BERI, C. J. - (1.) MARTIN and Harris Private Limited is the tenant-defendant whose defence was struck off by the order of the learned Munsif, Jaipur City (West), by his order dated December 30, 1972, under sec. 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called "the Act" ). Feeling aggrieved by that order the tenant moved a revision-application before this Court. Kan Singh J. , who heard the matter, on examination of the decided cases came to the conclusion that there was a conflict in the reported decisions of this Court and he has, therefore referred two questions for the opinion of a larger Bench.
(2.) IN order to appreciate the back-ground, in which these two questions arise it will be relevant to recall the broad facts of the case. The tenant took on lease a portion of the premises called "khinduka Bhavan" situate in New Colony, Jaipur for three years, by means of a registered lease-deed dated August 1, 1963, on a monthly rent of Rs. 200/ -. Another portion of the same premises was taken on lease by the same tenant on June 1, 1966 at the rate of Rs. 180/- per month. The landlord's case, as disclosed in the plaint,is that the rent amounting to Rs. 1,200/- for the period beginning on November 1, 1970 and ending on April 30, 1971 of the portion taken on lease in the year 1963 had fallen in arrears and, therefore, he was entitled to evict the tenant. The landlord had impleaded the tenant company at Calcutta and also its office at Jaipur as two distinct defendants. On August 31, 1971, the first date of hearing, a copy of the plaint was given to the defendant-company with the Calcutta address. On September 15, 1971, the tenant filed the written statement denying that any rent had fallen in arrears and contended that because the landlord had refused to accept rent since August, 1969 the tenant was depositing rent under sec. 19-A of the Act for both the portions' of the premises in the Court and the landlord was not entitled to a decree for eviction. The landlord, however, moved an application under sec. 13 (6) of the Act praying that the tenant's defence against eviction be struck off. The tenant answered the application saying that the landlord wanted to enhance the rent; that he had refused to accept the cheque dated August 23, 1969 representing the rent which was sent to him; that the landlord refused to accept the rent for September 1969 which the tenant had sent by means of a money order in the sum of Rs. 426. 85 and, therefore, the tenant deposited the rent for August, September and October, 1969 in the Court under sec. 19-A of the Act and he thereafter also deposited the rent for the subsequent months in the Court and his defence was, as such, not liable to be struck off under sec. 13 (6) of the Act. The learned Munsif accepted the landlord's application on the ground that the tenant could not take advantage of the deposit of rent in the Court under sec. 19a of the Act because the tenant had not tendered each month's rent first to the landlord and had not on his refusal deposited the same in the court under sec. 19-A of the Act and therefore the tenant could not escape the consequences contemplated by sec. 13 (6) of the Act. Aggrieved by this order, the tenant came up in revision to this Court Kan Singh J. has now referred to a larger Bench the following two questions: " (1) Whether under sec. 19a of the Act it is necessary for the tenant every time before making a deposit of rent in court to tender the same to the landlord and to have his refusal or once the landlord has refused the tender of rent, then for every subsequent deposit in court the tenant will not be required to first tender the rent to the landlord and have it refused. In other words, which of the two cases, namely 1959 R. L. W. 81 or 1970 R. L. W. 315 lays down the correct law? (2) Whether even in a case where rent has been deposited in court under sec. 19-A of the Act the tenant is required to make a fresh deposit of the rent in court under sub-sec. (4 of sec. 13 of the Act on the first date of hearing or to raise a dispute about the payability of the rent on the first date of hearing. In other words, whether the case reported in 1971 Weekly Law Notes, Part-1, page 118 lays down the law correctly or requires any reconsideration?" First question - In order to answer this question, it will be proper to read sec. 19-A of the Act which was inserted in the Statute by the Rajasthan Act No. 12 of 1965 with effect from June 9, 1965. It reads, - "19 A-Deposit of rent by tenant - (1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. (2) Where the landlord does not accept any rent tendered by the tenant within the time referred to in sub-sec. (1) or where there is bonafide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the court and such deposit of rent shall be a full discharge of the tenant from the liability to pay rent to the landlord. We are called upon to interpret sub-sec. (2) of the aforesaid section. Kansingh, J. 