BHARGAVA, J. - (1.) THE petitioner in this case is a tenant who had rented shop No. 2 in Saraogi Building situated inside Kotegate in Bikaner City.
(2.) NON-petitioner is the landlord. The monthly rent of the shop is Rs. 14/-excluding electricity and other charges. Prior to the institution of the present suit on 22nd January, 1947, two more suits were filed by the landlord for rent and eviction. The first suit was dismissed because no notice to terminate the tenancy was served upon the tenant. In the second suit the tenant deposited all the arrears of rent etc. in compliance of the provisions of section 13a of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (hereinafter called the Act) which had come into force during the pendency of those proceedings. The present suit for eviction is based on the grounds mentioned in sec. 13 (1) (a), (c) (d) and (f) of the Act. It is alleged that the tenant had made default in payment of rent from 16-5-1966 to 2-1-1967. 14th February, 1967 was the date for settlement of issues and the summonses upon the defendants were served, upon their refusal, by affixing it on their house. On 23rd March, 1967, defendant Vishwanath Singh was represented by his counsel Shri Lakhpat Raj and on the next date i. e. , 25th April, 1967 the same counsel represents the other defendant Darshan Singh. But on none of these dates arrears of rent with interest as provided under sec. 13 (4) of the Act were deposited. On 3rd July, 1967, written statement was filed on behalf of the defendants, in paragraph 12 of which it was stated that they had committed no default in payment of rent. In fact they had first offered the rent to the plaintiff and upon his refusal a money order was sent to him, but that too was refused and so the defendants were compelled to deposit the amount in the court in the month of August 1966 under sec. 19a of the Act. They also submitted receipts regarding the deposits made under sec. 18a of the Act. It was stated that the plaintiff had not deliberately with-drawn the amount of rent deposited under sec. 19a of the Act. No effective proceedings took place in the suit till 16th April 1963 on which date the plaintiff submitted an application requesting the court to strike out the defence against eviction because the defendants had neither deposited the amount of arrears nor had paid monthly rent for the succeeding period. The defendants contested this application and their plea was that they had deposited all the amount of rent due in the court under sec. 19a, in miscellaneous case No. 18 of 1966. It also appears that by way of precaution the tenant also deposited Rs. 425/-, in the court in which the suit was pending on 18-5-1968 and also continued to pay monthly rent till 2nd April, 1969. However both the courts below having found that neither the deposit of rent by the tenant in mis-cellanous case No. 18 of 1966 under sec. 19a nor the deposit made in the suit could be of any avail to the tenant because the arrears of rent were not paid on the first date of hearing and thereafter also the tenant did not pay rent month by month. Therefore, the trial court ordered the defence to be struck out. On appeal the learned District Judge also confirmed the same order. It is contended on behalf of the petitioners that the defence could not be struck out for non-compliance of sec. 13 (4) because prior to the institution of the suit they had not committed default in payment of rent for six months. Sub-sec. 4 of the sec. 13 comes into play only when the suit for eviction is based on the ground set forth in clause (a) of sub-sec (1) of sec. 13 with or without any other grounds. It is pointed out that an 9-7-66 one month's rent plus other charges amounting to Rs. 19 77 was sent by money order to the plaintiff, but he refused to take it and so for the purpose of clause (a) of sub-sec. (1) of sec. 13 that amount should be deemed to have been tendered to the landlord. Besides this on 4-81966 an amount of Rs. 35/-which included two months rent and other charges which the landlord had refused to accept was deposited in the court under sec. 19a of the Act, Notice of this deposit was also given to the landlord which was duly served upon him. Similarly a deposit of Rs. 18/- on 26-8-1966, of Rs. 30/- on 25-11-1966, of Rs. 36/- on 20-1-1967 and other deposits were made. On 22nd September, 1966 the court passed an order that the landlord will be entitled to withdraw the amounts already deposited and the tenant should continue to deposit the rent for subsequent period. It is contended that the tenant was discharged from the liability to pay rent to the landlord and as such on the date of the suit he could not be a defaulter in payment of six months rent so as to entitle the landlord to found a suit for eviction on that ground. Learned counsel for the non-petitioner says that the deposits made under sec. 19a by the tenant are not valid deposits firstly because such rent is not proved to have been tendered to the landlord before the deposit and