GANESH NARAIN Vs. RANCHOR DAS

JUDGEMENT

(1.) THIS is a revision petition under Sec. 115, Civil Procedure Code by the defendant directed against the appellate order of the learned District Judge, Jodhpur dated March 31, 1978 passed in Civil Appeal, Order) No. 22 of 1978.

(2.) NON-petitioner No. 1 is the plaintiff, Landlord) in the trial court. He instituted a suit for arrears of rent amounting to Rs. 4800/- and ejectment from the house described in para No. 1 of the plaint against the petitioner, tenant-defendant No. 1) and non-petitioner No. 2, tenant defendant No. 2) in the court of Civil Judge, Jodhpur, on August 21, 1976 which was subsequently transferred to the Court of the Additional Civil Judge, Jodhpur. It was alleged by the plaintiff that the defendants were defaulters so far as payment of rent was concerned. The ejectment was sought on the ground of default under Sec. 13 (1) (a) of the Rajasthan Premises, Control of Rent and Eviction) Act, No. XVII of 1950) which will hereinafter be referred to as 'the Act'. Defendant No. 1-petitioner appeared before the trial court on October 16, 1976 after service. Defendant No 2 did not appear in spite of service and, therefore, ex parte proceedings were taken against him vide order sheet dated October 16, 1976 An application under Sec. 13 (3) of the Act was moved on February 14, 1977 on behalf of the plaintiff in the trial court with a prayer that the amount may be determined in accordance with Sec. 13 (3) of the Act. It was mentioned in the application that the suit was based on the ground of default in payment of rent and that the defendant despite taking several adjournments has not filed the written statement and the suit pertains to the rent which has fallen in arrears from February 2, 1974 though the defendant in the previous suit has admitted that rent is due from September, 1973. This application was resisted by the defendant-petitioner vide reply dated March 25, 1977 on various grounds. It was stated in the reply that there is no provision of law under which such an application could be made and as such, it deserves to be dismissed. It was further mentioned that determination can only be made after filing the written statement and not before that. Besides this, it was also mentioned in the reply that the plaintiff has not placed any material on record for the determination of the rent. The learned Additional Civil Judge vide his order dated January 30, 1978 allowed the application filed by the plaintiff non-petitioner No. 1 and determined the amount of rent and interest to the tune of Rs. 8,228/ and directed that this amount should be deposited within 15 days from the date of the order A further direction was given that subsequent rent of each month should be paid by 15th of the next following month. In this connection, it may be noticed here that the learned Additional Civil Judge considered two questions while deciding the application of the plaintiff-non- petitioner No. 1 under Sec. 13 (3) of the Act, namely,, i) whether it is established from the record that the plaintiff is the landlord of the defendant No. 1 up to that date and, ii) how much rent and interest are due up to that date to the plaintiff from the defendant The learned Additional Civil Judge found on the basis of the certified copy of the written statement filed by the plaintiff in Civil Original Case No. 26 of 1975, Plaintiff Ranchod Das vs. Shri Ganesh Narain and another that prima facie relationship of landlord and tenant between the plaintiff and defendant No. 1 is established. As regards the second question, ha found that @ Rs. 160/- per month, means profits amounting to Rs. 7400/ and interest @ 6% amounting to Rs 828/-, total Rs. 8,228/- were due to the plaintiff from the defendants.

(3.) PRESENT sub sec. , 3) of sec. 13 was substituted for the sub-secs, 3),, 4) and, 5) as they existed before the Rajasthan Amending Act No XIV of 1976. A bare reading of the present sub sec. , 3) and previous sub-sec. , 4) as it existed prior to the Amending Act No. XIV of 1976 shows that it has been substituted and renumbered for the previous sub-sec. , 4 ). The material change which deserves to be noticed is that in the old sub sec. , 4) of sec. 13, it has been specifically provided that if on or before the date so fixed for payment, the tenant deposits in court the aggregate of the amount so determined, the suit shall be dismissed and the sum so deposited shall be paid to the landlord whereas sec. 13 (3) of the Act inter alia provides that after hearing the parties and on the basis of the material on record, provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant and sub-sec. , 4) of sec. 13 lays down that the tenant shall deposit in court or pay to the landlord the amount determined under sub-sec. , 3) within 15 days from the date of such determination or within such further time not exceeding three months as may from time to time be extended by the court. It envisages a further direction for payment of rent month by month becoming due after the order of the determination. Original sub sec. , 6) has been renumbered as sub-sec. , 5) by sec. 8 (2) of the Rajasthan Amending Ordinance No. XXVI of 1975 which now stands replaced by the Rajasthan Amending Act - No XIV of 1976. The consequence of not depositing or paying the amount which has been referred to in sub-sec. , 4) on the date or within time specified in that sub-section is provided in the sub-sec. , 5) and that is that the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the case. The present sec. 13, 3) empowers both the landlord and the tenant to make an application for the determination of the amount of rent to be deposited in court or paid to the landlord by the tenant. When the landlord makes an application for the determination of the rent and interest thereon, the tenant is ultimately to be benefited and thereby he obtains one more opportunity to prevent eviction on the ground of default alone. Under the present sec, 13 (3), a duty has been cast on the court whether there is an application or not, to start with determining the arrears of rent and the interest. In order to examine the argument of Mr. J. P. Joshi, learned counsel