's own inclination on the interpretation of this section is recorded in the following words: "sec. 19-A in my humble opinion was designed to afford an alternative to a tenant to pay the rent in court in order to avoid future disputes about his tendering and the landlord refusing to accept the rent and thereby incurring the consequences of a default. This section would not over-ride the provisions of sec. 13 of the Act and consequently clause (3) of sec. 13 of the Act will stand in tact. Apart from this sub-sec. (2) of sec. 19-A does not expressly use the word 'every time'. Therefore, if the tenant had already tendered rent to the landlord unmistakably by registered letter or a money order then unless the landlord himself indicates that he would hereafter be accepting rent the tenant would not be required to repeat the tender of the rent by money order or otherwise month by month before he would be entitled to deposit the rent in court. " The earlier view to which reference has been made in the question is reported in Baburam vs. Narayan Dass (l), wherein Dave, J. , as he then was, examined the provisions of sec. 13 (4) of the Act, as it stood prior to the amendment, and on the authority of Gauri Shanker Agarwal vs. Ganga Prasad (2) made the following significant observations: 'this document shows that an amount of Rs. 10/8/- was remitted by the appellant to the respondent but the money order was returned to the appellant since it was not accepted by the respondent. Sub-sec. (13) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, lays down that 'for the purpose of clause (a) of sub-sec. (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has remitted such amount to the landlord by postal money-order at his ordinary address'. The appellant having produced Ex. A. 2, a presumption arises in his favour that he had tendered the amount of Rs. 10/8,- as rent and it was for the respondent to rebut that the said money order did not reach him. There being no such evidence, it must be deemed that the money was tendered to the respondent. In the case of Gauri Shanker Agarwal vs. Ganga Prasad (2), it was observed that clause 13 of the Bihar House Kent Control Order (1942) protected a tenant who was in the arrears of rent from ejectment so long as he was willing to pay rent. It was further held that it was not the intention of the law that the tenant should be forced to make useless offer and send money to the landlord by money order which would without doubt be refused. The provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, are similar to the provisions of the law referred in the above case, In the view which was taken in the case cited above it would be difficult to hold that the appellant was a defaulter. " This case in fact was dealing with the interpretation of sec. 13 sub-sec. (3) of the Act and not sec. 19-A of the Act which came to be introduced, as already observed, in the year 1965. In this context, we might also refer to Jagdish Kumar vs. Roopchand (3), wherein Jagat Naranyan, J. , as he then was, without specifically referring the case of Baburam vs. Narayan Dass (11) made certain observations in the following words - "there was a decision of this Court that if the tenant sends rent by money order to the landlord and the latter refuses to accept it then the tenant need not send the rent again to him either by money order or tender it to him personally. It was to nullify the effect of that ruling that sec. 19-A was introduced in the Act. Clause (1) of it lays down that every tenant shall pay rent within the time fixed by contract or in the absence of such contract by the 15th day of the month next following the month for which it is payable. Clause (2) lays down that where the landlord does not accept any rent tendered by the tenant within the time referred to in sub-sec. (1) or where there is bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the court and such deposit of rent shall be a full discharge of the tenant from the liability to pay rent to the landlord. This clause is applicable where the rent is tendered to the landlord personally or by money order. If the landlord refuses to accept rent when it is tendered to him either personally or by money order, then it is the duty of the tenant to deposit the rent in court. " There are two points which this ease clearly brings out for our consideration. The first is the observation that "it was to nullify the effect of that ruling that sec. 19-A was introduced in the Act" We are unable to subscribe to this view in the context of the Statement of Objects and Reasons of Act 12 of 1965, which we shall notice little later. The second point that deserves notice is that in this case the tenant had deposited under sec. 13 (4) of the Act on the first day of hearing the entire arrears of rent as determined by the Court but the tenant defaulted in paying off rent for the subsequent months and, therefore, his defence was struck off. The learned Judge was not called upon to consider the provisions of sec. 19-A of the Act and, therefore, it will not be correct to say that there is any conflict between Baburam's case (l) and this case, as indicated in question No. 1. As a matter of fact, there is, however, a judgment of Bhargava, J. reported in Vishwanath Singh vs. Gopilal (4) which takes