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PETITIONER: KULDEEP SINGH

       Vs.

RESPONDENT: GANPAT LAL & ANR.

DATE OF JUDGMENT05/12/1995

BENCH: KULDIP SINGH, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.C. AGRAWAL, J :      Leave granted.      This appeal  by the  tenant arises  out of  a suit  for eviction filed  by the  respondents under  the provisions of the Rajasthan  Premises (Control  of Rent  & Eviction)  Act, 1950 (hereinafter referred to as the ’Act’). It relates to a shop situated  at Udaipur  in Rajasthan.  Under  Section  13 (1)(a) of  the Act,  the tenant  can  be  evicted  from  the premises if  he has  neither paid nor tendered the amount of rent due from him for six months. Sub-Section (6) of Section 13 affords  pro- tection  to the tenant from eviction if the tenant deposits  in court or pays to the landlord the amount determined by the court in terms of Sub-sections (3) and (4) of Section  13 of  the Act. This protection is, however, not available if  the tenant  after having obtained such benefit in respect  of the  premises again  makes a  default in  the payment of  rent of  the said  premises for  six months. The respondent landlords  had filed a suit (Suit No.117 of 1981) against the  appellant for  his eviction  on the  ground  of default in  the payment of rent and protection under Section 13(6) of  the Act  was  given  to  the  appellant  in  those proceedings. On  December 20,  1982 the  respondents filed a second suit  (Suit No.169  of 1983)  which has given rise to this appeal  in the  court of  District Judge at Udaipur for the eviction  of the  appellant on  the ground  that he  has defaulted for  the second  time in payment of rent, inasmuch as he had not paid the rent for six months from May 1, 1982. The said  suit was  contested by  the appellant,  who denied that he  had committed  a second  default in payment of rent for six  months. The  case of  the appellant was that he had paid the  rent for  five months from May, 1982 to September, 1982 in cash to the respondents and 10 days later on October 21, 1982 when he went to them for collecting the receipt for the said  payment, they refused to give the said receipt and returned the  amount which  was paid by the appellant to the respondents by  way  of  rent.  The  appellant  claims  that thereupon on  October 22,  1982, he submitted an application under Section  19-A of  the Act  in  the  court  of  Munsiff (South), Udaipur  narrating the  aforesaid facts and seeking

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permission of  the court  to deposit the rent for the months of May  to  October,  1982  in  the  court  and  that  after obtaining the  permission of  the court,  the  appellant  on October 29,  1982 deposited  the sum  of Rs.  3,600/- in the court by  way of  rent for  the period  from  May,  1982  to October, 1982  by tender No. 1711 dated October 29, 1982 and that the  notice of  application submitted  by the appellant under Section  19-A of  the  Act  had  been  issued  to  the respondents. The  said suit of the respondents was dismissed by the  Additional  District  Judge  No.1.  Udaipur  by  his judgment dated  July 2,  1987 on the view that the appellant could not  be held  to be a defaulter in the payment of rent since he  had deposited the rent for the months of May, 1982 to October,  1982 in  the court on 29th October, 1982 before the rent  for six  months fell due. The respondents filed an appeal against the said judgment of the Addl. District Judge in the  High Court of Rajasthan. The said appeal was allowed by a  learned Single Judge of the High Court by his judgment dated January 25, 1989. The learned Judge, after considering the evidence  adduced by  the appellant,  has held  that his plea about payment of rent personally to the respondents had no legs  to stand.  The learned  Judge further held that the deposit by  the appellant in the court under Section 19-A of the Act  was not  a valid  valid deposit  and the  appellant could not claim any benefit on the basis of the said deposit under Section 19-A inasmuch as the appellant had not adopted the procedure as laid down in Sub-section (3) of Section 19- A before  making the said deposit and that the appellant had committed a  second default  in  payment  of  rent  for  six months. The  learned Single  Judge rejected  the  contention urged on  behalf of  the appellant  that the cause of action had not  arisen on  November 1,1982 because the rent for the month of  October could  have been  paid by  November 15 and that on  November 1,  1982 the rent for five months only was due and  not for  six months.  The learned  single Judge has held that  the rent  for a  particular month  becomes due as soon as  the month  ends and under the provisions of the Act it was  made payable  by a particular date, i.e. the 15th of next following month, but it was only a facility provided to the tenant to pay the rent by that date and it does not mean that the rent for the month of October had not become due on November 1,1982.  The special  appeal filed by the appellant against the  said judgment  of the  learned Single Judge was dismissed by  the Division  Bench of  the High  Court by the impugned judgment dated March 8, 1989. Hence, this appeal.      Shri  Rajinder   Sachar,  the  learned  Senior  Counsel appearing for  the  appellant,  has,  in  the  first  place, invited out  attention to  para 6 of the plaint, wherein the respondents have stated:      "6. That  the cause  of action  for  the      suit arose on 1.11.1982 when the rent of      six months became outstanding." The submission  of Shri Sachar is that in view of Clause (e) of Rule  1 of  Order VII  of the Code of Civil Procedure, it was incumbent  upon the respondents to set out in the plaint the facts constituting the cause of action and when it arose and as  per the  said requirement the respondents, in para 6 of the plaint, have indicated that the cause of action arose on November  1,1982. Shri Sachar has submitted that the said statement in  para 6  of the  plaint is  not correct and has pointed out  that under  Sub-section (1)  of Section 19-A of the Act, it is provided:-      "(1) Subject  to the  provisions of this      section, every  tenant  shall  pay  rent      within the  time fixed by contract or in

