitra Bad 1, Smt. 2011 to Maha Sud 15, Smc. 2014, so that, according to the plaintiff, there were, at any rate, more than three defaults within a period of 18 months for the payment of the rent. The plaintiff's case therefore clearly fell within the purview of the second proviso to clause (a) of sub-sec. (1) of sec. 13 of the Act. Even so, the defendant has been given the benefit of sub-sec. (4) of sec. 13 of the Act ignoring the fact that he had contested the suit on the above-mentioned grounds and had clearly disputed his liability to pay the arrears of rent. The only point, therefore, which falls for determination in both these appeals is whether the defendant-respondent could be said to be entitled to the benefit of that provision. In order to appreciate the controversy which centres round this point, it may be mentioned that, for the reasons mentioned above, there can be little doubt that the contest of the defendant was not based on the mere ground that there was an arithmetical mistake in calculating the amount of the rent due up to date, the interest and the costs of the suit. It has been argued by Mr. Kasliwal, learned counsel for the appellant, that, in view of this, the defendant was not entitled to the benefit of sub-sec. (4) of sec. 13 of the Act and he has placed reliance on Shambhoo Ram Vs. Mangal Singh (1), Motiram Vs. Parmanand (2), Jangannath Prasad Vs. Sarajlal (3), Gorulal Vs. Gopi Chand (4) and Nandlal Vs. Mohammed Sadiq (5 ). On the other hand, Mr. Bhandari has argued on behalf of the respondent that the case of Labhchand Vs. Ganpatlal (6) governs the present controversy and that even if the defendant has contested his liability to pay the rent, he would still be entitled to the benefit of sub-sec. (4) of Sec. 13 of the Act. Further, the learned counsel has argued that what sub-sec. (4) of sec. 13 contemplates is that the trial court should first make an order, on the first day fixed for the hearing of the case, determining the amount of rent due from the tenant, which is in arrear, as also the amount of interest thereon and the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of those amounts on a date fixed for that purpose and that the court can proceed with the hearing of the suit only if the defendant fails to make payment in time. It is therefore necessary to consider the above mentioned cases and I shall take them up in their chronological order. The first of these is Shambhooram's case (1) in which a bench of this Court was called upon to interpret not only the effect of the first proviso to clause (a) of sub-section (1) of section 13 of the Act but also sub-sec. (4) of that section and the following observation of their Lordships are directly in point "sec. 13 (1) (a) first proviso and sec. 13 (4) apply where there is no contest by the tenant except as to mere arithmetical calculation of the amount of rent due up to date, the interest and the costs of the suit. I am for present purposes not saying anything about the conflict that has arisen in this Court about the second proviso to sec. 13 (1) (a) and sec. 13 (4 ). Then comes sec. 13 (5 ). The expression of the intention to contest immediately arises as soon as the tenant files a written statement contesting the suit on any ground other than just mentioned above and need not be in so many express words. As soon as sec. 13 (5) applies and there is a contest of the nature other than what has been said above relating sec. 13 (4) or where, in case there was no contest and the tenant was given time to pay under sec. 13 (4), he did not avail of it by paying the amount within clear fifteen days of the order, the tenant cannot be allowed the benefit of the first proviso to sec. 130) (a) or sub-sec. (4) of sec. 13 and the suit must take its course under the general law of the land. For our purpose, it would be sufficient to say that it has been clearly held in this case that sec. 13 (4)will apply where there is no contest by the tenant except as to mere arithmetical calculation of the amount of rent due upto date, the interest and the costs of the suit, and that as soon as there is a contest of any other nature, the tenant cannot be allowed the benefit of sub-sec. (4) of sec. 13. It has further been clearly laid down in this case that defendant's intention to contest the suit is expressed as soon as he files a written statement contesting it on a ground other than that mentioned above. It appears that this decision in Shamboo Ram's case (1) was brought to the notice of and was referred to by a full bench of this Court in Daulat Ram vs. Lakhu Mal and another (7) although the question for determination in that case was whether the tenant was entitled to the protection of sub-sec. (4) of sec. 13 even if he made the defaults mentioned in the second proviso to sec. 13 (1) (a ). While answering that question in the affirmative, the full bench had nothing to say against the decision in the Shambhoo Ram's case (1) that a tenant could not claim the benefit of sub-sec. (4) of sec. 13 where he raised a contest other than that relating to mere arithmetical calculation of the amount of the rent and interest etc. so that the case continued to hold the field. The next case for consideration is Moti Ram's case (2) in which a bench of this Court expressly considered the question of the applicability of sub-sec. (4) of sec. 13 of the Act in a case which fell within the purview of the second proviso to sec. 13 (1) (a ). In that case the defendant denied his liability to pay the rent claimed by the plaintiff, and pleaded that a much smaller