the view that the language of sec. 19 A (2) is plain and unambiguous and it means that "whether it be the first deposit or subsequent deposit, the condition precedent of tender and refusal by the landlord has to be satisfied otherwise it will not be regarded as a valid deposit so as to be a full discharge of the tenant from liability to pay rent to the landlord. " Bhargava, J. relied on two decisions of the Calcutta High Court, namely, Kabirraj Srinararayan Sarma vs. Baijnath Bhartia (5) and Manukchand Durgaprosad vs. Bulakidas Baheti (6) to which we shall presently advert There is thus a conflict between Baburam's case (l) and Vishwanathsingh's case (4) to the extent that it has bean held in Vishwanath Singh's case (4) that the tender of rent by the tenant should be repeated month after month. The object for the insertion of sec. 19-A, 19-B, 19-C and 19-D in the Act could be gathered by a reading of the Statement of Objects and Reasons and it will be proper to reproduce it so as to appreciate whether the observations of Jagat Narayan, J. in Jagdishkumar's case (3) were justified and to ascertain the mischief which these sections were intended to remedy - "the Rajasthan High Court has held that sub-sec. (4) of sec 13 of the Rajas-than Premises (Control of Rent and Eviction) Act, 1950, provided a last protection to the tenant in a suit for eviction on the sole ground of non-payment of rent and in which the tenant agrees not to contest the suit. The consequences have been aptly described in 1963 R. L. W. (Journal Part) (1) as: 'to Contest or Not to Contest, The Tenant's Torment. ' The result is that a landlord can, by bringing a composite suit or by pleading three defaults in a period of eighteen months, deprive the tenant of the protection provided in the aforesaid sub-section. The same High Court has further held that where there is no proceeding pending in a court for the recovery of possession of premises, the acceptance of rent in respect of the period of default in payment of rent by the landlord from the tenant does not operate as a waiver of such default. It has, therefore, been considered necessary to remedy the aforesaid mischief in the existing law and to provide for certain other matters with a view to ameliora-ting condition of tenants and to save them from unnecessary harassment. Hence the Bill. " (Emphasis is ours) It is clear that the amendments in the Act were made "with a view to ameliorating the condition of the tenants and to save them from unnecessary harassment. "
(3.) IN interpreting a statute such as this, in our opinion, the rules in Heydon's case deserve to be remembered. IN Caries on Statute Law, Seventh Edition, at page 96, it has been stated: "the most firmly established rules for construing an obscure enactment are those laid down by the Barons of Exchequer in Heydon's Case which have been continuously cited with approval and acted upon, and are as follows : 'that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered; (1) What was the common law before the making of the Act? (2) What was the mischief and defect for which the common law did not provide? (3) What remedy the Parliament hath resolved and appointed to cure the disease of the commonweal. (4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtile inventions and evasions for the continuance of the mischief and pro privato commodo and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico. ' These rules are still in full force and effect, with the addition that regard must now be had, not only to the common law, but also to prior legislation and to the judicial interpretation thereof. " The state of law prior to the Amendment Act of 1965 was such that it had no machinery to provide for the deposit of rent by an anxious tenant in court when a landlord declined to accept rent, presumably to fabricate a case of default to attain his coveted end, namely, a tenant's eviction. The legislature by amendment provided a machinery in sec. 19-A. The first subsection of sec. 19-A specifies the time when the rent is payable It provides that the contract shall be respected in regard to the time fixed thereby for the payment of rent but in the absence of a contract, rent is payable by a tenant by the fifteenth day of the month next following the month for which it is payable. Sub-sec. (2) envisages the situation where the landlord does not accept any rent tendered by the tenant within the time referred to in sub-sec. (1 ). Then the tenant may deposit such rent with the Court and such deposit of rent shall be a full discharge of the tenant from the liability to pay rent to the landlord. We are leaving out the other situation where a tenant is in a bonafide doubt as to the person or persons to whom the rent is payable, where also this step is permissible, because we are not concerned with a case of such a nature. Sub-sec. (3) lays down the procedure for making the payment and the contents of the application which is to accompany such a deposit in Court. Sub-sec. (4) provides for the court-fee on such an application and also that the application shall accompany the requisite postal stamps for