Ladu
Ram Vs. Ganesh Lal [1999] INSC 267 (12 August 1999)
V.N.Khare,
Syed Shah Mohammed Quadri V.N. KHARE, J.
The
appellant herein is the landlord who brought a suit for ejectment against the
respondent-tenant on the ground of bona fide need and default in making payment
of rent. It is not disputed that the appellant in the suit did not seek any
relief in respect of recovery of arrears of rent. In the plaint it was alleged
that the rent was due against the tenant since December, 1993. The trial court
determined the provisional rent as required under sub-section (3) of Section 13
of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter
referred to as the Act) which the respondent-tenant was required to deposit or
pay the rent from December 1993 to January 1996 - amounting to Rs.69,920/-,
plus interest @ 6 per cent to the landlord. The respondent-tenant challenged
the order passed by the trial court before the lower appellate court but the
same was dismissed. Aggrieved, the tenant filed a revision petition before the
High Court of Judicature of Rajasthan at Jaipur. The High Court took the view
that, in the absence of relief in the suit for recovery of arrears of rent, the
trial court could not have determined the provisional rent to be deposited by
the tenant under section 13(3) of the Act. Consequently, the revision was
allowed and the order of the court below was set aside. Against this order of
the High Court the landlord is in appeal before us.
It is
urged on behalf of the appellants counsel that the view taken by the High Court
that, as the averments of default was not substantiated by the landlord by
asking the relief of recovery of arrears of rent in the plaint, the ground of
default was not properly set forth in the suit, therefore, the court was not
required to determine the amount of rent, is patently erroneous. After we heard
the matter, we found merit in the submission. In order to appreciate the
arguments it is necessary to set out the relevant provisions of the Act.
13 (a)
that the tenant has neither paid nor tendered the amount of rent due from him
for six months.
(3) In
a suit for eviction on the ground set forth in clause (a) of sub-section (1);
with or without any of the other grounds referred to in that sub-section, the
court shall, on the first date of hearing or on any other date as the court may
fix in this behalf which shall not be more than three months after filing of
the written statement and shall be before the framing of the issue, after
hearing the parties and on the basis of material on record provisionally
determine the amount of rent to be deposited in court or paid to the landlord
by the tenant. Such amount shall be calculated at this rate of rent at which it
was last paid or was payable for the period for which the tenant may have made
default including the period subsequent thereto up to the end of the month
previous to that in which such determination is made together with interest on
such amount calculated at the rate of six per cent per annum from the date when
any such amount was payable up to the date of determination;
Provided
that while determining the amount under this sub-section, the court shall not
take into account the amount of rent which was barred by limitation on the date
of the filing of the suit.
(4)
The tenant shall deposit in court or pay to the landlord the amount determined
by the court under sub-section(3) within fifteen days from the date of such
determination, or within such further time, not exceeding three months, as may
be extended by the court. The tenant shall also continue to deposit in court or
pay to the landlord, month by month, the monthly rent subsequent to the period
up to which determination has been made, by the fifteenth of each succeeding
month or within such further time not exceeding fifteen days, as may be
extended by the court at the monthly rate at which the rent was determined by
the court under sub-section (3).
(5) If
a tenant fails to deposit or pay any amount referred to in sub-section (4), on
the date or within the time specified therein, the court shall order the defence
against eviction to be struck out and shall proceed with the hearing of the
suit.
(6) If
a tenant makes deposit or payment as required by sub-section (4), no decree for
eviction on the ground specified in clause (a) of sub-section (1) shall be
passed by the court against him;
Provided
that a tenant shall not be entitled to any relief under this sub-section, if
having obtained such benefit or benefit under section 13-A in respect of any
such accommodation, if he again makes a default in the payment of rent of that
accommodation for six months.
The
plaint of the suit filed by the appellant discloses that the suit was for ejectment
of the respondent tenant on the ground of default in payment of rent.
