Kuldeep
Singh Vs. Ganpat Lal & Anr [1995] INSC 796 (5 December 1995)
Kuldip
Singh, S. Saghir Ahmad S.C. Agrawal, J :
ACT:
HEAD NOTE:
Leave
granted.
This
appeal by the tenant arises out of a suit for eviction filed by the respondents
under the provisions of the Rajasthan Premises (Control of Rent & Eviction)
Act, 1950 (hereinafter referred to as the 'Act'). It relates to a shop situated
at Udaipur in Rajasthan. Under Section 13 (1)(a)
of the Act, the tenant can be evicted from the premises if he has neither paid
nor tendered the amount of rent due from him for six months. Sub-Section (6) of
Section 13 affords pro- tection to the tenant from eviction if the tenant
deposits in court or pays to the landlord the amount determined by the court in
terms of Sub-sections (3) and (4) of Section 13 of the Act. This protection is,
however, not available if the tenant after having obtained such benefit in
respect of the premises again makes a default in the payment of rent of the
said premises for six months. The respondent landlords had filed a suit (Suit
No.117 of 1981) against the appellant for his eviction on the ground of default
in the payment of rent and protection under Section 13(6) of the Act was given
to the appellant in those proceedings. On December 20, 1982 the respondents
filed a second suit (Suit No.169 of 1983) which has given rise to this appeal
in the court of District Judge at Udaipur for the eviction of the appellant on
the ground that he has defaulted for the second time in payment of rent,
inasmuch as he had not paid the rent for six months from May 1, 1982.
The
said suit was contested by the appellant, who denied that he had committed a
second default in payment of rent for six months. The case of the appellant was
that he had paid the rent for five months from May, 1982 to September, 1982 in
cash to the respondents and 10 days later on October 21, 1982 when he went to
them for collecting the receipt for the said payment, they refused to give the
said receipt and returned the amount which was paid by the appellant to the
respondents by way of rent. The appellant claims that thereupon on October 22,
1982, he submitted an application under Section 19-A of the Act in the court of
Munsiff (South), Udaipur narrating the aforesaid facts and seeking permission
of the court to deposit the rent for the months of May to October, 1982 in the
court and that after obtaining the permission of the court, the appellant on
October 29, 1982 deposited the sum of Rs. 3,600/- in the court by way of rent
for the period from May, 1982 to October, 1982 by tender No. 1711 dated October
29, 1982 and that the notice of application submitted by the appellant under
Section 19-A of the Act had been issued to the respondents. The said suit of
the respondents was dismissed by the Additional District Judge No.1. Udaipur by his judgment dated July 2, 1987 on the view that the appellant
could not be held to be a defaulter in the payment of rent since he had
deposited the rent for the months of May, 1982 to October, 1982 in the court on
29th October, 1982 before the rent for six months fell
due. The respondents filed an appeal against the said judgment of the Addl.
District Judge in the High Court of Rajasthan. The said appeal was allowed by a
learned Single Judge of the High Court by his judgment dated January 25, 1989. The learned Judge, after
considering the evidence adduced by the appellant, has held that his plea about
payment of rent personally to the respondents had no legs to stand. The learned
Judge further held that the deposit by the appellant in the court under Section
19-A of the Act was not a valid valid deposit and the appellant could not claim
any benefit on the basis of the said deposit under Section 19-A inasmuch as the
appellant had not adopted the procedure as laid down in Sub-section (3) of
Section 19- A before making the said deposit and that the appellant had
committed a second default in payment of rent for six months. The learned
Single Judge rejected the contention urged on behalf of the appellant that the
cause of action had not arisen on November 1,1982 because the rent for the month of
October could have been paid by November 15 and that on November 1, 1982 the rent for five months only was
due and not for six months. The learned single Judge has held that the rent for
a particular month becomes due as soon as the month ends and under the
provisions of the Act it was made payable by a particular date, i.e. the 15th
of next following month, but it was only a facility provided to the tenant to
pay the rent by that date and it does not mean that the rent for the month of
October had not become due on November 1,1982. The special appeal filed by the
appellant against the said judgment of the learned Single Judge was dismissed
by the Division Bench of the High Court by the impugned judgment dated March 8, 1989. Hence, this appeal.
Shri Rajinder
Sachar, the learned Senior Counsel appearing for the appellant, has, in the
first place, invited out attention to para 6 of the plaint, wherein the
respondents have stated:
"6.
