KOTHARI, J. - (1.) THESE two cross appeals u/s. 100 CPC is a usual chequered history of protracted litigation between landlord and tenant. A pair of two shops known as `jota' shop which has no wall in between but two separate entrance gates situated at Ramganj Bazar, Station Road, Alwar was given on rent of Rs. 110/- per month by the plaintiff Prakash Chand Goyal to the defendant, firm M/s. Pohap Singh Kishan Sahai. The suit was filed for eviction of the said shop on the ground of personal bona fide necessity and default in payment of rent. The said suit was decreed by the trial Court on 27. 1. 1984. The first appeal against the said judgment and decree of the trial Court was disposed of on 20. 7. 1985 by framing an additional issue No. 7 on the issue of partial eviction and the matter was remanded back under Order 41 Rule 5 CPC to the trial Court for return of its finding on the said additional issue. The trial Court vide its order dated 31. 3. 1986, after taking additional evidence on the said additional issue No. 7 of partial eviction, found that the suit could be decreed by directing partial eviction of the suit premises namely; shop in question and the trial court held that the said `jota' shop could be divided in half and one portion towards the stair case could be kept by the landlord and the other portion by the tenant. After finding of issue No. 7 was returned by the trial Court vide order dated 31. 3. 1986, the first appeal of the tenant namely; appeal No. 56/88 along with cross objections of the landlord No. 57/88 came to be decided by the first Appellate Court of Addl. District & Sessions Judge No. 2, Alwar on 17. 5. 1990 and the tenant's appeal was rejected vide the operative part of the said order dated 17. 5. 1990.
(2.) HOWEVER, since the findings on the issue of default issue No. 4 and partial eviction issue No. 7 were given in favour of the tenant the mention in the operative part of the said order dated 17. 5. 1990 that the appeal of the appellant is rejected as also the cross objections of the landlord were rejected was apparently not correct. The matter was thus brought before this Court by way of second appeal at the instance of tenant and the said second appeal No. 124/90 came to be allowed by this Court on 8. 8. 1990 with a direction to the Appellate Court to amend the operative part of the judgment and consequent amendment in the decree. After the said remand by High Court the first Appellate Court again disposed of the said appeal vide order dated 8. 1. 1993 partly allowing the appeal of the tenant and rejected the cross objections of the landlord. It is against this judgment dated 8. 1. 1993 that both the parties have come up in respective second appeals before this Court. Both these appeals were heard at length and are being disposed of by this common judgment. Ground of Default As far as issue No. 4 relating to default, is concerned, Mr. B. L. Mandhana, learned counsel appearing for the landlord empathetically submitted that the findings of the trial Court in the original judgment dated 27. 1. 1984 as well as the judgment of the first Appellate Court dated 17. 5. 1990 which according to him are the only effective judgments of the two Courts below while the others were upon remand and for carrying out the necessary amendment or for deciding an additional issue, the findings of both the courts on the said issue in favour of tenant are given in a slip shod manner and both the Courts below have not arrived at a finding of fact based on relevant material or after holding proper inquiry in the matter that there was no default on the part of tenant in payment of arrears of rent as determined by the Court u/s. 13 (3) of the Act or even the rent agreed to be paid at Rs. 110/- per month and by referring to the various provisions of Section 13 of the Rajasthan Premises (Control of Rent & Eviction Act, 1950 he submitted that even if the landlord did not move any application for striking out the defence of the tenant on the ground of default as envisaged under Section 13 (5) of the said Act, the tenant is not absolved from its liability or responsibility to show that he as made the deposit or paid the rent as required by sub-section (4) of Section 13 if he intends to take benefit of Section 13 (6) of the Act. It would be useful to reproduce the relevant sub-sections (3) to (8) of Section 13 of the said Act: " 13. Eviction of tenants- (1) Notwithstanding. . . . . . . . . 2 . . . . . . . . . . . . . . . . . . . . (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 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 of 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 up to 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 the 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 subsequent to the period up to 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 a 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 any relief under this sub-section, if having obtained such benefit or benefit 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 a. 05. at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit. " As against this Mr. R. K. Mathur, learned counsel appearing for the tenant submitted that this contention cannot be allowed to be raised at this stage in the second appeal on the part of the landlord because the findings of both the courts below are in favour of the tenant to the effect that there was no default in the payment of rent and in the absence of any application filed on behalf of the landlord for striking out the defence, the burden of proof does not shift upon the tenant to show that he has made deposit of the arrears of rent as agreed between the parties or provisionally determined by the Court under Section 13 (3) of the Act. He relied upon the Judgment of Hon'ble the Supreme Court in case of Shiv Dutt Jadiya vs. Ganga Devi (AIR 2002 SC 1163) = (RLW 2002 (3) SC 440 ). It would be useful to extract para Nos. 5, 6, 7 and 9 of the said judgment. " 5. A perusal of Section 13 goes to show that failure of the tenant to pay or tender the rent due from him for a period of six months provides a ground