According
to the scheme of the Act, in such a suit the court is required to provisionally
determine the amount of arrears of rent to be deposited in the court or pay to
the landlord by the tenant along with interest. After the provisional
determination of the arrears of rent by the trial court, the tenant is required
to deposit the entire arrears of rent as determined by the trial court within a
particular period of time, and further the tenant is required to deposit in the
court or pay to the landlord monthly rent subsequent to the period upto which
the determination has been made. In case the tenant fails to comply with the
order of the court, his defence against the eviction is liable to be struck off
and the court is to proceed with the hearing of the suit. If the tenant
complies with the order, the tenant is relieved of the decree for eviction on
the ground of default in payment of rent.
Now,
the question that arises for consideration is, whether a court in absence of
any relief for recovery of arrears of rent in a suit for eviction based on
default in payment of rent is precluded to determine the provisional amount of
rent which a tenant is required to deposit?. If a suit for eviction is based on
the ground set forth in clause (a) of sub-section (1) of Section 13 of the Act,
the landlord must allege and prove three requirements, namely, (i) the tenant
is in arrears of rent, (ii) such arrears of rent were due for more than six
months and (iii) the tenant has failed to pay such arrears of rent to the
landlord.
Excepting
these requirements there is no other requirement of law which a landlord is to
plead and prove for obtaining decree of eviction. We, therefore, find that a
landlord is not required in a suit for eviction based on default to seek an
additional relief for recovery of arrears of rent. Even without such a relief a
decree for eviction against a tenant can be passed by the court. This aspect
can be examined from another angle. Under Order 2 sub-rule (2) C.P.C., where a
plaintiff omits to sue in respect of, or intentionally relinquishes any portion
of his claim, he is debarred afterwards to sue in respect of the portion so
omitted or relinquished. The only effect of absence of relief for recovery of
arrears of rent in a suit is that the plaintiff cannot subsequently file a suit
for recovery of arrears of rent for which he omits to sue in a suit for
eviction based on default in payment of rent. Applying the said principles it
does not stand to reason why a suit simplicitor for eviction on the ground set
forth in clause (a) of sub-section (1) of Section 13 of the Act is not
maintainable in absence of relief for recovery of arrears of rent. A perusal of
sub-sections (3), (4), (5) and (6) of Section 13 shows that the determination
and payment of arrears of rent by a tenant have been provided for the benefit
of tenant. The object behind the aforesaid provisions is that no decree of ejectment
can be passed in favour of landlord where the eviction is sought on the ground
of default in payment of arrears of rent if the tenant pays or deposits the
arrears of rent within the time provided. If the tenant deposits the arrears of
rent, not only that he can contest the suit filed by the landlord, but also can
avoid decree for ejectment on the ground of default in payment of rent.
Therefore, the tenant cannot complain that in absence of any relief for
recovery of arrears of rent in a suit for eviction, the court is not competent
to provisionally determine the arrears of rent which a tenant is required to
deposit within a particular period of time.
The
relief for ejectment on the ground of default can be granted if it is found by
the court that the tenant was in arrears of rent as contemplated under section
13(1)(a) of the Act and the tenant has further failed to comply with the
provisions of sub-sections (3) and (4) of Section 13 of the Act. We are,
therefore, of the view that in a suit for ejectment of a tenant on the ground
set forth in Section 13(1)(a) of the Act, the court is required to
provisionally determine the amount of rent which a tenant is required to
deposit in order to escape from the decree of eviction even if no relief is
prayed for, for recovery of arrears of rent.
In
case the rent is deposited, the landlord is entitled to get the arrears of rent
as the tenant has relieved himself of the decree of eviction.
For
all these reasons we find that the judgment of the High Court suffers from
serious legal infirmity and deserves to be set aside. We, accordingly, set
aside the order of the High Court under appeal. The appeal is allowed with
costs, which we assess at Rs.1,000/-.
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