secondly it has not been made within the prescribed period as provided in sec. 19b of the Act which requires the deposit to be made within 15 days from the date referred to in sec. l9a (1 ). It is argued that even if the tenant be found to have not committed a default in payment of rent for six months on the date of the suit still it was his duty to pay rent month by month after the institution of the suit as provided in sec. 13 (4 ). It is also argued that as no dispute as to the amount of rent payable was raised by the tenant the court was not bound to determine the rent in accordance with sub sec. (5) of sec. 13 of the Act. Therefore, the point for determination is whether it was incumbent upon the defendants to comply with the provision of sec. 13 (4 ). It is apparent that sub-sec. (4) and (5)of sec. 13 came into play only when the suit for eviction is based on the ground set forth in clause (a) of sub-sec. [1] of sec. 13 i. e. where the tenant had neither paid nor tendered the amount of rent due from him for 6 months. Before the amendment of this sub-sec. by Rajasthan Act No. 12 of 1965 there was a conflict of decision in this Court whether the protection given under this sub-sec. could be availed of by a tenant in a composite suit i. e. a suit based apart from the ground of default in payment of rent on other ground also. But by the amendment the legislature has given recognition to the view that the tenant can avail of the benefit provided under sub-sec. [4] of sec. 13 in composite suits also and now the provision is very clear because it says that "in a suit for eviction on the ground set forth in clause (a) of sub-sec. (1) with or without any of the other grounds referred to in that sub*sec. " It, therefore, follows that for the application of sub-sec. (4) one of the grounds for eviction must be the default in payment of six months rent. If ground of default does not subsist, the tenant cannot be penalised for non-compliance of sub-sec. (4) of sec. 13 of the Act. It was urged by Mr. Mundra for the non-petitioner that mere allegation in the plaint that the tenant has neither paid nor tendered the amount of rent due from him for six months is enough to attract the application of sub-sec. (4) and if a tenant does not deposit the arrears of rent on the first date of hearing or makes a default in payment of rent month by month, his defence is liable to struck out. In my opinion it cannot be so. A landlord cannot be permitted to defeat the clear provisions of law by making false allegations in the plaint. If in a suit for eviction on the ground set forth in clause (a) of sub-sec (l) of sec. 13, a tenant takes the plea that he has not committed such defaults then the court cannot strike out his defence on failure to deposit the arrears of rent on the first date of hearing or on default in payment of rent of subsequent months unless the question of his having committed defaults is first determined. Unless that is done it cannot be said that the suit is based on the ground set forth in clause (a) of sub-sec. (1) of sec. 13 simply on the basis of the allegations in the plaint. The tenant's plea that he has not committed defaults in payment of six months rent prior to the suit goes to the root of the matter i. e. , the maintainability of the suit on that ground. The objection by the tenant is not to be taken as raising a dispute within the meaning of section 13 (5 ). Sub-section (5) can have application only in such suits which are based on the ground set forth in clause (a) of sub-section (1) of section 13. So on the aforesaid plea of the tenant the court is not to determine the amount of rent payable by the tenant in accordance with sub-sec. (5) of sec. 13, but it has to determine the question whether the suit is maintainable on the ground set forth in clause (a) of sub-sec. (1) of sec. 13. In case the court comes to the conclusion that the allegation made in the plaint is correct and the tenant is really a defaulter in payment of six months rent then automatically sub-sec. (4) of sec. 13 would come into play and the tenant would have to suffer the consequences for its non-compliance. If on the other hand the court comes to a different conclusion then the suit for eviction shall fail and no question of determination of rent under sub-sec. (5) of sec. 13 would arise. In this connection I may refer to the following judgment of the Supreme Court in Kaluram Onkarmal vs. Vaidyanath Gorain. (l ). In that case their Lordships were dealing with the scope of sec. 17 and 21 of the West Bengal Premises Tenancy Act, 1956 which though not exactly but to a large extent correspond to sec. 13 (4) and sec. 19a of the Act. There the question was whether the deposit of rent made by a tenant under sec. 21 after the institution of the suit for eviction can be held to be a payment to the landlord. In the course of the judgment their Lordships observed that: "it is also clear that if a tenant has been depositing the rent validly and properly under sec. 21 a suit against him