for his eviction. On a suit for such relief being instituted by landlord, the tenant must deposit in Court or pay to the landlord the arrears of rent on the first date of hearing or within 15 days from the date of determination by the Court of provisional amount, or within the extended time, and thereafter continue to deposit in Court or pay to the landlord month by month the monthly rent falling due for the subsequent period, as contemplated by sub-section (3) and sub- section (4) of Section 13. Failure to make deposit or payment consistently with sub-section (4) may entail defence against eviction being struck out. However, compliance with sub- section (4) confers on the tenant an immunity from eviction on the ground specified in clause (a) of sub-section (1 ). Such immunity is one time benefit given t the tenant. If the tenant commits a default for a second time, having earned once earlier an immunity from eviction within the meaning of sub-section (6), then, on a subsequent suit being filed, the tenant cannot once again escape the decree for eviction in spite of compliance with the provisions of sub-section (4) (6) On a suit for eviction being instituted, compliance with sub-section (4) by the tenant as contemplated by Section 13 is in "court". The legislature has not chosen to use words "trial Court" in the framing of Section 13. Ordinarily, an appeal is a continuation of suit. The tenant is bound to comply with provisions of sub-section (4) if the claim for eviction on having been denied by the trial Court is pursued in appeal by the landlord. In spite of a decree for eviction having been refused by the trial Court, the appellate Court may still, in an appeal preferred by the landlord, pass a decree for eviction. On the date of the passing of the decree, the appellate Court shall have to see, in view of the obligation cast on it by sub-section (6), whether the tenant had made deposit or payment, as required by sub-section 4 Any view to the contrary may result in creating an incongruous or inequitable situation. If it was to be held that on decision by the trial Court, the obligation of the tenant to pay or tender, the rent, in the manner prescribed by sub- section (4) comes to an end, then, although the landlord is still pursuing his claim for eviction before the appellate Court and the decision of appeal may take its own time, the need on the part of the tenant to pay or tender the rent to the landlord or deposit the same in the Court shall stand dispensed with. We do not think that Section 13 contemplates such a situation. The object behind enacting Section 13 is that pendency of litigation should not be used by tenant as an excuse for suspending his obligation to regularly pay the rent and the landlord should not be compelled to file separate proceedings for recovery of rent falling due during the pendency of already filed eviction proceedings. (7) In the case before us, the issue of the tenant having committed a default and hence having incurred liability for eviction was being pursued by the landlord in appeal. The question whether the tenant's defence against eviction was liable to be struck out or not, was an issue open before the appellate Court and was being clearly pressed by the landlord for decision. The tenant, in order to escape the rigour of his defence against eviction being struck out and to avail the benefit of relief against eviction under sub-section (6), or, to be more accurate, to see such relief as was allowed to him by the trial Court being upheld by the appellate Court, shall have to satisfy the appellate Court also of his compliance with sub-section (4) up to the date of judgment by the appellate Court. The tenant was, therefore, continuing to deposit the rent during the pendency of the appeal. There was no occasion for the landlord to hold the tenant a defaulter for the period 5. 11. 1983 to 28. 7. 1984 and file a second suit for eviction in view of the tenant continuing to deposit the rent in the appeal preferred by the landlord against the decree in the first suit. The tenant was not required to pay the same rent twice over personally to the landlord or to tender the same in one of the modes prescribed by Section 19-A. The question of payment, remittance or deposit of rent by tenant in one of the modes provided by Section 19-A could have arisen if there was no suit or appeal pending before the landlord and the tenant and therein the tenant was not required to deposit, or could not have made deposit of, rent in Court. The tenant, in the case before us, was not in default for the period 5. 11. 1983 to 28. 7. 1984 and no cause of action arose to the landlord for filing the second suit for eviction. The suit was entirely misconceived. The First Appellate Court deciding appeal in the second suit was, therefore, right in reversing the decree of the trial Court and directing the second suit to be dismissed. The High Court has clearly erred in law in upholding availability of ground under Section 13 (1) (a) of the Act to the landlord in the second suit. (9) Before parting, we would like to sound a note of caution. During the course of hearing a decision by Rajasthan High Court in Kamruddin vs. Wahid Ali (1987 (1) RLR 290) was brought to our notice wherein the view taken by the High Court is that compliance with Section 13 of the Act need not be made during the pendency of appeal. We have taken a view to the contrary. To obviate the unforeseen difficulty which the tenants are likely to face in those matters which may be pending in appeal we would like to clarify that before striking out the defence under sub-section (5) or denying the benefit of relief against eviction under sub-section (6), for failure, to comply with sub-section (4), of Section 13 of the Act during the pendency of appeal, the appellate Court shall afford the tenant a reasonable opportunity for compliance on this decision coming to or being brought to its notice. However, this judgment shall not be a ground for re-opening any matter which stands already concluded. " From the perusal of the above quoted part of the judgment of Hon'ble the Supreme