for the petitioner, the words used in sec. 13 (3) "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 the writ ten-statement and shall be before the framing of the issues" cannot be lost sight of. According to sec. 13 (3), if the suit for eviction is based on the ground mentioned in clause, a) of sub sec. , 1) of sec. 13, it is necessary for the court to determine the amount of rent and interest on the first date of hearing or within the period mentioned therein Issues are framed as contemplated by O. XIV r. 1 on the material proposition of fact or law which are affirmed by the one party and denied by the other The averment of the plaintiff that the defendant is his tenant is a material proposition of fact which has been denied by the defendant and therefore this will form a subject matter of one of the issues which is to be framed by the trial court on the basis of the pleadings of the parties. This issue is to be decided after trial that is when the parties have led their evidence in support of their respective averments. For the determination of the amount of rent, and interest under Sec 13 (3) of the Act, the only condition contemplated is that the 'suit for eviction should be based on the ground / set forth in clause, a) of sub sec. , 1) with or without any or the other grounds referred to in that sub section. ' Once this averment in the plaint is there that the tenant has neither paid nor tendered the amount of rent due from him for six months, in my opinion, sec, 13 (3) of the Act will come into play and it is incumbent on the court to determine the amount of rent and interest either on the first date of hearing or on any other date which the court may consider fit to fix in this behalf which of course shall not be more than three months after filing the written statement and is to be before the framing of the issues. The manner and mode of the determination of the amounts have been laid down in this sub-section. It has been provided that '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 and that the amount of rent is to be calculated at the rate of rent at which it was last paid or was pay-able in respect of the period for which the tenant may have made default inclusive of the period subsequent thereto up to the end of the month previous to that in which the determination is made. Further interest on the amount of rent so calculated at the rate of 6% per annum from the date when such amount became payable upto the date of determination is also to be calculated. A proviso has been added to sec. 13 (3) with which I am not concerned for the purpose of resolving the controversy before me. I want to emphasise that the determination of the amount of rent to be deposited in court or paid to the landlord by the tenant is provisional in as much as the words used are 'provisionally determine'. Thus the determination under sec. 13 (3) is 'temporary' or 'for the time being'. This determination is to be made as provided in sec. 13 (3) after hearing the parties and on the basis of the material which is on record. In other words, the material that may be available on record either on the first date of hearing or any other date which may be fixed in this behalf but not later than three months after the filing of the written statement and before the framing of the issues. The words in sec, 13 (3) regarding the point of time for the determination of the amount of rent and interest are first date of hearing or any other date which is not to be more than three months after the filing of the written statement and before the framing of the issues. It may he stated that the words 'first hearing' of the suit have been used in O. X, rr. 1 & 2 and O. XIII r. 1 and O. XIV r. 1, C. P. C. According to O. X, r. 1, 'at the first hearing of the suit', an ascertainment whether assertions are denied or admitted can be made from each party by the court. O. X, r. 2 provides that 'at the first hearing of the suit' or at any subsequent hearing, oral examination of party or companion of party may be made by the court and the court may, if it thinks fit; put such questions in the course of examination as may be suggested by either party. O. XIII, r. 1 inter alia lays down that the documentary evidence of every description which is in possession or power of the parties or on which they intend to rely and which has not already been produced in court should be produced "at the first hearing of the suit". O. XIV, r. 1 (5) provides that 'at the first hearing of the suit', the court after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact and law the parties are at variance and shall thereupon proceed to frame issues on which the right decision of the case appears to depend'. It is therefore clear that the first hearing of the suit would clearly extend atleast upto the period of the first hearing referred to in O. XIII, r. 1 C. P. C as the determination under Sec. 13 (3) of the Act is to be made not beyond three months from the date of the filing of the written statement and before the settlement of the issues, and as such, no enquiry much less summary enquiry is contemplated for that purpose. As soon as, on the basis of the averments in the plaint, the court is satisfied that the suit for eviction is based on the ground set forth in clause, a) of sub sec. , 1) of sec. 13 of the Act, the court is required to determine the amount of rent and interest in accordance with the provisions of sec. 13 (3) of the Act Therefore, before making an order for the determination of the amount of rent and interest thereon for a direction to deposit in court or for paying to the landlord, it is not necessary that the court should first determine the question of relationship of landlord and tenant between the parties by holding an enquiry into the matter. As stated above, that determination is to be made merely on the basis of the material which has been placed on record up to that stage by the parties. The determination so made is provisional in character and it does not affect the final rights of the parties. Learned counsel for the plaintiff-non-petitioner strongly relied on a decision Omprakash Gupta vs. Rattan Singh, 5 ). It was argued on behalf