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CASE NO.:

Appeal (civil) 4993 of 1997

PETITIONER:

SHIV DUTT JADIYA

RESPONDENT:

GANGA DEVI

DATE OF JUDGMENT: 20/02/2002

BENCH:

R.C. LAHOTI & RUMA PAL

JUDGMENT:

JUDGMENT

2002 (1) SCR 1167

The Judgment of the Court was delivered by

This is a tenant's appeal, putting in issue the judgment and decree of the

High Court, directing the tenant to be evicted from the suit accommodation

- a shop.

The facts necessary for decision in this appeal are not in controversy. The

suit shop is owned by the respondent and is held by the tenant-appellant on

a monthly rent of Rs. 22. Earlier, there was a default in payment of rent

by the tenant, for which, on the ground available under Clause (a) of sub-

section (1) Section 13 of Rajasthan Premises (Control of Rent and Eviction)

Act, 1950 (hereinafter 'the Act' for short), the landlord-respondent had

filed a suit for recovery of rent and for eviction. Let this suit be

referred to as 'first suit'. During the pendency of this suit, the tenant

complied with sub-section (4) of Section 13 by making the deposit of rent,

as contemplated therein. On 14.11.1983, the Trial Court refused to pass a

decree for eviction against the tenant, holding that although the tenant

had committed a default in payment of rent before the institution of suit,

but, in view of his having complied with the provisions of sub-section (4)

of Section 13, he was entitled to benefit of relief against eviction. The

landlord preferred an appeal. We have perused the contents of memo of

appeal made available for our perusal by the learned counsel for the

respondent. It shows that before the Appellate Court, the landlord had

continued to press for a decree for eviction being passed against the

tenant under Section 13(l)(a) of the Act. The grievance revised by the

landlord was that the tenant had not strictly complied with the provisions

of sub-section (4) and, therefore, the Trial Court should have directed the

defence against eviction to be struck out under sub-section (5) and then

passed a decree for eviction, holding the tenant not entitled to the

benefit of sub-section (6). The occasion for deciding this appeal on merits

did not arise inasmuch as, on 12.04.1993, the landlord did not press for

the decision of appeal on merits and, instead, sought for withdrawal of the

appeal, which was permitted by the Appellate Court.

On 21.08.1984, much before the withdrawal of the appeal as abovestated, the

landlord had filed a second suit against the tenant, praying for a decree

of eviction, alleging that tenant had committed a second default by not

paying or tendering the rent to the landlord for the period between 5th

November, 1983 and 28th July, 1984. Admittedly the period of second default

alleged as providing cause of action to the landlord in the second suit for

eviction, was covered by the period during which the first appeal preferred

by the appellant against the decree of the Trial Court passed in the first

suit was pending. It is also admitted that during the pendency of that

appeal, the tenant had continued to deposit the rent in the Court month by

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month, as contemplated by sub-section (4) of Section 13 for the entire

period during which the appeal was pending. The Trial Court in the second

suit, formed an opinion that after the decision by the Trial Court in the

first suit, the tenant ought to have paid or tendered rent to the landlord

in accordance with Section 19-A of the Act and any payment by way of

deposit made by the tenant in the Court during the pendency of the appeal

against the decree in first suit could not come to his rescue, as it was

not a payment or tender, as contemplated by Section 19-A of the Act. The

Trial Court, therefore, directed the second suit for eviction to be decreed

by holding the tenant guilty of second default within the meaning of

proviso to sub-section (6) of Section 13. The decree was reversed in appeal

preferred by the tenant. However, the High Court has, by its impugned

judgment and decree, set aside the decree of the Appellate Court and

restored the decree passed by the Trial Court.

the question arising for decision in this appeal is : whether the tenant

can be said to have committed default in paying or tendering the rent to

the landlord for the period 05.11.1983 to 28.07.1984 even though he had

deposited such rent in the Court during the pendency of the landlord's

appeal against the decree passed in the first suit? Answer to this question

would depend on answer to another question - whether the amount deposited

by the tenant, during the pendency of the landlord's appeal against decree

in the first suit, can be held to be a valid payment of tender?

The relevant parts of Section 13 are as under : "13. Eviction of tenants :-

(1) Notwithstanding anything contained in any law or contract, no Court

shall pas any decrees or make any order, in favour of a landlord, whether

in execution of a decree or otherwise, evicting the tenant (xxx) so long as

he is ready and willing to pay rent therefore 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 six months.

(b) to (h)......

(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 as 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 to 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 up to 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

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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) [xxx] 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 make 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."

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 to 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 inspite of

compliance with the provisions of sub-section (4). 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. Inspite 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.

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 the struck out or not, was an issue open before the

Appellate Court and was being clearly pressed by the landlord for decision.

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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)

upto 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 05.11.1983 to 28.07.1984 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 between 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 05.11.1983 to 28.07.1984 and no cause of action arose to the

landlord for filing the second suit for eviction. The suit was entirely

mis-conceived. 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(l)(a) of the

Act to the landlord in the second suit. The appeal is, therefore, allowed.

The judgment and decree of the High Court is set aside. The suit for

eviction filed by the landlord is directed to be dismissed. Costs to be

bome as incurred.

Before parting, we would like to sound a note of caution. During the course

of hearing a decision by Rajasthan High Court in Kamruddin v. Wahid Ali,

(1987) 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.