Ram Pratap vs Anand Kanwar

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8504 OF 2018 (Arising out of SLP (Civil) No. 21338 of 2017)

RAM PRATAP … APPELLANT

VERSUS

ANAND KANWAR & ORS. … RESPONDENTS

J U D G M E N T

S. ABDUL NAZEER, J.

1. Leave granted.

2. In this appeal, the appellant has questioned the legality and Signature Not Verified

correctness of the judgment and order in S.B Civil Second Appeal Digitally signed by SANJAY KUMAR Date: 2018.08.21 16:50:59 IST Reason:

No.186/1998 dated 08.08.2016, whereby the High Court of 2

Judicature for Rajasthan (Jaipur Bench) has allowed the appeal

and set aside the judgment and decree of the courts below and

remanded the suit to the trial court for fresh disposal in accordance

with law.

3. The appellant­plaintiff is the landlord of the suit schedule

premises, whereas the defendant is the tenant. The plaintiff filed

Suit No. 357 of 1984 for eviction of the defendant from the suit

schedule premises on the ground of non­payment of rents under

Section 13(1) of the Rajasthan Premises (Control of Rent and

Eviction) Act, 1950 (for short the "Rent Act").

4. According to the plaintiff, the defendant stopped paying

monthly rent from 01.07.1981 to 30.06.1984. The defendant filed

the written statement contending that he has been paying the rent

regularly till 31.05.1983 to one Sh. Onkar Singh, who is a close

relative of the plaintiff. Onkar Singh was issuing rent receipts on

payment of the rent. The defendant also claims to have deposited

the rent up to 31.12.1989 in the court. Moreover, it is claimed by

the defendant that the plaintiff with an intention to get the premises

vacated and let out the same to others on increased rent has been 3

harassing the defendant and his other tenants. He prayed for

dismissal of the suit.

5. The trial court vide order dated 20.7.1995 decided the matter

in favour of the plaintiff. The defendant was directed to vacate the

schedule premises and make payment of arrears of rent. The

defendant filed an appeal against the said order. However, the first

appellate court vide order dated 28.02.1998 held that since the

matter was proceeded ex parte due to the absence of the defendant,

determination of rent would be an empty formality and hence, the

trial court has not committed any error in not determining the

provisional rent under Section 13(3) of the Rent Act. The first

appellate court accordingly upheld the decree. The defendant filed

a second appeal challenging the said order. The High Court vide

order dated 08.08.2016 has held that Section 13(3) of the Rent Act

is mandatory in nature so far as provisional determination of the

rent is concerned and without determination of rent no decree of

eviction on the ground of default can be passed. The High Court

remanded the suit to the trial court and directed the trial court to

decide the matter afresh within six months from the date of receipt 4

of the judgment. As noticed above, the defendant has questioned

the legality and correctness of the said judgment in this appeal.

6. Learned counsel for the appellant­plaintiff submits that the

defendant intentionally did not appear before the trial court to

defeat the process of the court and hence the court passed the

order to proceed ex parte against the defendant. Determination of

rent would be an empty formality, which was being heard ex parte

due to the intentional absence of the defendant. The intention of

the amended Section 13(3) of the Act was to protect the interest of

the landlord in the interim period when the suit for eviction is

pending. Therefore, the High Court was not justified in remanding

the matter to the trial court. On the other hand, learned senior

counsel appearing for the respondent­defendant submits that

Section 13(3) and (4) of the Act are mandatory in nature. These

Sections cast obligations on the court and following consequences

are also provided thereof under sub­Section (5) or sub­Section (6) of

Section 13. Unless such determination takes place, Section 13(6)

cannot be applied and a valuable right given to a tenant would be

lost. The respondents had filed the written statement on 5

08.08.1989 itself and the case was continuously adjourned for

determination of rent. As a matter of fact, it is only after a passage

of three months the tenant was placed ex parte and thereafter,

without determining the rent, the order of eviction was passed. In

fact, the appellant has deposited the rent under Section 19A(4) of

the Act. Therefore, the High Court was justified in remanding the

matter.

7. Having regard to the contentions urged, the question for

consideration is whether compliance of Section 13(3) of the Act is

mandatory in the suit for eviction on the ground of default and

without determination of rent no decree of eviction on the ground of

default can be passed.

8. The material facts are not in dispute. The plaintiff’s suit for

eviction was filed under Section 13(1)(a) on the ground of default in

payment of rent for the period from 01.07.1981 till 30.06.1984.

The defendant filed the written statement on 08.08.1989.

Thereafter, the matter was posted on different dates and it was

continuously adjourned for determination of rent. The case set up

by the plaintiff was that the rent had been enhanced to Rs.15/­ per 6

month, whereas the defendant has contended that the rent was

Rs.10/­ per month. The appellant’s counsel remained absent on

24.04.1993 and on that date the court proceeded matter ex parte

and fixed the next date on 24.07.1993. On the following date, the

case was adjourned as the presiding officer was on leave and the

next date was fixed on 22.09.1993 and, thereafter, the court

proceeded with the suit. The court did not frame any issues and

decreed the suit on 20.07.1995.

9. The claim of the plaintiff is that the defendant had committed

default in payment of rent for the period from 01.07.1981 till

30.06.1984. There was a dispute between the respondent and

Onkar Singh as to title, for which suit was filed by him against the

said Onkar Singh. The said suit was decreed on 07.11.1983 and

during the said litigation the defendant was depositing rent in court

under Section 19A of the Act.

10. It is evident that the trial court without determination of

provisional rent under Section 13(3) of the Act decreed the suit.

The question which has been raised by the defendant is as to

whether fixation of provisional rent by the trial court under Section 7 13(3) where eviction of a tenant is sought under Section 13(1)(a) is

mandatory or directory.

11. Section 13(1)(a) provides for eviction of as tenant for default in

payment of rents which is as under:­

“13. Eviction of tenants. – (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decrees or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied.

(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months”.

12. Section 13(3) as amended by Section 8(i) of Rajasthan Act

No.14 of 1976, dated 13­02­1976 reads as under:­

“In a suit for eviction on the ground set forth in clause (a) of sub­section (1), with or without any of the other grounds referred to in that sub­section, 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 8

of the issues, 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 the 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 sub­section, 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.”

13. It is also necessary to notice Section 13(4), (5) and (6) of the

Rent Act, which are as under:­

"13(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, 9

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 sub­section (3).

13(5) If a tenant fails to deposit or pay any amount referred to in sub­section (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. 13(6) If a tenant makes deposit or payment as required by sub­section (4), no decree for eviction on the ground specified in clause (a) of sub­section (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 13­A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months."

14. It is evident from Section 13(3) of the Rent Act that the use of

the word 'shall' puts a mandatory obligation on the court to fix

provisional rent within three months of the filing of the written

statement but before framing of the issues. The language of the 10

Section is mandatory and places a duty on the court to determine

the provisional rent irrespective of any application or not. If the

rent so determined by the court is paid by the tenant as provided

under Section 13(4), no decree for eviction of the tenant can be

passed on the ground of default under Section 13(1)(a) in view of

Section 13(6) of the Act. It is thus clear that unless the

determination under Section 13(3) takes place, Section 13(6) cannot

be complied with and a valuable right given to a tenant would be

lost. The High Court, in our view, has rightly held Section 13(3) of

the Act to be mandatory.

15. In view of the aforesaid discussion, we are of the view that

there is no merit in this appeal, which is accordingly dismissed.

There will be no order as to costs.

……………………………J. (N.V. RAMANA)

……………………………J. (S. ABDUL NAZEER) New Delhi;

August 21, 2018.