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2017 Supreme(Raj) 212
IN THE HIGH COURT OF RAJASTHAN AT JODHPUR BENCH
Pankaj Bhandari, J.
Kanhaiya Lal and Others – Appellants
Versus
Gajendra and Others – Respondents
Civil Second Appeal No. 161 of 2016
Decided On : 27-01-2017
For the Appellant : O.P. Mehta.
For the Respondents: S.L. Jain and Vishal Sharma.
Important Point—Deposit of rent in court cannot be considered as a valid deposit.
Headnote:Rent and Eviction—Default in payment of rent—Since tenant has agreed to pay rent in accordance with Hindi Calendar, he was bound to pay rent within time fixed by contract—Any payment made by him which was contrary to contract, was not a valid tender and contention of appellant that appellant has tendered amount of rent, cannot be accepted—Similarly, deposit of rent in court cannot be considered as a valid deposit because same was also not deposited in terms of contract—Both courts below have not erred in decreeing suit of the plaintiff/respondent on the ground of default—Appeal dismissed.
Result—Appeal dismissed.
Pankaj Bhandari, J.
1. The appellants have preferred this second appeal aggrieved by order dated 09.08.2012 passed by Civil Judge (Junior Division) Merta City, vide which the court has decreed the suit of the plaintiffs-respondents and order dated 10.05.2016 passed by Additional District Judge, Merta, whereby the appellate court partly allowed the appeal filed by the appellants, but upheld the decree of eviction on the ground of default.
2. It is contended by counsel for the appellants that the suit was filed on the ground of default and material alteration. The court below decreed the suit only on the ground of default and the appellate court has also upheld the decree on the ground of the defendant committing default. It is contended by counsel for the appellants that in the suit, rent was claimed from Magh Badi 1 Samwat 2053 and the period of default in the suit was mentioned as ten months sixteen days. The suit was filed on 01.12.1997. It is further contended that the appellant-defendant sent the rent by money order for the period from February, 1997 to May, 1997, but the same was refused by the landlord, and therefore, the appellant deposited the rent in court on 04.09.1997 and the same being valid tender and deposit, the decree passed by the court below is bad in law.
3. It is further contended by counsel for the appellants that since the rent was deposited prior to filing of the suit, there was no default and both the courts below have committed error in law in decreeing the suit on the ground of default. Counsel for the appellants has also drawn my attention towards Ex. 20, which is money order receipt, wherein it is mentioned that the rent for the months of February, 1997 to May, 1997 Rs. 2000/- is being sent. There is a note of refusal on the said receipt. Ex. 21 is the receipt, vide which the amount was sent by money order.
4. It is also contended by counsel for the appellants that since the appellant has tendered the rent, there was no default and therefore, the courts below have erred in striking out the defence of the defendant. It is further contended that after the landlord refused to accept the rent, the same was deposited under Section 19A of the Rent Control Act on 04.09.1997. Thus, six months' rent was not due on the date of filing of the suit. It is also contended that the plaintiff-respondent was required to prove the factum of default of six months and merely because, the defence was struck off, the court could not have decreed the suit without there being evidence of default.
5. In support of his contentions, counsel for the appellants has placed reliance on the following judgments:-
"(a) Fakir Mohd. (Dead) by LRs. v. Sita Ram, 2002 WLC (SC) Civil 96.
(b) Smt. Manak Bai & Others v. Kalyan Bux, (143), RLR 1989 (2) 704.
(c) Kanhaiya Lal v. Sampat Raj Kothari, 2000 (1) WLC (Raj.) 508.
(d) Mohanlal v. Lakhekhan, 1972 WLN Part I 753.
(e) Kalyan Mal v. Shakuntala Devi (151), RLW 1988 (2) 584.
(f) B.B. Bhalla v. Rameshwar Kishore Badhwar, 2001 DNJ (Raj.) 298."
6. Counsel for the respondents have opposed the second appeal. Their contention is that no substantial question of law is made out in this case. The rent was to be deposited according to the Hindi Calendar, and as the same was not tendered properly, the same was not accepted. It is further contended that since the defendant has deposited the rent in court without following the procedure prescribed under Section 19A, the same cannot be termed as a valid deposit, as the appellant has not sought the bank account number before depositing the rent. It is further contended that the tenant has not deposited the rent after determination by the court and has committed defaults on various occasions. Therefore, the striking out of defence of the tenant was in accordance with law and since the defence of the appellant was struck off, the courts below have rightly decreed the suit.
7. Counsel for the respondents have placed reliance on the following judgments:-
"(a) Bhan