That the cause of action for the suit arose on 1.11.1982 when the rent of six
months became outstanding." The submission of Shri Sachar is that in view
of Clause (e) of Rule 1 of Order VII of the Code of Civil Procedure, it was
incumbent upon the respondents to set out in the plaint the facts constituting
the cause of action and when it arose and as per the said requirement the
respondents, in para 6 of the plaint, have indicated that the cause of action
arose on November 1,1982. Shri Sachar has submitted that the said statement in para
6 of the plaint is not correct and has pointed out that under Sub-section (1)
of Section 19-A of the Act, it is provided:- "(1) Subject to the
provisions of this section, every tenant shall pay rent within the time fixed
by contract or in the absence of such contract, by the fifteenth day of the
month next following the month for which it is payable." According to Shri
Sachar, since no time was fixed for payment of rent by contract, the rent was
payable by the appellant by the 15th day of the month next following the month
for which it was payable and the rent for the month of October, 1982 was
therefore, payable by November 15, 1982 and that on November 1, 1982 the rent
for October, 1982 was not due and therefore, it could not be said that on
November 1, 1982, when the cause of action is claimed to have arisen, the
appellant was in default of payment of rent for six month. It is no doubt true
that in view of Sub-section (1) of Section 19-A of the Act, since there was no
contract prescribing the date for payment of rent, the appellant could pay the
rent for the month of October, 1982 till November 15, 1982 and the cause of
action for filing a suit on the ground of default for the payment of rent for
the months of May, 1982 to October, 1982 could arise only on November 16, 1982
and to that extent and the statement in the plaint that the cause of action
arose on November 1, 1982 is not correct. But that does not mean that the
respondents must be non-suited on this ground. The object underlying Order VII
Rule (1) (e) which requires that the plaint shall contain the particulars about
the facts constituting the cause of action and when it arose, is to enable the
court to find out whether the plaint discloses the cause of action because the plaint
is liable to be rejected under Order VII Rule 11 CPC if it does not disclose
the cause of action. The purpose behind the requirement that the plaint should
indicate when the cause of action arose is to help the court in ascertaining
whether the suit is not barred by limitation. Any error on the part of the
plaintiff in indicating the date on which the cause of action arose would be of
little consequence if the cause of action had arisen on the date on which the
suit was filed and the suit was within limitation from the said date. The error
in mentioning the date on which the cause of action had arisen in the plaint in
such a case would not disentitle the plaintiff from seeking relief from the
court in the suit. In the instant case, the suit was filed on December 20, 1982
on which date admittedly the rent for six months i.e. from May, 1982 to
October, 1982 had fallen due. Moreover, in para 7 of the plaint, while
indicating the valuation of the suit for the purpose of court fee, the
respondents have stated that there was outstanding rent of 7 months amounting
to Rs.4,200/- and court fee was paid on the said amount of outstanding rent.
Merely because in para 6 of the plaint, the respondents have stated that the
cause of action arose on November 1, 1982 would not, in our opinion, disentitle
the respondents from seeking relief of eviction since as per the plaint, on the
date of the filing of the suit the rent for seven months (May, 1982 to
November, 1982) had fallen due. The first contention urged by Shri Sachar
cannot, therefore be accepted.
The
next contention urged by Shri Sachar relates to the deposit of the sum of Rs.3,600/-
by the appellant in the court on 29th October, 1982 under Section 19-A of the Act.
For
that purpose, it is necessary to take note of the relevant provisions contained
in Sub-sections (3) and (4) of Section 19-A, which provide as under:
"(3)
A tenant may, apart from personal payment of rent to the landlord, remit or
deposit rent by any of the following methods- (a) he may remit the amount of
any rent due from him by postal money order at the ordinary address of the
landlord; or (b) he may, by notice in writing, require the landlord to specify
within ten days from the date of receipt of the notice by the latter, a bank
and account number into which the rent may be deposited by the tenant to the
credit of the landlord. If the landlord specifies a bank and account number,
the tenant shall deposit the rent in such bank and account number and shall
continue to deposit in it any rent which may subsequently become due in respect
of the premises:
Provided
that such bank shall be one situated in the city or town in which the premises
is situated :
Provided
further that it shall be open to the landlord to specify from time to time by a
written notice to the tenant and subject to the proviso aforesaid, a bank
different from the one already specified by him under this clause;
(c)
Where he has remitted the rent by postal money order under clause (a) and the
money order is received back by him under a postal endorsement of refusal or
unfound and where the landlord does not specify a bank and account number under
clause (b) or where there is bona fide doubt as to the person or persons to
whom the rent is payable, the tenant may deposit such rent with the court
within fifteen days of the expiry of the period of ten days referred to in
clause (b) and in the case of such bona fide doubt as aforesaid, within fifteen
days of the time referred to in sub-section (1) and further continue to deposit
with the court any rent which may subsequently become due in respect of the
premises.
