Ladu Ram v. Ganesh Lal
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
C 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 (P,ereinafter referred to as 'the Act') which the
D 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
E :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.
F It is urged on behalf of the appellant's counsel that t~e 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
G 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 the amount of
rent due from him for six months.
H (3) In a suit for eviction on the ground set forth in clause (a) of sub-
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LADU RAM v. GANESH LAL [V.N. KHARE, J.J 393
section ( l ); with or without any of the other grounds referred to in A
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 B
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 C
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. D
(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 E
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 G
(4), no decree for eviction on the ground specified in clause (a) of
sub-section (I) 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 H
394 SUPREME COURT REPORTS (19991 SUPP. I S.C.R.
A default in the payment of rent of that accommodation for six months."
The plaint of the suit filed by the appellant 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
B in the court or paid 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
C 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.
D · Now, the question that arises for consideration is, whether a court in
absence of any relief for recovery of arrears of r_ent 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 (I) of Section
E 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 dec;ree of eviction.
We, therefore, find that a landlord is not required in a suit for eviction based
F 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
G 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
H Act is not maintainable in absence of relief for recovery of arrears of rent. A
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LADU .RAM v. GANESH LAL [V.N KHARE, J.j
perusal of sub-sections (3), (4), (5) and (6) of Stction 13 shows that the A
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 B
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 gr"ound of default in
payment of rent. Therefore, tht: Lenanc cannot compla111 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 is
required to deposit within a particular period of time. The relief for ejectment C
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(l)(a) of the Act, the court is required to provisionally determine the amount D
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 rerit
as the tenant has relieved himself of the decree of eviction.
For all these reasons Wt: 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.
N.J. Appeal allowed. F