Full Judgment Text
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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
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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
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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
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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
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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
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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
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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:
. . – (1)
“13 Eviction of tenants
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
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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,
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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
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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.