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    the absence  of such  contract,  by  the      fifteenth  day   of   the   month   next      following the  month  for  which  it  is      payable." According to  Shri Sachar,  since  no  time  was  fixed  for payment of  rent by  contract, the  rent was  payable by the appellant by  the 15th  day of  the month next following the month for which it was payable and the rent for the month of October, 1982  was therefore,  payable by  November 15, 1982 and that  on November 1, 1982 the rent for October, 1982 was not due and therefore, it could not be said that on November 1, 1982, when the cause of action is claimed to have arisen, the appellant  was in  default of  payment of  rent for  six month. It  is no  doubt true that in view of Sub-section (1) of Section   19-A  of the  Act, since  there was no contract prescribing the  date for  payment of  rent,  the  appellant could pay  the rent  for the  month of  October,  1982  till November 15,  1982 and the cause of action for filing a suit on the  ground of  default for  the payment  of rent for the months of  May, 1982  to October,  1982 could  arise only on November 16,  1982 and  to that  extent and the statement in the plaint  that the  cause of  action arose  on November 1, 1982 is  not correct.  But  that  does  not  mean  that  the respondents must  be non-suited  on this  ground. The object underlying Order  VII Rule  (1) (e)  which requires that the plaint  shall   contain  the  particulars  about  the  facts constituting the  cause of  action and  when it arose, is to enable the  court to  find out  whether the plaint discloses the cause  of action  because the  plaint is  liable  to  be rejected under Order VII Rule 11 CPC if it does not disclose the cause of action. The purpose behind the requirement that the plaint should indicate when the cause of action arose is to help  the court  in ascertaining  whether the suit is not barred by limitation. Any error on the part of the plaintiff in indicating  the date  on which  the cause of action arose would be  of little  consequence if  the cause of action had arisen on  the date on which the suit was filed and the suit was within  limitation from  the said  date.  The  error  in mentioning the  date on which the cause of action had arisen in the  plaint in  such a  case  would  not  disentitle  the plaintiff from seeking relief from the court in the suit. In the instant case, the suit was filed on December 20, 1982 on which date admittedly the rent for six months i.e. from May, 1982 to October, 1982 had fallen due. Moreover, in para 7 of the plaint,  while indicating  the valuation of the suit for the purpose  of court  fee, the respondents have stated that there  was   outstanding  rent  of  7  months  amounting  to Rs.4,200/- and  court fee  was paid  on the  said amount  of outstanding rent.  Merely because  in para  6 of the plaint, the respondents  have stated  that the cause of action arose on November  1, 1982  would not,  in our opinion, disentitle the respondents from seeking relief of eviction since as per the plaint,  on the  date of the filing of the suit the rent for seven  months (May,  1982 to  November, 1982) had fallen due. The  first contention  urged  by  Shri  Sachar  cannot, therefore be accepted.      The next contention urged by Shri Sachar relates to the deposit of  the sum  of Rs.3,600/-  by the  appellant in the court on  29th October,  1982 under Section 19-A of the Act. For that  purpose, it  is necessary  to  take  note  of  the relevant provisions contained in Sub-sections (3) and (4) of Section 19-A, which provide as under:      "(3) A  tenant may,  apart from personal      payment of  rent to  the landlord, remit      or deposit  rent by any of the following

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    methods-      (a) he  may remit the amount of any rent      due from  him by  postal money  order at      the ordinary address of the landlord; or      (b)  he   may,  by  notice  in  writing,      require the  landlord to  specify within      ten days from the date of receipt of the      notice by the latter, a bank and account      number  into   which  the  rent  may  be      deposited by the tenant to the credit of      the landlord.  If the landlord specifies      a bank  and account  number, the  tenant      shall deposit  the rent in such bank and      account number  and  shall  continue  to      deposit  in   it  any   rent  which  may      subsequently become  due in  respect  of      the premises:           Provided that  such bank  shall  be      one situated  in the  city  or  town  in      which the premises is situated :           Provided further  that it  shall be      open to  the landlord  to  specify  from      time to  time by a written notice to the      tenant  and   subject  to   the  proviso      aforesaid, a bank different from the one      already  specified  by  him  under  this      clause;      (c) Where  he has  remitted the  rent by      postal money  order under clause (a) and      the money  order is received back by him      under a postal endorsement of refusal or      unfound and  where the landlord does not      specify a  bank and account number under      clause (b)  or where  there is bona fide      doubt as  to the  person or  persons  to      whom the rent is payable, the tenant may      deposit such  rent with the court within      fifteen days of the expiry of the period      of ten  days referred  to in  clause (b)      and in  the case of such bona fide doubt      as aforesaid, within fifteen days of the      time referred  to in sub-section (1) and      further continue  to  deposit  with  the      court any  rent which  may  subsequently      become due in respect of the premises.      (4) For  the purpose  of clause  (a)  of      sub-section (1)  of section 13, a tenant      shall be deemed to have paid or tendered      the amount  of any rent due from him, if      he has  paid, remitted  or deposited the      amount of  rent by  any of  the  methods      specified in sub-section (3)." Under Sub-section  (3), apart  from personal payment of rent to the  landlord, three  other modes  have been  prescribed, namely, (i) remittance by postal money order at the ordinary address of the landlord, (ii) deposit in the bank account of the landlord  and (iii)  deposit in court in cases where the money  order   has  been  received  back  under  the  postal endorsement of refusal or unfound or where the landlord does not specify the bank account number or where there is a bona fide doubt  that the  person or  persons to whom the rent is payable. Under  Sub-section (4),  a legal fiction is created and the tenant is deemed to have paid or tendered the amount of rent  due from him and is not to be treated in default of payment of  rent if  he has  paid, remitted or deposited the

