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Rajasthan High Court
Jain, J.
Rajendra Kumar - Appellant
Versus
Jamna Das - Respondents
S.B. Civil Revision No. 480 of 1973
Decided On : January 15, 1975
From the pleadings it is difficult for me to hold that the default was made one of the grounds for eviction. The allegation in para No 2 which has been stressed upon only speaks of the non-payment of rent beyond 31.12.67. The plaintiff has claimed relief in the sum of Ha 231/- as arrears of rent from 1-1-68 to 31-7-68. The quit notice was served on the tenant on 23-4-68 on which date the tenant could not have been termed a defaulter within the meaning of sec. 13(1)(a) of the Act.
From the perusal of the paragraphs referred to above it is crystal clear that the ground of eviction stated by the plaintiff is contained in para No 4 and it is only the personal necessity. The defendant wanted to pay the rent and on his refusal to take the rent, the money orders were sent but the plaintiff did not accept them as well.
There is no manner of doubt that the plaintiffs suit was also for the recovery of rent from 1.1.68 to 31-7-68 as per allegations contained in para 2 and 7 of the plaint. The suit was, therefore, definitely for non-payment of rent as well. A plaintiff coming to the court with a specific ground cannot rely on facts which are alleged or understood by the defendant, and the case which has not been pleaded by the plaintiff cannot be allowed to be proved by the plaintiff.
The liability to interest and costs very much depend upon the correctness of the plaintiffs allegation. By no stretch of imagination this issue can be read as an issue disclosing the case of the eviction to be based on default. If the case of the plaintiff had been on the basis of default the proper issue would have been in terms of the requirement of sec. 13(l)(a) referred to above.
The requirement of sec 13(4) has been held to be mandatory. It means that if the case of the plaintiff is based on default as contained in sec 13(d)(a) and the tenant wants to avail of the protection available under sec. 18(a), he must deposit rent with interest on the first date of hearing.
Violation of the provisions of sec. 13(4) means a penalty as provided u/s. 13(6) of the Act. The fundamental principle of construction is that when a statute creates an offence or imposes a penalty the law must be construed strictly and for that matter the pleadings of the parties must also be construed strictly. I am clear in my mind that the plaintiffs suit is based only on the ground of personal necessity and not on the basis of default as contemplated by sec. 13(1)(a) of the Act. By striking out the defence against eviction the learned courts below have exercised jurisdiction which did not vest in them. (Paras 9, 10, 11, 12, 14, 16 and 17)
2. Non-petitioner Jamnadas instituted a suit on 22-8-1968 against the tenant Rajendra Kumar for ejectment and for Rs. 231/- as arrears of rent. He also claimed damages pendente lite and till the date the possession was delivered to the plaintiff at the rate of Rs. 33/- per month. The case of the plaintiff was that the defendant was the tenant vide rent-note dated 22-10-1960 of a shop facing south situated in Tripolia Bazar, Jaipur of the plaintiff at a monthly rent of Rs. 33/-. The plaintiff served a quit notice on 18-4-1968 determining the tenancy and calling upon the tenant to surrender possession within one month from the date of the receipt of the notice. The ground averred in the notice was that the landlord required the shop for his personal necessity. It was further alleged that the defendant had not paid any rent after 31-12-1967 and as such Rs. 231/- were claimed by way of rent from 1-1-1968 to 31-7-1968.
3. The defendant resisted the suit. He pleaded that the plaintiff did not require the shop bona fide and in fact it was on his part a pressure to increase rent. As regards the non-payment of rent it was contended by the defendant tenant that after 31-12-67 the landlord did not accept the rent so much so that he remitted the rent for four months on 21-5-1968 by M. O. No. 2565 but it was refused. According to him another M.O. No. 2317 for six months rent was sent to the landlord on 8-7-1968 but it was likewise refused.
4. The learned trial Judge framed five issues on 12-3 1969. On 4-12-1968 the tenant applied to the court for depositing rent and interest under sec. 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, (hereinafter referred to as the Act). It is common ground that the rent for the period from 1-1-1968 to 31-12-1968 was accepted by the landlord in the court on 20-12-1968. By another application dated 26 8-1969 the tenant deposited rent for seven months from 1-1-1969 to 31-7-1969. This is also not in dispute that the defendant appeared for the first time in the court in pursuance of the summons on 17-10-1968.
5. On 17-3-1972 on behalf of the plaintiff Jamnadas an application was submit-ed saying that the defendant-tenant had not deposited rent and interest under sec. 13(4) of the Act on the first date of hearing i.e. on 17-10-1968. It was prayed in that application that the defendant tenants defence against eviction be struck out u/sec. 13(6) of the Act. This application was opposed by the tenant. In the written reply submitted on 9-5-1972 the tenant contended that the plaintiffs suit is not based on the ground of default and as such deposit under sec. 13(4) of the Act was not called for and therefore the question of striking out the defence against eviction does not arise. In the alternative, it was submitted that since the plaintiff-landlord accepted the rent and interest for a period of 12 months on 20-12-1968, the default, if any, was waived by the plaintiff and it is no longer open to him to ask the court to strike out defence against eviction.
6. The learned trial judge without addressing itself to the question as to whether the plaintiffs suit was based on the ground of default appears to have assumed that sec 13(4) was applicable. Subsequent facts are not very much in dispute as the amount was not admittedly deposited on 17-10-1968. He, however, found that there was no waiver on the part of the landlord in having accepted the rent on 20-12-1968 of a period of 12 months in as much as the rent for subsequent period was not deposited in accordance with the requirements of sec. 13(4) of the Act. He accordingly struck out the defence of the tenant against eviction by his order dated 18-11-1972
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