(4)
For the purpose of clause (a) of sub-section (1) of section 13, a tenant shall
be deemed to have paid or tendered the amount of any rent due from him, if he
has paid, remitted or deposited the amount of rent by any of the methods
specified in sub-section (3)." Under Sub-section (3), apart from personal
payment of rent to the landlord, three other modes have been prescribed,
namely, (i) remittance by postal money order at the ordinary address of the
landlord, (ii) deposit in the bank account of the landlord and (iii) deposit in
court in cases where the money order has been received back under the postal
endorsement of refusal or unfound or where the landlord does not specify the
bank account number or where there is a bona fide doubt that the person or
persons to whom the rent is payable. Under Sub-section (4), a legal fiction is
created and the tenant is deemed to have paid or tendered the amount of rent
due from him and is not to be treated in default of payment of rent if he has
paid, remitted or deposited the amount of rent by any of the three methods
specified in Sub- section (3).
The
High Court has held that in view of the language of Clause (c) of Sub-section
(3) of Section 19-A, a deposit in the court can be made only if the conditions
laid down in clause (c) are fulfilled and if the said conditions are not
fulfilled, the deposit would not be treated as a valid deposit under Clause (c)
of Sub-section (3) of Section 19-A and would not entitle the tenant to avail
the benefit of Sub-section (4) of Section 19-A. It has been held that in the
instant case, it is not the case of the appellant that he had remitted the
amount of rent due from him by postal money order and the same had been received
back by him under the postal endorsement of refusal or unfound, nor is it the
case of the appellant that he had asked the respondents to indicate the bank
account number in which the rent may be deposited by the appellant to the
credit of the respondents and the respondents had failed to specify the bank
and account number and that it is also not the case of the appellant that there
was a bona fide doubt as to the person or persons to whom the rent was payable.
Shri Sachar
does not dispute that the conditions prescribed in clause (c) of Sub-Section
(3) of Section 19-A for the purpose of making the deposit in court are not
fulfilled in the present case. The submission of Shri Sachar, however, is that
since the appellant had deposited in court the rent for the months of May, 1982
to October, 1982 on 29th October, 1982, before the said rent for six months
fell due, he cannot be held to be a defaulter in payment of rent for six months
and a decree for eviction under Section 13 (1) (a) could not be passed. Shri Sachar
has, in this connection, placed reliance on the decisions of this Court in Duli
Chand vs. Maman Chand 1980(1) S.C.C. 246 and Sheo Narain vs. Sher Singh 1980
(1) S.C.R.836.
We
have carefully perused the said judgments. Both these judgments relate to the
proviso to Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949
which affords protection against eviction of the tenant if on the first hearing
on the application for ejectment after due service he pays or tenders the
arrears of rent and interest at six per cent per annum on such arrears together
with the cost of application assessed by the Controller. In both these cases,
the tenant had deposited the amount of rent in the Court in which the ejectment
proceedings were pending prior to the first hearing of the application and on
the first hearing the landlord was made aware of the deposit.
This
Court has held that even though there was no provision in the Act for deposit
of the rent in Court the said deposit could be treated as compliance of the
requirements of the proviso to Section 13 (2)(i) of the East Punjab Urban Rent
Restriction Act, 1949 and the tenant was entitled to avail the benefit of the
said proviso.
In the
present case, the appellant is seeking to avail the benefit of the legal
fiction under Section 19-A(4) of the Act. It is settled law that a legal
fiction is to be limited to the purpose for which it is created and should not
be extended beyond that legitimate field. [See : The Bengal Immunity Company
Limited v. The State of Bihar & Ors., 1955 (2) SCR 603 at p.
646]. The appellant can avail the benefit of Section 19-A(4) if the deposit of
Rs.3,600/- made by him in the Court of Munsiff (South), Udaipur, on October 29,
1982, by way of rent for the months of May, 1982 to October, 1982, can be
treated as a payment under Section 19-A (3)(C) so as to enable the appellant to
say that he was not in default in payment of rent. Under Section 19-A(3)(c) the
tenant can deposit the rent in the Court only if the conditions laid down in the
said provision are satisfied. It is the admitted case of the appellant that
these conditions are not satisfied in the present case. The deposit which was
made by the respondent in Court on October 29, 1982 cannot, therefore, be
regarded as a deposit made in accordance with clause (c) of Sub-section (3) of
Section 19-A and the appellant cannot avail the protection of Sub-section (4)
of Section 19-A and he must be held to have committed default in payment of
rent for the months of May, 1982 to October, 1982. This means that the decree
for eviction has been rightly passed against the appellant on account of
default in payment of rent for the period of six months.
For
the reasons aforementioned, the appeal fails and it is accordingly dismissed. But
in the circumstances. there is no order as to costs.
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