Govind Ram vs Smt. Raji Bai And Anr.

on 10 August, 1977

Rajasthan High Court Rajasthan High Court Govind Ram vs Smt. Raji Bai And Anr. on 10 August, 1977 Equivalent citations: AIR 1979 Raj 55, 1977 WLN 372 Author: D Gupta Bench: D Gupta ORDER D.P. Gupta, J. 1. This is a revision application against the order passed by the Civil Judge, Chittorgarh, dated March 8, 1977 in a suit for ejectment and recovery of arrears of rent The rent for the month of Jeth Samwat 2033 was due and payable on June 13, 1976 and the same should have been paid to the plaintiff-landlords or deposited in court, within 15 days of the aforesaid date, under Section 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). The rent for the month of Asad Samwat 2033 fell due on July 12, 1976 and was similarly payable within 15 days thereof. 2. On July 17, 1976 the plaintiffs filed an application in the trial court praying that the defence of the defendant may be struck off under Sub-section (6) of Section 13 of the Act, as the rent for the months of Jeth and Asad Samwat 2033 had not been paid by him within the time allowed by law. On July 24, 1976 the defendant-applicant deposited two months' rent along with an application purporting to have been filed under Section 19-A of the Act. The case of the defendant was that he had paid the rent for the month of Jeth Samwat 2033 in cash to one of the plaintiffs on June 14, 1976 and although he promised to give a receipt for the same on the next day, yet the plaintiff did not give any receipt for the said amount and as such the rent for both the months of Jeth and Asad 2033 was deposited in court on July 24, 1976. The defendant-applicant also filed a reply on August 11, 1976 to the application of the plaintiffs dated July 17, 1976 under Section 13 (6) of the Act and took an identical defence therein. An affidavit was also filed along with the aforesaid reply dated August 11, 1976. The plaintiff filed an affidavit denying the receipt of any amount in cash on June 14, 1976 from the defendant-applicant by way of rent for the month of Jeth Samwat 2033. 3. So far as the payment of rent for the month of Asad Samwat 2033 is concerned, there is no dispute between the parties that the same was deposited within 15 days of its falling due The only argument advanced by the learned counsel for the plaintiff-opposite parties in that respect is that the defendant had deposited the amount of rent for two months on July 24, 1976 under Section 19-A and not under Section 13 (4) of the Act. However as the amount was deposited by the defendant-tenant in the very suit for ejectment and recovery of arrears of rent, it must be construed to have been deposited under the provisions of Section 13 (4) of the Act. It is settled law that if an application has been presented before a proper forum, to which such an application did lie in accordance with law then that application shall not be rendered invalid merely on the ground that the said application purported to have been filed under a wrong provision of law, but it should be construed to have been presented under the appropriate provisions of law in which it did lie before that forum. It cannot be disputed that no payment under Section 19-A could be made while the suit for ejectment and recovery of arrears of rent was pending in the court between the same parties. Therefore, there could be no difficulty for construing the payment made by the defendant-applicant on July 24, 1976 under Section 13 (4) of the Act, although it was purported to have been made under Section 19-A of the Act. 4. But so far as the payment relating to the month of Jeth Samwat 2033 is concerned, it cannot be argued that the payment made on July 24, 1976 can by any stretch of imagination be said to have been made within the time prescribed by law. The rent for the month of Jeth Samwat 2033 became due, as mentioned earlier, on June 13, 1976 and the same should have been paid to the plaintiff-opposite parties within 15 days thereof or should have been deposited in the trial court within the aforesaid period. The deposit which was made by the defendant on July 24, 1976 was admittedly beyond the period of 15 days after the rent for the month of Jeth Samwat 2033 fell due. So far as the alleged payment of rent for the aforesaid month in cash on June 24, is
Indian Kanoon - http://indiankanoon.org/doc/1807507/ 1

Govind Ram vs Smt. Raji Bai And Anr. on 10 August, 1977

concerned, both the courts have consistently held that such payment was not established. The two courts below have considered in this respect the affidavits filed by both the parties, as also the conduct of the defendant applicant It is difficult to accept the contention of the defendant that he paid the rent for the month of Jeth Samwat 2033 on June 14, 1976 in cash without obtaining any receipt, while the parties were litigating in a court of law and the very matter of ejectment and recovery of rent was in dispute between them and their relations could not be said to be very friendly or cordial during the pendency of such a litigation. It also does not stand to reason that the defendant would have sat silently for such a long time and would not have submitted any application before the trial court complaining about it, if the payment would have actually been made by him and the plaintiffs would have refused to give a receipt in respect of such payment. The conduct of the defendant in making payment of two months' rent, including that for the month of Jeth Samwat 2033 on July 24, 1976, after the plaintiff had already moved an application for striking off the defence of the defendant under Section 13 (6) of the Act on July 17, 1976 is also not in conformity with his allegation that he had made payment of the rent for the month of Jeth Samwat 2033 in cash to the plaintiff on June 14, 1976. 5. Learned counsel for the applicant, however, laid great stress on the observation of the two courts below that the trial court had no authority to enquire into a disputed payment under Section 13 (4) of the Act, and contended that the same was not in accordance with law. In my view this observation made by the two courts below does not lay down a correct proposition of law. The provisions of Section 13 (4) of the Act require the defendant-tenant to make payment of rent within 15 days of its falling due or to deposit the same in the court within the aforesaid period. In case the defendant alleges that the payment has been made by him within the aforesaid time prescribed by law and such payment is disputed by the plaintiff-landlord, then it is the duty of the trial court to make an enquiry into the question and decide as to whether such payment was actually made or not. The provision made in Section 13 (6) of the Act regarding striking off the defence of a defendant in case even one month's rent is not paid within the time prescribed by law is a very stringent provision and the defence of a defendant-tenant who bona fide alleges payment and is prepared to prove the same cannot be struck off without making a proper enquiry into the allegation of payment, in my view, the two courts below were not right in holding that only admitted payments could be taken into consideration for the purposes of Section 13 (6) of the Act. 6. However, the question of alleged payment has also been considered in the present case by both the courts below. The defendant did not produce any extract copy of an entry of his Bahi along with his affidavit dated August 11, 1976 nor he produced any such entry before the trial court nor he sought an opportunity to produce any such entry of his Bahi or any other evidence before the trial court. He no doubt sought an opportunity before the appellate court, but it was merely an afterthought and no plausible reason has been assigned for not producing an extract copy of the entry of his Bahi before the trial court, On the basis of the material on record both the courts below have come to the conclusion that the rent for the month of Jeth Samwat 2033 was not paid in cash on June 14, 1976 and the said finding appears to be well founded. In face of this finding, I see no reason to interfere with the order passed by the learned Civil Judge. Chittorgarh. 7. This revision application is accordingly dismissed. The parties are left to bear their own costs.

Indian Kanoon - http://indiankanoon.org/doc/1807507/