VERY IMPORTANT POINT
A tenant cannot be paid to have committed (second) default in paying or tendering the rent to the landlord if he had deposited such rent in the Court during the pendency of the landlord s appeal against the decree passed in the first suit.

Headnote:(i) Rajasthan Premises (Control of Rent & Eviction) Act, 1950-Section 13(1)(a) and Proviso to Section 13(6)-Eviction petition on ground of second default while appeal against first default pending-Tenant depositing rent in Court during the pendency of appeal against first default-Whether the tenant can be said to have committed (second) default in paying or tendering the rent to the landlord as contemplated by Section 19-A of the Act? (No)-Appeal allowed.
       Held : 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 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 05.11.1983 to 08.07.1984 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(1)(a) of the Act to the landlord in the second suit. (Paras 7 & 8)
       Held consequently : 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 borne as incurred. (Para 9)
       (ii) Rajasthan Premises (Control of Rent & Eviction) Act, 1950-Section 13-Eviction petition on grounds of non-payment-Appeal against Trial Court s order-Whether compliance with Section 13 of the Act need not be made during pendency of appeal? (It should be made)-1987(1) RLR 290 overruled and directions issued for future.
       Held : 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. (Para 10)

JUDGMENT

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.

2. 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(1)(a) of the Act. The grievance raised 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.

3. 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 the 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 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.

4. The question arising for decision in this appeal is: whether the tenant can be said to have committed default in paying o

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2002 Supreme(SC) 249

VERY IMPORTANT POINTA tenant cannot be paid to have committed (second) default in paying or tendering the rent to the landlord if he had deposited such rent in the Court during the pendency of the landlord s appeal against the decree passed in the first suit.

Cases Referred (1)

VERY IMPORTANT POINT
A tenant cannot be paid to have committed (second) default in paying or tendering the rent to the landlord if he had deposited such rent in the Court during the pendency of the landlord s appeal against the decree passed in the first suit.