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Judgment
The appellants have preferred this second appeal
aggrieved by order dated 09.08.2012 passed by Civil Judge
(Junior Division) Merta City, vide which the court has decreed the
suit of the plaintiffs-respondents and order dated 10.05.2016
passed by Additional District Judge, Merta, whereby the appellate
court partly allowed the appeal filed by the appellants, but upheld
the decree of eviction on the ground of default.
It is contended by counsel for the appellants that the
suit was filed on the ground of default and material alteration. The
court below decreed the suit only on the ground of default and the
appellate court has also upheld the decree on the ground of the
defendant committing default. It is contended by counsel for the
appellants that in the suit, rent was claimed from Magh Badi 1
Samwat 2053 and the period of default in the suit was mentioned
as ten months sixteen days. The suit was filed on 01.12.1997. It
is further contended that the appellant-defendant sent the rent by
money order for the period from February, 1997 to May, 1997, but
the same was refused by the landlord, and therefore, the
appellant deposited the rent in court on 04.09.1997 and the same
being valid tender and deposit, the decree passed by the court
below is bad in law.
It is further contended by counsel for the appellants
that since the rent was deposited prior to filing of the suit, there
was no default and both the courts below have committed error in
law in decreeing the suit on the ground of default. Counsel for the
appellants has also drawn my attention towards Ex.20, which is
money order receipt, wherein it is mentioned that the rent for the
months of February, 1997 to May, 1997 Rs.2000/- is being sent.
There is a note of refusal on the said receipt. Ex.21 is the receipt,
vide which the amount was sent by money order.
It is also contended by counsel for the appellants that
since the appellant has tendered the rent, there was no default
and therefore, the courts below have erred in striking out the
defence of the defendant. It is further contended that after the
landlord refused to accept the rent, the same was deposited under
Section 19A of the Rent Control Act on 04.09.1997. Thus, six
months'' rent was not due on the date of filing of the suit. It is
also contended that the plaintiff-respondent was required to prove
the factum of default of six months and merely because, the
defence was struck off, the court could not have decreed the suit
without there being evidence of default.
In support of his contentions, counsel for the appellants
has placed reliance on the following judgments:-
(a) Fakir Mohd. (Dead) by LRs. Vs. Sita Ram, 2002 WLC
(SC) Civil Page 96.
(b) Smt.Manak Bai & Ors. Vs. Kalyan Bux - (143), RLR
1989(2) 704.
(c) Kanhaiya Lal Vs. Sampat Raj Kothari, 2000(1) WLC
(Raj.) 508.
(d) Mohanlal Vs. Lakhekhan, 1972 WLN Part I 753.
(e) Kalyan Mal Vs. Shakuntala Devi (151), RLW 1988(2)
584.
(f) B.B.Bhalla Vs. Rameshwar Kishore Badhwar, 2001 DNJ
(Raj.) 298.
Counsel for the respondents have opposed the second
appeal. Their contention is that no substantial question of law is
made out in this case. The rent was to be deposited according to
the Hindi Calendar, and as the same was not tendered properly,
the same was not accepted. It is further contended that since the
defendant has deposited the rent in court without following the
procedure prescribed under Section 19A, the same cannot be
termed as a valid deposit, as the appellant has not sought the
bank account number before depositing the rent. It is further
contended that the tenant has not deposited the rent after
determination by the court and has committed defaults on various
occasions. Therefore, the striking out of defence of the tenant was
in accordance with law and since the defence of the appellant was
struck off, the courts below have rightly decreed the suit.
Counsel for the respondents have placed reliance on
the following judgments:-
(a) Bhanwarlal Vs. Champalal, 1978 0 RLW (Raj.) 562.
(b) Ganesh Daroga Vs. Smt.Beena Kumari & Anr., 1996 (3)
RLW (Raj.) 283.
I have considered the arguments advanced and have
perused the rulings cited before me.
Fakir Mohd. (Dead) by LRs. Vs. Sita Ram (supra)
was a case where the provisions of Section 19A were interpreted
by the Apex Court and it was observed that the tenant can pay the
rent by either of the modes provided under Section 19A i.e.
personal payment, remitting the rent by postal order and
depositing the rent due in the Bank.
Smt.Manak Bai & Ors. Vs. Kalyan Bux (supra) was
a case where the High Court held that if the tenant acts in any of
the modes provided under sub-section (3) of Section 19A, he can
escape liability from eviction on the ground of default in payment
of rent under Section 13, in view of sub-section (4) of Section 19A
of the Act.