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amount of rent by any of the three methods specified in Sub- section (3).      The High Court has held that in view of the language of Clause (c)  of Sub-section (3) of Section 19-A, a deposit in the court  can be  made only  if the conditions laid down in clause (c)  are fulfilled and if the said conditions are not fulfilled, the  deposit would  not be  treated  as  a  valid deposit under  Clause (c) of Sub-section (3) of Section 19-A and would  not entitle  the tenant  to avail  the benefit of Sub-section (4)  of Section  19-A. It  has been held that in the instant  case, it  is not the case of the appellant that he had  remitted the  amount of  rent due from him by postal money order and the same had been received back by him under the postal  endorsement of refusal or unfound, nor is it the case of  the appellant  that he had asked the respondents to indicate the  bank account  number in  which the rent may be deposited by  the appellant to the credit of the respondents and the  respondents had  failed to  specify  the  bank  and account number  and that  it is  also not  the case  of  the appellant that  there was a bona fide doubt as to the person or persons to whom the rent was payable.      Shri  Sachar  does  not  dispute  that  the  conditions prescribed in  clause (c) of Sub-Section (3) of Section 19-A for the  purpose of  making the  deposit in  court  are  not fulfilled in  the  present  case.  The  submission  of  Shri Sachar, however,  is that  since the appellant had deposited in court  the rent  for the  months of May, 1982 to October, 1982 on  29th October,  1982, before  the said  rent for six months fell  due, he  cannot be  held to  be a  defaulter in payment of  rent for  six months  and a  decree for eviction under Section  13 (1)  (a) could  not be passed. Shri Sachar has, in this connection, placed reliance on the decisions of this Court  in Duli Chand vs. Maman Chand 1980(1) S.C.C. 246 and Sheo Narain vs. Sher Singh 1980 (1) S.C.R.836.      We have  carefully perused  the  said  judgments.  Both these judgments relate to the proviso to Section 13(2)(i) of the East  Punjab Urban  Rent  Restriction  Act,  1949  which affords protection  against eviction of the tenant if on the first hearing  on the  application for  ejectment after  due service he  pays or tenders the arrears of rent and interest at six  per cent per annum on such arrears together with the cost of  application assessed  by the  Controller.  In  both these cases,  the tenant had deposited the amount of rent in the Court  in which  the ejectment  proceedings were pending prior to  the first  hearing of  the application  and on the first hearing  the landlord  was made  aware of the deposit. This Court  has held that even though there was no provision in the Act for deposit of the rent in Court the said deposit could be  treated as  compliance of  the requirements of the proviso to  Section 13  (2)(i) of the East Punjab Urban Rent Restriction Act,  1949 and  the tenant was entitled to avail the benefit of the said proviso.      In the  present case, the appellant is seeking to avail the benefit  of the  legal fiction  under Section 19-A(4) of the Act.  It is  settled law  that a  legal fiction is to be limited to  the purpose  for which  it is created and should not be  extended beyond  that legitimate  field. [See  : The Bengal Immunity  Company Limited  v. The  State of  Bihar  & Ors., 1955  (2) SCR  603 at p. 646]. The appellant can avail the benefit  of Section 19-A(4) if the deposit of Rs.3,600/- made by  him in  the Court  of Munsiff  (South), Udaipur, on October 29, 1982, by way of rent for the months of May, 1982 to October,  1982, can be treated as a payment under Section 19-A (3)(C) so as to enable the appellant to say that he was not in  default in payment of rent. Under Section 19-A(3)(c)

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the tenant  can deposit  the rent  in the  Court only if the conditions laid down in the said provision are satisfied. It is the  admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by  the respondent in Court on October 29, 1982 cannot, therefore, be  regarded as a deposit made in accordance with clause (c)  of Sub-section  (3)  of  Section  19-A  and  the appellant cannot  avail the protection of Sub-section (4) of Section 19-A  and he  must be held to have committed default in payment  of rent  for the months of May, 1982 to October, 1982. This  means that  the decree  for  eviction  has  been rightly passed  against the  appellant on account of default in payment of rent for the period of six months.      For the reasons aforementioned, the appeal fails and it is accordingly dismissed. But in the circumstances. there is no order as to costs.