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1981 Supreme(Raj) 46
High Court Of Rajasthan
Judgename : Dwarka Prasad
Jagannath - Appellant
Versus
Janiram - Respondent
Civil Second Appeal No. 348 of 1974
Decided On : 03/23/1981
Appearance :
M.M. Vyas, for the Appellant
N.N. Mathur, for the Respondents
The landlord's withdrawal of the deposited amount constituted a waiver of his right to take benefit of the ground of defaults in payment of rent.
Headnote:
RAJASTHAN PREMISES (CONTROL OF RENT AND EVICTION) ACT, 1950 - SECTION 13(4), 13(5), 13(7) - EVICTION SUIT - DEFAULT IN PAYMENT OF RENT - WAIVER OF OBJECTION - INTERPRETATION OF "FIRST DATE OF HEARING" - DETERMINATION OF AMOUNT PAYABLE BY TENANT - WITHDRAWAL OF DEPOSITED AMOUNT BY LANDLORD - EFFECT.
Fact of the Case:
In an eviction suit, the tenant deposited Rs. 500/- towards arrears of rent and interest on the date fixed for appearance in the summons. The trial court held that the tenant failed to deposit the arrears of rent on the first date of hearing and passed a decree for ejectment. The first appellate court upheld the decision.
Finding of the Court:
The High Court held that the expression "first date of hearing" in Section 13(4) of the Act refers to the date for which the summons were issued to the defendant for settlement of issues, not the date fixed for appearance in the summons. Since there was a dispute between the parties about the amount of rent payable, Sub-section (5) of Section 13 was attracted, and the trial court should have determined the amount payable by the tenant. The trial court erred in failing to perform its duty, and the tenant was not bound to make any deposit. However, the tenant deposited an amount that the landlord willingly withdrew without any demur or protest. The landlord's withdrawal of the deposited amount constituted a waiver of his right to take benefit of the ground of defaults in payment of rent.
Issues: 1. Whether the expression "first date of hearing" in Section 13(4) of the Act refers to the date fixed for appearance in the summons or the date for which the summons were issued to the defendant for settlement of issues? 2. Whether the trial court erred in failing to determine the amount payable by the tenant under Section 13(5) of the Act? 3. Whether the landlord's withdrawal of the deposited amount constituted a waiver of his right to take benefit of the ground of defaults in payment of rent?
Ratio Decidendi: 1. The expression "first date of hearing" in Section 13(4) of the Act refers to the date for which the summons were issued to the defendant for settlement of issues, not the date fixed for appearance in the summons. This interpretation is supported by a long series of decisions of the High Court. 2. The trial court erred in failing to determine the amount payable by the tenant under Section 13(5) of the Act. The provisions of Sub-section (5) are imperative in nature, and the court is bound to determine the amount once a dispute is brought to its notice about the amount of rent payable by the tenant. 3. The landlord's withdrawal of the deposited amount constituted a waiver of his right to take benefit of the ground of defaults in payment of rent. The landlord's conduct misled the tenant into believing that the amount deposited was sufficient to cover the arrears of rent and interest thereon. The landlord cannot now be allowed to take advantage of his own mistake.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree passed by the two courts below, and dismissed the plaintiff's suit for ejectment.
2. Thenecessary facts which have led to the aforesaid controversy may be mentioned here. The plaintiff landlord filed the suit for eviction on October 18, 1968, on three grounds, inter alia: --
(i) personal necessity of the landlord for the suit premises;
(ii) damage was caused to the premises by the tenant, and
(iii) the tenant had committed defaults in payment of rent.
3. The questions relating to reasonable and bona fide personal necessity of the landlord for the suit premises and damage to the premises by the tenant were decided against the plaintiff landlord by the trial Court and those questions were not contested by the plaintiff in the first appeal, nor any contest was raised in respect of those questions before me in this second appeal. So the question which survive is as to whether the tenant committed defaults in payment of rent. The trial Court held that as the tenant had not deposited the arrears of rent together with interest thereon, on the first date fixed for hearing of the suit, the defendant tenant could not take benefit of the provisions of Sub-sections (4) and (5) of Section 13 of the Act, as they stood at the relevant time. It was also held that the rent was in arrears for more than 6 months on the date of institution of the suit, as such the tenant was held to be a defaulter and a decree for ejectment was passed against him on that ground. The first appellate Court also took the same view and the plea of waiver, which was also advanced before him did not find favour with the first appellate Court.
4. Thefirst date fixed in the suit was December 19, 1968. On that day, Counsel for the defendant appeared, filed his Vakalatnama and sought an adjournment for filing the written statement. The next date fixed was January 16, 1969. On the last mentioned date, the defendant tenant filed his written statement and also filed two applications. In one of the applications it was stated that as there was a dispute regarding the rate and amount of rent, the Court should determine the amount payable to the landlord in respect of arrears of rent and interest thereon, so that the tenant may be able to deposit the amount. This application was obviously made under Sub-section (5) of Section 13 of the Act. The other application was made under Sub-section (4) of Section 13 of the Act, in which the defendant tenant stated that he was depositing a sum of Rs. 500/-towards arrears of rent and interest thereon and whatever amount the Court thought proper may be paid to the plaintiff out of the said deposit. On this application, the trial Court passed an order on January 16, 1969 itself directing that the amount of Rs. 500/-may be deposited. Thereupon the defendant-tenant proceeded to deposit the amount of Rs. 500/-. After some adjournments, the application under Section 13 (5) of the Act was considered by the trial Court on