under sec. 13 (1) (i) cannot be filed. Sec. 13 (l) (i) authorises the landlord to claim eviction of his tenant on the ground that he has made a default in the payment of rent as described by it. But such a default cannot be attributed to a tenant who has been depositing the rent with the Controller properly and validly under sec. 21. Such a valid payment amounts to payment of rent by the tenant to the landlord under sec. 22 (3), and so a tenant who has been making these deposits cannot be sued under sec. 13 (1) (i)". In the present ease, therefore, the real point which should have been first determined was this whether the deposit of rent made by the tenant under sec. 19a could be regarded as valid payment to the landlord. Only the deposit made before the institution of the suit had to be taken into consideration to decide that question because after the institution of the suit the tenant is required to make payments as provided in sec. (4) and not under sec. 19a as held by the Supreme Court in the case cited above. It has been shown that the following deposits were made by the tenant under sec. 19a before the institution of the suit: Rs. 35/- on 5-8-1966, Rs. 18/- on 36-8-1966, Rs. 18/- on 29-9-66 and Rs. 36/- on 25-11-1966. The provisions Sec. 19a so far as they are relevant are as follows: Section 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. (3) The deposit shall be accompanied by an application by the tenant containing the following particulars, namely: (a) the accommodation for which the rent is deposited with a description sufficient for identifying the premises. (b) the period for which the rent is deposited; (c) the name and address of the landlord or the person or persons claiming to be entitled to such rent; (d) the reasons and circumstances for which the application for depositing the rens is made. Section 19b - Time for deposit and effect of deposit made within time - No rent deposited under sec. 19a shall be considered to have been validly deposited under that section, unless the deposit is made within fifteen days of the time referred to in sub-sec. 1 of that section for payment of the rent; and the deposit made within the time aforesaid shall constitute payment of rent, to the landlord, as if the amount deposited had been validly tendered. The contention of the learned counsel for the non-petitioner is that the condition precedent for making a valid deposit is; (1) that the amount of rent should have been first tendered to the landlord and if he has not accepted then alone a tenant can make a deposit. Without making a tender the tenant is not entitled to make a deposit under sec. 19a; (2) that the deposit should be made within 15 days of the time referred to in sub-sec. 1 of sec. 19a. If these two conditions are not satisfied then the deposit cannot be regarded as a payment to the landlord. Sub-sec. 1 of sec. 19a speaks of the time within which the rent is to be paid. If there is a contract it is to be paid according to it. If there is no contract then by the 15th day of the month next falling the month for which it is payable. Then comes sub-sec. 2 which is relevant in this case. It permits a tenant to deposit the rent in the court under two conditions; (1) where the Landlord does not accept rent tendered by the tenant within the time referred to in sub-sec. 1 or (2) where there is a bonafide doubt as to the person or persons to whom the rent is payable. The learned counsel relies on the first condition and argues that the wordings of the section are very clear and it is not open to the tenant to make a deposit of rent without first tendering it to the landlord.
(3.) IN my opinion the language of sub-sec. 2 is plain and unambiguous and the words 'such rent' occurring in sub-sec. (2) refer to any rent in the first part of sub-sec. (2) which is tendered by the tenant and has not been accepted by the landlord. 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 the liability to pay rent to the landlord. I am fortified in my view by the two decisions of the Calcutta High Court in Kabiraj Srinarayan Sarma vs. Baijnath Bhartia (2) and Manikchand Durgaprosad & Bros. vs. Bulakidas Baheti (3 ). IN both these cases provision of see. 21 of the West Bengal Premises Tenancy Act, 1956 which is almost similar to the provisions of sec. 19a of the Act, came up for consideration and it was held in Kabiraj's case (2) that: The proviso to sec. 21 (2) of the West Bengal Premises Tenancy Act, 1956 shows that in the case of deposits of rent for successive months during any continuous period it is not necessary for the tenant to make another affidavit in support of his application for deposit before the Rent Controller if the reasons and circumstances which led to the first deposit continue to be the same. This specific mention dispensing with the filing of an affidavit in the case of subsequent deposits show that all other requirements and formalities involved in making a deposit should be the same in the case of a first deposit. Besides, the