Chandmal @ Kundan Soni vs Govind Ram

Vineet Kothari, J.—Heard the learned Counsels.

This writ petition is directed against the order dtd.20.2.2008 passed by the learned Trial Court and the order dtd.3.1.2009 passed by the appellate Court allowing the application of the respondent - plaintiff - landlord u/s 13(5) of the Rent Control Act, 1950 and striking off the defence of the petitioner - defendant - tenant. The learned Courts below have observed that after determination of rent u/s 13(3) of the Act, there were several defaults on the part of the petitioner - defendant - tenant in deposit of rent in the Court and therefore, in view of Section 13(5) of the Act, the defence of the defendant deserves to be struck off.

Being aggrieved by this order, the petitioner has approached this Court by way of present writ petition.

The learned Counsel for the petitioner submitted that in fact the petitioner - defendant had deposited the advance rent for the period in question e.g. For the period from 1.12.2001 to 30.4.2003, the amount in question of rent was deposited on 3.1.2003 and therefore, for the month of November, 2002, it could not be said to be delayed deposit. Similarly for the period from 1.5.2003 to 30.4.2004, the entire amount of rent in question was deposited on 14.8.2003, therefore, the delay for the month of May and June, 2003 could not be accepted. He has also produced a chart for perusal of the Court, which is said to have been produced before the learned Court below showing that delay in deposit of rent stood wiped out once the block deposit was made in the mid of the said block period. He relied upon the decision of Hon''ble Supreme Court in the case of Mohan Laxman Hede Vs. Noormohamed Adam Shaikh, and submitted that in order to take advantage of Section 12(3)(b) of the Bombay Rent Act, exact or mathematical punctuality is not required in the deposit of rent by a tenant. The word "regularly" in Section 12(3)(b) contemplated deposit of rent with reasonable punctuality.

On the other hand, Mr. S.M. Toshniwal, learned Counsel appearing for the respondent - plaintiff vehemently submitted that the judgment relied upon by the learned Counsel for the petitioner is no longer a good law in view of later decisions of the Hon''ble Supreme Court in the case of Nasiruddin and Others Vs. Sita Ram Agarwal, which judgment has been consistently followed by this Court in the case of Krishan Kumar v. Paras Ram reported in 2003(3) DNJ (Raj.) 1146 and in the case of Krishna Gopal Vs. Ramchandra and Others, and he submitted that the delay in deposit of rent by the petitioner is admitted by the petitioner himself and the payment made in the mid of the block period cannot be said to be advance payment of rent as delay for past period of said block period cannot be said to be wiped out by such alleged advance deposit. He submitted that further more withdrawal of the amount so deposited, by the respondent - plaintiff does not waive the default in payment of rent and Section 13(5) of the Act applies in such case and striking off the defence was perfectly justified.

Having heard the learned Counsel, this Court is of the opinion that the courts below cannot be said to have committed any error in allowing the application u/s 13(5) of the Act and the regularity in payment of rent after determination u/s 13(3) of the Act has to be maintained by the defendant - tenant. Even a single default in payment of such rent can incur striking off the defence u/s 13(5) of the Act. After decision of the Hon''ble Supreme Court in the case of Nasiruddin (supra), where the Court categorically held that provisions of Section 13(5) of the Act cannot be construed liberally and provisions of Limitation Act do not apply in such provisions and there cannot be any condonation of delay in deposit of such rent after its determination by the Court u/s 13(3) of the Act. The later view naturally prevails over the previous judgment relied upon by the learned Counsel for the petitioner - defendant and therefore, the earlier judgment cannot be said to be any longer a binding precedent. The later decision of the Hon''ble Supreme Court in the case of Nasiruddin (supra) has been consistently followed by this Court in number of cases. Since the delay in deposit of rent has been admitted by the defendant - petitioner himself, the contention raised on behalf of the petitioner that the rent deposited in lump sum should be deemed to have wiped out the default, cannot be accepted.

Consequently, this writ petition is found to be devoid of merit and the same is accordingly dismissed. No order as to costs.

The learned Counsel for the respondent has also filed an application u/s 22 Rule 3 C.P.C. in this Court for bringing on record the LRs. due to the death of the respondent - plaintiff Govind Ram. He further submitted that similar application has also been filed before the Court below. The Interlocutory application filed before the Court below will be dealt with in accordance with law.