of the appellant before their Lordships that the authorities under the Delhi Rent Control Act, No. XIX of 1958) bad no jurisdiction to entertain the proceedings inasmuch as it was denied that there was any relationship of landlord and tenant between the parties and consequently the provisions of sec. 15 (3) of the Delhi Act should not be applied in the absence of a finding that he was a tenant in respect of the premises rented out to him. Sec. 15 (1) and Sec. 15 (7) of the Delhi Rent Control Act run as under, - "15. When a tenant can get the benefit of pretection against eviction -, 1 ). In every proceeding for the recovery of possession of any premises on the ground specified in clause, 1) of the proviso to sub-section, 1) of section 14, the Controller shall after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the months previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. " In this connection, their Lordships observed as follows, - ". . . Now, proceedings under S. 15 are primarily meant for the benefit of the tenant, and the section authorises the Controller after giving the parties an opportunity of being heard, to make an order directing the tenant to pay the amount on calculation to be due to the landlord or to deposit it with the Controller, within one month of the date of the order. Such an order can be passed by the Controller for the benefit of the tenant, only if the Controller decides that the person against whom the proceedings for eviction had been initiated was in 'the position of a tenant. Thus, any order passed by the Controller, either under S. 15 or other sections of the Act, assumes that the Controller has the jurisdiction to make the order, i. e , to determine the issue of relationship In thi3 case, when the Controller made the order for deposit of the arrears of rent due, under S. 15, 1), and on default of that made the order under Sub S. , 7) of S. 15, striking out the defence, the Controller must be deemed to have decided that the appellant was a tenant Such a decision may not be res-judi-cata in a regular suit in which a similar issue may directly arise for decision. Hence, any orders made by a Controller under the Act proceed on the assumption that he has the necessary power to do so under the provisions of the Act, which apply and which are meant to Control rents and evictions of tenants. An order under S. 15 (1) is meant primarily for the protection and benefit of the tenant. If the appellant took his stand upon the plea that he was not a tenant he should have simply denied the relationship and walked out of the proceedings. . . . . . . " Sec. 13 of the Madhya Pradesh Accommodation', Control Act, No XLI of 1961) came up for consideration before a Division Bench of the Madhya Pradesh High Court in Inderlal Balkiram's case, 6 ). Sec. 13 (1) of the Madhya Pradesh Act runs as under: - "13, 1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in S. 12, the tenant shall, within one month of the service of the writ or summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, 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 the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate. " Dixit C. J. observed as follows, - 'once a suit for ejectment, on the grounds referred to in Sec 12, is instituted, the provisions of sub sec, 1) of See. 13 operate against the defendant and the Court acquires jurisdiction to deal with any claim or question arising under any of the provisions of Sec. 13, no matter whether the relationship of landlord and tenant is admitted or denied by the defendant. " Para 7 of the decision may also be usefully quoted,- "the object and purpose of Sec. 13 also point to the conclusion that a finding by the court that the defendant is a tenant is not necessary for the operation of sec. 13 (1) or for the exercise of the powers conferred on the Court by the various sub-sections of Sec. 13. The object of Sec. 13 (1) is clearly to prevent a tenant from stopping payment of rent the moment a suit for ejectment is filed against him. It is also to relieve the landlord of the necessity of filing separate suits for rent for the period covered by the pendency of his suit for eviction. Section 13 also gives relief to the defendant who makes the deposit or payment as required by sub-section, 1) of snb-section, 2 ). No decree for eviction can be passed against a defendant who makes the payment or deposit as required by sec. 13. These objects would be altogether defeated if it is held that Sec. 13 becomes operative in a suit for eviction only after it is adjudicated that the defendant sued is a tenant. It is now very common for the defendants in ejectment suits to deny the plaintiff landlord's title, and such a denial is generally the main issue in the suit. Therefore, to say that Sec. 13 can come into play only after it is determined by the Court that the defendant is a tenant is to hold virtually that Sec. 13 becomes operative in a suit for eviction when the suit itself is about to be decided and to subject the plaintiff-landlord to harassment and pecuniary loss which Sec. 13 intends to safeguard. " It was further observed in para 8 of the decision, - "that in any suit for eviction on any of the grounds mentioned in Sec 12. Sec. 13 becomes applicable even before the determination of the question whether the defendant is a tenant, is clinehed by sub section, 4) and, 6) of Section 13 which provide for the defence against eviction being struck out. The defence against eviction open to a defendant under the M. P. Accommodation Control Act, 1961, very often includes the denial of the landlord's title. If the defence against ejectment can be gone into for determining the question whether the defendant is a tenant for the purpose of the applicability of Section 13, 1), thea there would be no meaning left in the provision contained in sub-section, 6) of Sec. 13 that on failure to deposit or pay any amount required by the section, the defence against eviction may be struck off Sub-section, 6) unmistakebly shows that for the applicability of Sec- 13 it is not necessary first to determine that there is a relationship of landlord and tenant between the plaintiff and the defendant. "