Court it is clear that the obligation of the tenant to continuously pay the rent as per Section 13 (4) of the Act is not dispensed with even if the landlord fails to apply to the court for striking out defence of the tenant under Sub- section (5) of Section 13 of the Act, because even after striking out defence, if it was to be, Sub-section (5) requires that the court shall proceed with the hearing of the suit. Naturally the findings of the Court would depend upon the material and evidence before it. Sub-section (6) gives the protection against a decree for eviction on the ground of default only if the tenant makes a deposit or payment as required under sub-section 4 Therefore, even if his defence is not struck out under sub-section (5), his duty to continuously pay the rent and show it to the satisfaction of the Court that he has done so is independent of any application of the landlord for striking out the defence under sub-section 5 This proposition of law is further supported by the judgment of Hon'ble the Supreme Court in the case of J. L. Varandani vs. Ashalata Mukherjee (1990) 4 SCC 40), wherein the Hon'ble Supreme Court held while dealing with a case arising under West Bengal Premises Tenancy Act, 1956 that "the mere fact that the court had not passed an order striking of the defence is contemplated under Section 17 (3) because of the tenant's failure to deposit within the time specified in the order passed under Section 17 (2) and 17 (2-A) does not necessarily lead to a presumption that the time was extended. On the other hand, section 17 (2-B) which is a mandatory provision lays down that no application for extension of time for the deposit or payment of any amount under clause (a) of sub-section (2-A) shall be entertained unless it is made before the expiry of the time specified in sub-section (1 ). Therefore, in the absence of such application it cannot be contended that the Court is deemed to have condoned the delay. . . . "since such a deposit is the condition precedent for seeking relief under Section 17 (4) the appellant who has not fulfilled the same cannot claim the said relief. "
(3.) SECTION 13 (4) of the Act has been held to be mandatory by the Hon'ble Supreme Court in case of Nasiruddin and others vs. Sita Ram Agarwal (AIR 2003 Sc 1543) = (RLW 2003 (2) SC 315) wherein the Hon'ble Supreme Court reversing the judgment of Rajasthan High Court reported in 1997 (1) RLR 686 held that the word "shall" used in SECTION 13 (4) of the Act makes it mandatory provision and it is true that the Rajasthan Act does not expressly exclude the application of the Limitation Act, but section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant. Sub-section (4) of SECTION 13 itself provides for limitation of a specific period within the deposit has to be made, which cannot be exceeding three months as extended by the Court. Secondly, the deposit by the tenant within 15 days is not an application within the meaning of section 5 of Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of SECTION 5 can not be extended where the default takes place in complying with an order under sub- section (4) of the Act. Learned counsel for the respondent-tenant Mr. R. K. Mathur has relied upon the decisions of this Court in case of B. B. Bhalla vs. Rameshwar Kishore Badhwar (2001 (2) WLC (Raj.) 490) = (RLW 2001 (2) Raj. 1194); Phool Chand & Anr. vs. Dr. Gulab Chand (1993 (3) WLC (Raj.) 189); and Radha Kishan vs. Lrs. of Gulshan Behari (2001 (5) WLC (Raj.) 375) = (RLW 2003 (1) Raj. 393) and submitted that the burden of proof lies on the plaintiff-Landlord to prove the default on the part of tenant and negative burden cannot be cast upon the landlord to prove that he was not defaulter and even if the defence is struck out u/s. 13 (5) of the Act, the plaintiff is not absolved from proving the default. There is no dispute on the legal principle that the initial burden of proof lies upon the landlord to show that there was default in payment of rent on the part of tenant, however, such burden of proof shifts once the landlord alleges and prima facie shows that there was default in payment of rent. In the present case, not only the landlord has raised the issue of default and shown it before the trial court that there was default in payment of rent but had also filed cross objections on the issue of default before the first Appellate Court. This issue was also raised on behalf of landlord while arguing the present second appeal and learned counsel for the landlord Mr. Mandhana also shown in the Court a list of various payments of rent made by the tenant and pointed out that there was no regular payments and defaults and occurred in payment of rent in accordance with Section 13 (3) read with Section 13 (4) of the Act. However, this was objected to by the learned counsel for the tenant Mr. Mathur. Therefore, in view of the law laid down by Hon'ble Supreme Court as aforesaid, the burden of proof in the present case shifted on the tenant once the initial burden of showing the default in payment of rent was discharged by the landlord. Such burden of proof shifted on the tenant has not been discharged by the tenant in the present case, therefore, the aforesaid cases cited by Mr. Mathur are of no help to the tenant in the present case. Mr. Mathur also relied upon the judgments of this Court in case of Kewal vs. Sesmal (1981 RLW 77) and full Bench decision of this Court in case of Raghunath Singh vs. (Minor) Vikram Sharma & Ors. (1996 (1) WLC (Raj.) 398) = (RLW 1996 (1) Raj. 237) in support of the contention that the payment of rent month by month as envisaged u/s. 13 (4) of the Act did not apply during the pendency of the appeal once the trial Court had held that the tenant was not in default. With great respects, these judgments are of no avail and should be deemed to have been impliedly over-ruled in view of the Apex Court decision on case of Shiv Dutt Jadiya's case (supra) in which it has been clearly laid down that the requirement to pay the rent regularly continues even during the pendency in the first Appellate Court as well as this Court in second appeal. ;