Deciding Authority: The Supreme Court of India
Name of the Judges: R.C. LAHOTI & RUMA PAL
Date of Judgement: 20/02/2002
Facts: The suit shop is owned by the respondent and is held by the tenant-appellant on a monthly rent of Rs. 22. Earlier, there was a default in payment of rent by the tenant, for which, on the ground available under Clause (a) of subsection (1) Section 13 of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter ’the Act’ for short), the landlord-respondent had filed a suit for recovery of rent and for eviction. Let this suit be referred to as ’first suit’. During the pendency of this suit, the tenant complied with sub-section (4) of Section 13 by making the deposit of rent, as contemplated therein. On 14.11.1983, the Trial Court refused to pass a decree for eviction against the tenant, holding that although the tenant had committed a default in payment of rent before the institution of suit, but, in view of his having complied with the provisions of sub-section (4) of Section 13, he was entitled to benefit of relief against eviction. The landlord preferred an appeal. On 21.08.1984, much before the withdrawal of the appeal as abovestated, the landlord had filed a second suit against the tenant, praying for a decree of eviction, alleging that tenant had committed a second default by not paying or tendering the rent to the landlord for the period between 5th November, 1983 and 28th July, 1984. Admittedly the period of second default alleged as providing cause of action to the landlord in the second suit for eviction, was covered by the period during which the first appeal preferred by the appellant against the decree of the Trial Court passed in the first suit was pending. It is also admitted that during the pendency of that appeal, the tenant had continued to deposit the rent in the Court month by month, as contemplated by sub-section (4) of Section 13 for the entire period during which the appeal was pending. The Trial Court in the second suit, formed an opinion that after the decision by the Trial Court in the first suit, the tenant ought to have paid or tendered rent to the landlord in accordance with Section 19-A of the Act and any payment by way of deposit made by the tenant in the Court during the pendency of the appeal against the decree in first suit could not come to his rescue, as it was not a payment or tender, as contemplated by Section 19-A of the Act. The Trial Court, therefore, directed the second suit for eviction to be decreed by holding the tenant guilty of second default within the meaning of proviso to sub-section (6) of Section 13. The decree was reversed in appeal preferred by the tenant. However, the High Court has, by its impugned judgment and decree, set aside the decree of the Appellate Court and restored the decree passed by the Trial Court.
Judgement: A perusal of Section 13 goes to show that failure of the tenant to pay or tender the rent due from him for a period of six months provides a ground for his eviction. On a suit for such relief being instituted by landlord, the tenant must deposit in Court or pay to the landlord the arrears of rent on the first date of hearing or within 15 days from the date of determination by the Court of provisional amount, or within the extended time, and thereafter continue to deposit in Court or pay to the landlord month by month the monthly rent falling due for the subsequent period, as contemplated by sub-section (3), and sub-section (4) of Section 13. Failure to make deposit or payment consistently with sub-section (4) may entail defence against eviction being struck out. However, compliance with subsection (4) confers on the tenant an immunity from eviction on the ground specified in Clause (a) of sub-section (1). Such immunity is one time benefit given to the tenant. If the tenant commits a default for a second time, having earned once earlier an immunity from eviction within the meaning of sub-section (6), then, on a subsequent suit being filed, the tenant cannot once again escape the decree for eviction inspite of compliance with the provisions of sub-section (4). On a suit for eviction being instituted, compliance with sub-section (4) by the tenant as contemplated by Section 13 is in “Court”. The legislature has not chosen to use words “Trial Court” in the framing of Section 13. Ordinarily, an appeal is a continuation of suit. The tenant is bound to comply with provisions of sub-section (4) if the claim for eviction on having been denied by the Trial Court is pursued in appeal by the landlord. Inspite of a decree for eviction having been refused by the Trial Court, the Appellate Court may still, in an appeal preferred by the landlord, pass a decree for eviction. On the date of the passing of the decree, the Appellate Court shall have to see, in view of the obligation cast on it by sub-section (6), whether the tenant had made deposit or payment, as required by sub-section (4). The object behind enacting Section 13 is that pendency of litigation should not be used by tenant as an excuse for suspending his obligation to regularly pay the rent and the landlord should not be compelled to file separate proceedings for recovery of rent falling due during the pendency of already filed eviction proceedings.
In the case before this Court, The tenant in order to escape the rigour of his defence against eviction being struck out and to avail the benefit of relief against eviction under sub-section (6), or, to be more accurate, to see such relief as was allowed to him by the Trial Court being upheld by the Appellate Court, shall have to satisfy the Appellate Court also of his compliance with sub-section. (4) upto the date of judgment by the Appellate Court. The tenant was, therefore, continuing to deposit the rent during the pendency of the appeal. There was no occasion for the landlord to hold the tenant a defaulter for the period 05.11.1983 to 28.07.1984 and file a second suit for eviction in view of the tenant continuing to deposit the rent in the appeal preferred by the landlord against the decree in the first suit. The tenant was not required to pay the same rent twice over personally to the landlord or to tender the same in one of the modes prescribed by Section 19-A. The question of payment, remittance or deposit of rent by tenant in one of the modes provided by Section 19-A could have arisen if there was no suit or appeal pending between the landlord and the tenant and therein the tenant was not required to deposit, or could not have made deposit of, rent in Court. The tenant, in the case before this Court, was not in default for the period 05.11.1983 to 28.07.1984 and no cause of action arose to the landlord for filing the second suit for eviction.
Decision:
The appeal is allowed.
Sudipta Bhowmick, 4th Year, KIIT School of Law
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