amount was always prepared to pay that amount and had even remitted it to the plaintiff by a money order which had been refused. The defendant also raised an objection about the maintainability of the suit on the ground that the notice to quit was defective and did not terminate the tenancy according to law. Their Lordships considered and approved the decision in Sambhoo Ram's case (1) and held as follows - "sub-sec. (4) affords protection to a tenant in those cases where he does not raise a contest, except as to arithmetical calculations about the amount of the rent. If a tenant denies his liability to pay rent and joins issue on that matter, and subsequently fails, it is not open to him to claim protection under sub-sec. (4) of sec. 13. For authority in this connection we may refer to Sambhoo Ram vs. Mangal Singh. In the present case the defendant having denied his liability to pay the rent and having joined contest, is not entitled to the protection of sub-sec. (4), and obviously he having defaulted on more than three occasions during the period of 18 months, the plaintiff-respondent is entitled to eject him, and he cannot claim protection under any of the provisions of the Act. " Thus this case is also an authority for the proposition that the protection of sub-sec. (4) of sec. 13 is available only when the contest raised by the defendant relates to arithmetical calculations and not to the liability to pay the rent. So also, in Jagannath Prasad's case (3), a learned single Judge of this Court relied on the earlier decision in Sambhoo Ram's case (1) and Moti Ram's case (2) and held that while tenant is entitled to the protection of sub-sec. (4) of sec. 13 even if his case fails within the purview of the second proviso to sec. 13 (1) (a), that protection would not be available if he has raised a contest on a point other than that relating to the arithmetical calculation of the rent payable to the plaintiff. The same view was taken by another learned single Judge in Gorulal's case (4 ). In that case, the claim for eviction was based on the alleged defaults in the payment of the rent committed by the defendant over a period of 3 years and the defendant disputed the claim on several grounds including the plea that he had paid certain sum of money to the plaintiff already. Gorulal's case was also therefore a case which fell within the purview of second proviso to sec. 13 (1) (a) of the Act. After a review of the earlier decisions of this Court in Sambhoo Ram vs. Mangal Singh (1) and Moti Ram vs. Parma Nand (2), the learned single Judge arrived at the following conclusion : - "it is also clear from these decisions that the defendant must be deemed to have contested the suit if he disputes his liability to pay rent which is claimed from him or contests that he is a defaulter or raises any other dispute in that connection and this result be avoidable only where the dispute may happen to be as to a mere arithmetical error in the calculation of the rent due or a similar error in the calculation of interest or costs. " The same learned Judge was called upon to decide the case of Nand Lal vs. Mohammed Sadiq (5 ). The plaintiff pleaded in that case that the defendant had committed defaults in the payment of rent and house tax for a period of one year, but the defendant denied that he was a defaulter and also disputed the legality of notice to quit. It was held that as the contest raised was on a point other than that of mere arithmetical errors as to calculation of the amount of rent or interest or the costs of the suit, the tenant must stand deprived of the protection available under sub-sec. (1) howsoever good the point of contest may be, and that the suit must be set down for hearing on the merits.
(3.) IT would thus appear that it is the well established view of this court, on the authority of the two bench decisions in Shambhoo Ram's case (1) and Moti Ram's case (2), that the benefit of sub-sec. (4) of sec. 13 is available to a tenant only in a case where there is no contest by him except as to mere arithmetical calculation of the amount of rent, the interest and the costs of the suit and that if there is any other contest, as for example, a contest about the liability to pay the arrears of rent, the protection would not be available and the plaintiff's case must proceed further for disposal under the general law of the land. Mr. Bhandari has however argued that as Shambhoo Ram's case (1) was governed by the first proviso to clause (a) of sub-sec. (1) of sec. 13, and not by the second proviso, the decision given in respect of it would not be applicable to the present case. The argument is futile, for their Lordships were concerned not merely with the consideration of the first proviso to sec. 13 (1) (a), but also with sub-sec. (4) of sec. 13 and it was clearly held by them that sec. 13 (4) would not apply where there was a contest by the tenant except as to mere arithmetical calculation of the amount of rent and interest etc. Thus so far as the question of the applicability of sec. 13 (4) is concerned, there is no difference in the case under consideration and Shambhoo Ram's case (1) and it is futile to argue that Shambhoo Ram's case is distinguishable. Mr. Bhandari has next placed reliance on the decision of this Court in Daulat Ram's case (7) but, for reasons already mentioned, their Lordships were concerned in that case with the question whether a tenant could be said to be entitled to the protection of sec. 13 (4) even if he had made the defaults mentioned in the second proviso to sec. 13 (1) (a), and they answered that question in the affirmative, but did not question the correctness of the decision in Sambhoo Ram's case (1) in regard to the scope of that protection. Lastly, Mr. Bhandari has strenuously urged that the decision in Labh Chand vs. Ganpat Lal (6) having been given much after the decisions in Sambhoo Ram vs. Mangal Singh (1) and Moti Ram vs. Parma Nand (2), it should be considered to interpret those decisions correctly and the benefit of that decision should be made available to the present respondent as well. In Labhchand's case (7), the plaintiff pleads that there were more than three defaults of two months on several occasions from November 5, 1952 to December 5, 1955, and that the defendant had sub-let the premises and also that the plaintiff required the premises for his personal bona fide use. The defendant, inter alia, denied the alleged defaults. He pleaded that he had paid the rent regularly up to November 20, 1955 and that he had sent the rent for the subsequent period also but it had been refused by the plaintiff. There can be little doubt, therefore, that the defendant contested his liability as a defaulter. The learned single Judge who dealt with the case specifically referred to Shambhoo Ram's case (1) and while taking notice of the observations of their Lordships that if the contest is "on any ground whatsoever except as to the matter of arithmetical calculation of the amount of rent due up-to-date or interest or costs, he cannot claim the benefit of sub-sec. (4)", he went on to hold as follows - "it, therefore, follows that the contest which has been referred to means the contest about the amount of rent. '' Similarly, the learned single Judge took notice of the pronouncement in Motiram's case (2) that "sec. 13 (4) affords protection to a tenant in those cases where he does not raise a contest, except as to arithmetical calculations about the amount of rent", but he drew the following inference therefore - "apart from any consideration of absurdity or hardship it is clear upon the language of sub-sec. (5) itself that it refers to suits contemplated by sub-sec. (4) and thus the contest should be with regard to the liability to pay rent and not in respect of any other ground set forth in the plaint i. e. under sec. 13 (1) (b) (h) for the eviction of the tenant. " It would thus appear that while at one place the learned Judge drew the conclusion that the contest referred to meant a "contest about the amount of rent", he proceeded further to hold that the contest, contemplated by sub-S. (4) should be with regard to "the liability to pay rent". So far as the earlier observation of the learned single Judge about the contest relating to the amount of rent is concerned, it could be said to fall in line with the decisions of this Court in Shambhooram vs. Mangalsingh (1), Motiram vs. Parmanand (2), Jagannathprasad vs. Surajlal (3) and Gorulal vs. Gopichand (4),but his other conclusion that the contest should be with regard to the liability to pay the rent is not at all justified by those judgments and appears to be, if I may say so with respect, directly in variance with those pronouncements. As the learned Judge has not given any reason for holding that the contest contemplated by sub-sec. (4) should be with regard to the liability to pay the rent, it is difficult for me to appreciate the circumstances or the reasoning which led him to that conclusion and persuaded him to give the defendant the benefit of sub-sec. (4) of sec. 13 even though he had contested his liability to pay the rent and not merely that there was an arithmetical error in the calculation of the rent, the interest or the costs. In view, however, of the several decisions of this Court to the contrary, including the two bench decisions in Shambhoo Ram Vs. Mangal Singh (1) and Motiram Vs. Parma Nand, it is not possible for me to follow the decision of the learned single Judge in Labhchand's case (6 ). The result therefore is that since, in the present case, defendant Halka Singh contested his liability to pay the rent and had also raised some other contests to which reference has been made earlier,he was not entitled to the benefit of sub-sec. (4) of sec. 13 of the Act and the learned Senior Civil Judge was undoubtedly in error in taking a contrary view in his judgments dated January 28, 1960 and August 16, 1961. Before leaving this aspect of the matter, reference may be made to the the remaining argument of Mr. Bhandari that the scheme of sec. 13 of the Act is that in all cases it is the duty of the court to determine, on the first day fixed for the hearing of the suit, the amount of rent due from the tenant and the interest etc. and to direct the tenant to pay the amount on or before a day fixed for the purpose, and that the court can proceed to a hearing of the suit within the meaning of sec. 13 (5) only if the tenant fails to make the payment in time. It would be sufficient to say that this argument is wholly untenable because of the provision in sub-sec. (5) of sec. 13 that if on the first day fixed for the hearing of the suit the tenant expresses his intention to contest the same, the court shall proceed with the hearing of the suit. The written statement in the present case was filed on April 25, 1958, in which the defendant unequivocally expressed his intention to contest the suit, and even the issues were framed on Jan. 8, 1959 on the various points which were in controversy between the parties. There was therefore no question whatsoever of the applicability of sub-sec. (4) of sec. 13. ;