language of sec. 21 (1) puts the matter beyond all doubts. If; says where the landlord does not accept any rent tendered by the tenant within the time referred to in Sec 4 the tenant may deposit such rent with the Rent Controller in the prescribed manner. The words 'such rent' towards the latter part of this subsection obviously refer to 'any rent' in the first part and must obviously mean rent for every month. Every deposit must, therefore, be preceded by a proper tender and a refusal on the part of the landlord to accept the tender. Unless the deposits are valid and in conformity with sec. 21 of the Act, the deposits cannot cure the defaults for the respective months. Where the tenant deposited rent before the Rent Controller beginning from December 1957 upto October 1958 without tendering them before to the landlord, held all deposits were invalid since they were made in contravention of sec. 21 and the tenant was guilty of four defaults so that he was not entitled to the protection afforded by sec. 17 (4 ). and in Manickchands case (3) that: "it is only when the deposit is made in the prescribed manner, and also in the circumstances specified in S. 21 that the deposit is a valid deposit and can be treated as a deposit of rent. A deposit is permitted only under two circumstances, first where the landlord does not accept any rent tendered by the tenant within the time referred to in S. 4 and secondly where there is a bona fide doubt as to the person or persons to whom rent is payable. These are condition precedent which must be satisfied for a deposit of rent to be valid. Therefore, in a case where the tenant deposited amounts representing rents into Court without first tendering them to the landlord, it was held that there having been no refusal on the part of the landlord to receive rents, the deposits were invalid and of no effect, so much so, the tenant must be held to have committed default in payment of rents. " Learned counsel for the petitioners however, has invited my attention to a full Bench decision of the Allahabad High Court in Mohd. Bashir vs. Azizul Qadar (4), but that case is clearly distinguishable because in that case the Court was concerned with sec. 7 (c) (2) of U. P. (Temporary) Control of Rent and Eviction act (No. 3 of 1947 ). Sec. 7 (C) (1) and (2) of the U. P. Act were as under : - "sec. 7c (1) When a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which becomes due in respect of such accommodation unless the landlord in the meantime signifies by notice in writing to the tenant his willingness to accept. "sec. 7c (2 ). Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in sub-sec. (4) in respect of any accommodation, the tenant may similarly deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent court, or by settlement between the parties, continue to deposit in like manner, the rent that may subsequently become due in respect of such building. " It was held that in a case where a bonafide doubt has arisen about the title of the person claiming the rent, the question of tender could not arise. It was pointed out that provision of sub-sec. (1) and (2) of the U. P. Act deal with two situations and in the second situation no tender can be made when there is a doubt as to who is entitled to receive the rent. This case has, therefore, no application in the present case. In the present case there is no dispute about the persons to whom the rent was to be paid and so the condition precedent of making a tender had to be complied with before the deposit was made. The petitioners made an application under sec. 19a on 3-8-1966. In paragraph 3 it is stated that in the first instance they themselves asked the landlord to take the rent and also sent message but he did not take it. Then they sent a money order which he refused. So two months rent i. e. from 16-5-1966 to 19-7-66 amounting to Rs. 28/- along with electricity charges and meter rent of Rs. 7/- was being deposited. So this application clearly mentions at least for this deposit of Rs. 35/- that the amount was tendered. , but he refused to accept it. However, the lower courts did not consider the case from that point of view and there is no finding on the point as to whether it was a valid deposit. Moreover, the landlord has denied that the rent was tendered to him before it was deposited So before deciding the landlord's application for striking out the defence the court had to determine whether the tenant before the institution of the suit had committed defaults in payment of six months rent and for that purpose the court had to go into the question as to whether the deposits made by the tenant under sec. 19a were valid or not. The result, therefore, is that the revision is allowed, the order of the lower court in striking out the defences is set aside and the case is sent back to the lower court to decide the application in the light of the observations made above. In the circumstances of the case the parties shall bear their own costs of this revision application. . ;