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PETITIONER: LADU RAM

       Vs.

RESPONDENT: GANESH LAL

DATE OF JUDGMENT:       12/08/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri

JUDGMENT:

V.N. KHARE, J.

     The  appellant  herein is the landlord who  brought  a suit  for  ejectment  against the respondent-tenant  on  the ground  of  bona fide need and default in making payment  of rent.  It is not disputed that the appellant in the suit did not  seek  any relief in respect of recovery of  arrears  of rent.   In  the plaint it was alleged that the rent was  due against  the  tenant since December, 1993.  The trial  court determined   the   provisional  rent   as   required   under sub-section (3) of Section 13 of Rajasthan Premises (Control of  Rent and Eviction) Act, 1950 (hereinafter referred to as the  Act)  which  the respondent-tenant  was  required  to deposit or pay the rent from December 1993 to January 1996 - amounting  to Rs.69,920/-, plus interest @ 6 per cent to the landlord.  The respondent-tenant challenged the order passed by  the trial court before the lower appellate court but the same  was dismissed.  Aggrieved, the tenant filed a revision petition before the High Court of Judicature of Rajasthan at Jaipur.   The High Court took the view that, in the  absence of  relief in the suit for recovery of arrears of rent,  the trial  court could not have determined the provisional  rent to  be  deposited by the tenant under section 13(3)  of  the Act.   Consequently, the revision was allowed and the  order of the court below was set aside.  Against this order of the High Court the landlord is in appeal before us.

     It  is urged on behalf of the appellants counsel that the  view taken by the High Court that, as the averments  of default  was not substantiated by the landlord by asking the relief  of  recovery of arrears of rent in the  plaint,  the ground  of  default was not properly set forth in the  suit, therefore,  the  court  was not required  to  determine  the amount  of rent, is patently erroneous.  After we heard  the matter,  we  found  merit in the submission.   In  order  to appreciate  the  arguments  it is necessary to set  out  the relevant provisions of the Act.

     13  (a) that the tenant has neither paid nor tendered

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the amount of rent due from him for six months.

     (3)  In a suit for eviction on the ground set forth in clause  (a) of sub-section (1);  with or without any of  the other  grounds  referred to in that sub-section,  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 of the issue, 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 this 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 sub-section,  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.

     (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, 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 sub-section (3).

     (5)  If  a tenant fails to deposit or pay  any  amount referred  to  in sub-section (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.

     (6)  If a tenant makes deposit or payment as  required by  sub-section  (4), no decree for eviction on  the  ground specified  in clause (a) of sub-section (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 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months.

     The  plaint  of  the  suit   filed  by  the  appellant

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discloses  that the suit was for ejectment of the respondent tenant  on  the  ground  of  default  in  payment  of  rent. According to the scheme of the Act, in such a suit the court is required to provisionally determine the amount of arrears of  rent to be deposited in the court or pay to the landlord by  the  tenant along with interest.  After the  provisional determination of the arrears of rent by the trial court, the tenant  is required to deposit the entire arrears of rent as determined  by the trial court within a particular period of time,  and further the tenant is required to deposit in  the court  or pay to the landlord monthly rent subsequent to the period  upto which the determination has been made.  In case the  tenant fails to comply with the order of the court, his defence  against the eviction is liable to be struck off and the  court  is to proceed with the hearing of the suit.   If the  tenant complies with the order, the tenant is  relieved of  the  decree  for eviction on the ground  of  default  in payment of rent.

     Now,  the  question that arises for consideration  is, whether  a  court in absence of any relief for  recovery  of arrears  of rent in a suit for eviction based on default  in payment  of  rent is precluded to determine the  provisional amount of rent which a tenant is required to deposit?.  If a suit for eviction is based on the ground set forth in clause (a)  of  sub-section  (1)  of Section 13  of  the  Act,  the landlord  must allege and prove three requirements,  namely, (i)  the tenant is in arrears of rent, (ii) such arrears  of rent  were due for more than six months and (iii) the tenant has  failed  to  pay such arrears of rent to  the  landlord. Excepting  these requirements there is no other  requirement of  law which a landlord is to plead and prove for obtaining decree  of eviction.  We, therefore, find that a landlord is not required in a suit for eviction based on default to seek an  additional relief for recovery of arrears of rent.  Even without such a relief a decree for eviction against a tenant can  be  passed by the court.  This aspect can  be  examined from  another  angle.   Under Order 2 sub-rule  (2)  C.P.C., where   a  plaintiff  omits  to   sue  in  respect  of,   or intentionally  relinquishes any portion of his claim, he  is debarred  afterwards  to  sue in respect of the  portion  so omitted  or  relinquished.   The only effect of  absence  of relief for recovery of arrears of rent in a suit is that the plaintiff  cannot  subsequently file a suit for recovery  of arrears  of  rent  for which he omits to sue in a  suit  for eviction  based on default in payment of rent.  Applying the said  principles  it  does not stand to reason  why  a  suit simplicitor  for eviction on the ground set forth in  clause (a)  of  sub-section  (1) of Section 13 of the  Act  is  not maintainable in absence of relief for recovery of arrears of rent.   A  perusal of sub-sections (3), (4), (5) and (6)  of Section  13  shows  that the determination  and  payment  of arrears  of  rent  by a tenant have been  provided  for  the benefit   of  tenant.   The   object  behind  the  aforesaid provisions  is that no decree of ejectment can be passed  in favour  of  landlord  where the eviction is  sought  on  the ground  of  default  in payment of arrears of  rent  if  the tenant  pays or deposits the arrears of rent within the time provided.   If the tenant deposits the arrears of rent,  not only that he can contest the suit filed by the landlord, but also can avoid decree for ejectment on the ground of default in  payment of rent.  Therefore, the tenant cannot  complain that  in  absence of any relief for recovery of  arrears  of rent  in a suit for eviction, the court is not competent  to provisionally  determine the arrears of rent which a  tenant

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is  required to deposit within a particular period of  time. The  relief  for ejectment on the ground of default  can  be granted  if it is found by the court that the tenant was  in arrears  of  rent as contemplated under section 13(1)(a)  of the Act and the tenant has further failed to comply with the provisions  of sub-sections (3) and (4) of Section 13 of the Act.   We  are,  therefore, of the view that in a  suit  for ejectment  of  a tenant on the ground set forth  in  Section 13(1)(a)  of the Act, the court is required to provisionally determine  the amount of rent which a tenant is required  to deposit  in order to escape from the decree of eviction even if no relief is prayed for, for recovery of arrears of rent. In  case the rent is deposited, the landlord is entitled  to get  the arrears of rent as the tenant has relieved  himself of the decree of eviction.

     For all these reasons we find that the judgment of the High Court suffers from serious legal infirmity and deserves to  be  set aside.  We, accordingly, set aside the order  of the  High  Court under appeal.  The appeal is  allowed  with costs, which we assess at Rs.1,000/-.