sending a notice and a copy of the application under sub-sec. (5) to the landlord. Sub-sec. (5) provides that on such deposit of the rent, the Court shall send a notice of the deposit by registered post acknowledgment due and also send a copy or copies of the application to the landlord with an endorsement of the date of deposit; and a copy such notice shall be affixed on the notice board of the court. Sub sec. (6) provides that if an application is made for the withdrawal of any deposit of rent, the Court shall, if satisfied that the applicant is the person entitled to receive the rent deposited, order the amount of the rent to be paid to him and such payment shall be a full discharge from all liability of the tenant for the payment of rent. Then the explanation indicates the courts where such rent would be deposited. These provisions, as we read them, provide a machinery to immunise a tenant from being labelled as a defaulter if despite the tenants tender the landlord refuses to accept rent. The deposit of rent is notified to the landlord personally but is also published by its being fixed on the notice board. The landlord may, if he chooses, withdraw such rent. The payment to the Court by fiction of the law would mean payment to the landlord so far as the tenant's liability for rent is concerned. The short but interesting question is whether the tenant should first tender the rent each month to the landlord and, on his refusal to accept it, he should proceed to the Court to deposit the rent as is the view taken by Bhargava, J. in Vishwanath Singh's case (4) or whether we should prefer the view to which an inclination has been given by Kansingh J. in his order of reference? We are clearly of the opinion that a law which was introduced to ameliorate the lot of the tenants and to save them from harassment should not be interpreted to add to the tenant's troubles and tribulation by insisting that, month after month, he should tender rent to the landlord, obtain his refusal, and then make an application for the deposit of rent in Court and get it notified to the landlord. This would be a futile multiplication of steps which could not have been the intention of the law. The only conceivable virtue in such a procedure would be to ascertain the mood of the landlord at regular intervals, in the distant hope that he may become cooperative. The language employed in sec. 19-A (2) is, "any rent tendered by the tenant". If the legislature had intended that the tenant should tender each month's rent to the landlord and after obtaining his refusal deposit the refused rent in Court, there was no difficulty in saying so. The purpose set out in the statement of Objects and Reasons was of ameliorating the tenants' lot and it is difficult to hold that the Legislature intended this repetitive ritual to torment the tenant. We are prepared to hold that it is necessary on the first occasion to tender rent to the landlord and it is on his refusal that the tenant becomes entitled to deposit the rent in Court. For, if that was not so, a trouble-some tenant, instead of directly paying rent to the landlord might adopt the option of routing his rent through the Court and thereby put the landlord to the trouble and expense of withdrawing the rent from the Court. Such an intention of the legislature is inferable from the requirement of sec. 19-A (3) (d) which calls upon the tenant depositing the rent to state the reasons and circumstances which make him to adopt that course. According to the interpretation given by Bhar-gava J the tenant is called upon to perform the monthly ritual of offer-rejection before depositing the rent in Court. Such an interpretation would frustrate the object of ameliorating the lot of tenant. Technically speaking, when the tenant once offers the rent and the landlord refuses to accept it, that is, the first tender. Thereafter rent is deposited by the tenant in Court Under sub-sec. (5) a notice is sent to the landlord to receive the rent so deposited by the tenant. That is again an offer to the landlord, by the tenant, through the Court to receive the rent. Thus each deposit in Court and a notice thereof to the landlord would imply a tender enabling the landlord to ask the tenant to pay the rent directly. The landlord is thus given repeated options to ask for the rent directly, if he so wishes. The doctrine of tender came to be examined as early as 1845 in Hunter vs. Daniel (7 ). This doctrine was reiterated by Montague Smith in Forbas vs. Baboo Luchmeeput Singh (8), and later on in Venkayarayanum vs. Subadrayamma (9) and it is to the following effect - "the practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the evidence, it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money. " Dave J. as he then was, followed it and propounded his view in Baburam's case (l ). An equitable construction of the doctrine of tender does not justify repeated tenders on the part of a tenant when his first tender has been refused, and he can reasonably proceed on the assumption that the second and the subsequent tenders will meet with no different fate unless advised to the contrary. ;