In Kanhaiya Lal Vs. Sampat Raj Kothari (supra),
the Court observed that if the tenant sends the rent by money
order, it is not obligatory for him to adopt other methods provided
under Section 19A.
In Mohanlal Vs. Lakhekhan (supra), the Rajasthan
High Court has observed that even after striking off the defence,
the plaintiff has to prove his averment to entitle him of a decree
for eviction.
Similar was the view taken in Kalyan Mal Vs. Shakuntala Devi
(supra).
In B.B.Bhalla Vs. Rameshwar Kishore Badhwar
(supra), the Court observed that it was incumbent upon the
plaintiff/landlord to lead the evidence that the defendant/tenant
had neither paid nor tendered the amount of rent due from him
for six months and he was a defaulter. It has been further
observed that even if the evidence of the tenant has been struck
off, it was necessary for the plaintiff to establish his case by
adducing evidence that the defendant was a defaulter.
From document Ex.1, it is apparent that the rent was
paid @ Rs.500/- per month according to the Hindi calender. From
the documents submitted by the appellant relating to sending of
rent by money order Ex.20, it is apparent that the rent was sent
for the months of February, 1997 to May, 1997, but the same was
not sent according to the Hindi calendar. Therefore, the landlord
was justified in refusing to receive the rent, which was not paid in
accordance with the Hindi calendar. The rent was also not
deposited by the appellant in accordance with the Hindi calendar,
but the rent for the months of February, 1997 to July, 1997 was
deposited on 04.09.1997 in accordance with Gregorian calender.
The contention of counsel for the appellant that the
appellant has tendered the amount of rent and also deposited the
same, and therefore, there was no default, do not have any force,
because sub-section (1) of Section 19A of the Rajasthan Premises
(Control of Rent & Eviction) Act, 1950 provides that the tenant
shall pay rent within the time fixed by the contract or in the
absence of such contract, by the fifteenth day of the month next
following the month for which it is payable.
Since the tenant has agreed to pay the rent in
accordance with the Hindi calendar, he was bound to pay the rent
within the time fixed by the contract. Any payment made by him,
which was contrary to the contract, was not a valid tender, and
therefore, the contention of counsel for the appellant that the
appellant has tendered the amount of rent, cannot be accepted.
Similarly, the deposit of rent in the court cannot be
considered as a valid deposit because the same was also not
deposited in terms of the contract. Both the courts below have
therefore, not erred in decreeing the suit of the
plaintiff/respondent on the ground of default.
The other contention of counsel for the appellant is that
the plaintiff was required to prove the default, and in absence of
the proof, the court should not have presumed the factum of
default. This argument also does not have any basis, as the
plaintiff appeared in the witness box and specifically stated that
the rent was payable in accordance with the Hindi calendar, and
that on the date of filing of the suit, the rent was due from Magh
Badi Ekam Samwat 2053 to Migsar Badi Ekam-Dooj Samwat
2054 i.e. 10 months 16 days.
Further, it is important to note that the appellant did
not deposit the rent in time, even after determination and
subsequent rent was also not deposited within time. The defence
against the eviction was therefore, rightly struck off.
In view of the discussions made hereinabove, it is
apparent that the plaintiff had led evidence in support of the
factum of defendant committing default. The defendant had not
made a valid tender and had not deposited the rent in accordance
with the contract with the landlord. Therefore, the rulings cited by
counsel for the appellant do not apply to the facts of the present
case.
Counsel for the respondent has placed reliance on
Bhanwarlal Vs. Champalal (supra), wherein the Rajasthan
High Court has held that where there was no dispute between the
parties regarding the calendar month, rent was payable according
to Hindi Samwat and on defendant''s failure to pay rent according
to Hindi Samwat, his defence was liable to be struck off, though he
may have paid the rent every month according to Gregorian
calender.
Ganesh Daroga Vs. Smt.Beena Kumari & Anr.
(supra) was a case where the Court observed that after
determination of rent, its deposit is to be made within the
statutory period and the same is mandatory. It has been further
observed that if there is persistent default in payment of rent,
Section 13(5) gets attracted and the defence is liable to be struck
off.
No substantial question of law is therefore, made out in
the present second appeal and the same deserves to be
dismissed.
Consequently, the present second appeal is dismissed.
The stay application also stands disposed. The record of the court
below be returned forthwith.