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1972 Supreme(Raj) 166
Rajasthan High Court
Jain, J.
Mohanlal - Appellant
Versus
Lakhekhan - Respondents
S.B. Civil Regular Second Appeal No. 715 of 1971
Decided On : October 05, 1972
S.K. Mal Lodha, for Appellant; P.C. Mathur, for Respondent
Headnote:Rent Control—Premises (Control of Rent and Eviction) Act, Sec. 13(6)—Striking out defence —Effect—Plaintiff still has to prove grounds for eviction—Defendant can cross examine plaintiffs witness and address court.
Sec. 13(4) in my opinion is an additional protection given to a tenant who has been sued for eviction on the basis of a default. He is given another opportunity to deposit or pay the amount on the first day of hearing or within the time allowed by the sub-section. He is also required to deposit the amount of rent for the subsequent months. If he deposits or pays the amount, he is protected under sub-sec. 7 of sec. 13. If he fails to deposit, sec. 13(6) empowers the court to strike out his defence against eviction, but the suit does not end there. The requirement of the sub-section is that the court shall proceed with the hearing of the suit. It means that the court will proceed to hear all the defences raised by the tenant outside the Act and to ascertain if any of the grounds contained in cls. (a) to (1) exists making a tenant liable for eviction. I am unable to appreciate the position that if the tenants defence is struck out against eviction, the allegations of the plaintiff will be assumed to be true and he will be entitled to a decree without proof of any of the conditions laid down in cls. (a) to (1). The defendant is not definitely reduced to position worse than thai when the case proceeds ex parte. The plaintiff can only succeed in view of the mandate contained in sec. 13(1) when he satisfies the court that the tenant has made himself liable for one of the reasons mentioned in that section.
Held = Though the defendant is not permitted after his defence is struck out to lead evidence in support of his own averments, he has a right to break the case of the plaintiff by cross-examination. If the striking out of the defence means that the defendant shall not be heard to say anything, then he is also not entitled to address the court and if he cannot address the court and he is allowed to stand only as an idle spectator to see a decree being passed against him, his right to appeal shall stand nullified, or at any rate will remain an empty formality. In this view of the matter, the tenant is entitled to cross-examine the plaintiff and his witnesses who are produced by him in support of his allegations regarding the existence of grounds incurring the defendants liability for eviction. (Paras 16 & 23)
2. There is a building popularly known as Lakhekhan building situate in Jodhpur inside Siwanchi Gate. Respondent Lakhekhan is the owner of this building. The suit premises is a shop in this building. Appellant Mohanlal has been a tenant in the shop at the rent of Rs. 15/- per month. The respondent served a notice of eviction under Sec. 106 of the Transfer of Property Act terminating the tenancy of the appellant. The tenant did not vacate the suit shop. Respondent-plaintiff therefore instituted the civil suit No. 49/62 in the court of Munsif on 4-7-1967. He claimed eviction of the tenant on three grounds : (1) That the defendant neither paid nor tendered rent from Bhadwa Sud 1 Samwat 2021 corresponding to 8-9-1964, (11) that the defendant made certain material alterations in the suit shop without the plaintiffs consent and (iii) that the shop was required for the plaintiffs son Wali Khan and his requirement was reasonable and bona fide. Lakhekhan accordingly prayed for the eviction of the tenant from the suit shop; a decree of Rs. 590.25 as arrears of rent; mesne profits at the rate of Rs. 30/-per month for use and occupation of the shop from the date of the suit; interest on the above sums at the rate of the 6% per annum and the costs of the suit.
3. The defendant-tenant admitted the tenancy and having paid rent upto Bhadwa Sud 1 Samwat 2021. It was, however, alleged by him that he was not at all a defaulter. He sent the rent by money order, but it was not accepted by the landlord. He also denied having made any alterations in the suit shop. He also refuted the contention of the landlord that the shop was required for his son Wali Khan. He also alleged that the plaintiff had been pressing him to increase the rent to Rs. 50/- per month.
4. 12-9-1967 was the first date of hearing on which the defendant put in appearance. He made an application on that date to determine the rent due and to fix up a date for depositing the said amount in the court. The case was fixed on 29-9-67 for the plaintiff to file his reply to this application. The Munsif was then transferred. His successor in office by his order dated 20-10-1967 ordered the arrears of rent and interest to be deposited in the court upto 20-11-1967. The defendant then deposited Rs. 783/- on 16-11-1967. The break up of this amount is as follows—
Rent for the period—
(i) From Bhadwa Sud 2 Samwat 2021 to Pos Sud 2 Samwat 2024 Rs. 615.00
(ii) Costs of the suit Rs. 122.50
(iii) Interest on arrears of rent Rs. 45.50
Total Rs. 783.00
The court proceeded with the hearing of the suit and framed the following three issues on 6-1-1963—
(1) Whether the plaintiff required the suit shop for himself bona fide and reasonably?
(2) Whether the defendant has made material alterations and is liable to be evicted?
(3) Whether the plaintiff is entitled to recover Rs. 30/- per month as mesne profits for use and occupation of the shop?
5. While the trial of the suit was in progress, plaintiff moved an application under sec. 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) on 8-11-1968 asking the court to strike out the defence of the defendant against eviction as he failed to comply with the requirement of sec. 13(4) of the Act. This application was opposed by the defendant by a written reply dated 22-11-1968. The learned trial Judge, after hearing the parties, allowed the application and the defendants defence against eviction was struck out by his order dated 11th January, 1960. This order was challenged in appeal, but without success. The order was also challenged in revision but it was found to be correct and accordingly maintained. (vide Mohanlal vs. Lakhekhan 1969 Weekly Law Notes 370).
6. The learned Munsif continued the trial of the
