Holding

Deposits of rent made in court during the pendency of the landlord's appeal satisfy Section 13(4) and constitute valid payment, so the tenant is not in default and the second eviction suit must be dismissed.

Summary

In the first suit, the tenant defaulted on rent but deposited the arrears in court under Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and the trial court denied eviction. The landlord appealed, withdrew the appeal, and meanwhile filed a second suit alleging a new default for the period during which the first appeal was pending. The tenant continued to deposit rent in court during that period. The trial court in the second suit held the deposits were not valid payment under Section 19-A and decreed eviction; the appellate court reversed, but the High Court restored the eviction decree. The Supreme Court held that deposits made in court during the pendency of an appeal satisfy the statutory requirement of Section 13(4), constitute valid payment/tender, and therefore the tenant was not in default for that period. Consequently, the landlord had no cause of action for the second suit, which was dismissed. The appeal was allowed and the High Court decree set aside.

Issues considered

Whether a tenant's deposit of rent in court during the pendency of the landlord's appeal constitutes a valid payment or tender under Section 19-A of the Act.
Whether the tenant can be deemed to have defaulted for the period covered by the deposit, thereby giving rise to a cause of action for a second eviction suit.
Whether compliance with Section 13(4) of the Act must continue during the pendency of an appeal and affect the landlord's right to seek eviction.
Whether the landlord may file a separate eviction suit for the period during which the appeal is pending.

Legislation cited

Rajasthan Premises (Control of Rent and Eviction) Act, 1950s. 13(1)(a), s. 13(3), s. 13(4), s. 13(5), s. 13(6), s. 19-A

Subjects

rent controlevictiondefaultdeposit of rentappealSection 13Section 19-Alandlord-tenantrelief against eviction

Judgment

A
SHIV DUIT JADIY A
V.

GANGA DEVI

FEBRUARY 20, 2002
B
[R.C. LAHOTI AND RUMA PAL, JJ.]

Rent Control and Eviction

Rajasthan Premises (Control of Rent and Eviction) Act, 1950-Sections C
13 and 19A-Subsequent suit for eviction of tenant for subsequent default in
payment ofrent-However, tenant continued to deposit rent in the court during
the pendency oflandlord's appeal against decree in first suit--Whether deposit
of rent valid payment or tender-Held, yes-Tenant is not defaulter for that
particular period since he continued to deposit rent in the court being one of D
the modes prescribed by Section 19A.

Respondent-landlord filed suit (first suit) for recovery of rent and
eviction on the ground of default in payment of rent. Trial Court refused
decree for eviction since appellant-tenant deposited rent during the pendency
of the suit complying with S.13(4) of the Rajasthan Premises (Control of Rent E
& Eviction) Act, 1950. Aggrieved, respondent-landlord filed first appeal
contending that since the tenant did not strictly comply with the provisions
ofS.13(4) of the Act, trial Court should have passed decree for eviction. During
the pendency of the first appeal, tenant continued to deposit rent in the Court
month by month for the entire period of pendency of the first appeal. p
Meanwhile, before the appeal was withdrawn, respondent-landlord filed
second suit for eviction on the ground of subsequent default in payment of
rent for a particular period. Period of second default providing cause of action
to the landlord in second suit was covered by the pi:riod during which the
first appeal filed by the appellant was pending. Trial Court in the second suit
held that after the decision in the first suit, the tenant ought to have paid or G
tendered rent to the landlord in accordance with S.19-A of the Act and
payment by way of deposit made by the tenant in the court during the
pendency of the first appeal could not come to his rescue and passed decree
for eviction. Appellate court set aside the decree. However, High Court

1167 H
1168 SUPREME COURT REPORTS [2002] I S.C.R.

A restored the decree passed by the Trial Court. Hence the present appeal.
The question that arose for consideration was whether the tenant can
be said to have committed default in paying or tendering the rent to the
landlord for a particular period even though he had deposited such rent in
the Court during the pendency of the landlord's appeal against the decree
B passed in the first suit and whether the amount deposited by the tenant, during
the pendency of the landlord's appeal against decree in the first suit, can be
held to be a valid payment or tender.

Allowing the appeal, the Court

C HELD : The tenant, in order to escape the rigour of his defence against
eviction being struck out and to avail the benefit of relief against eviction under
S. 13(6), of the Rajasthan Premises (Control of Rent and Eviction) Act or, to
be more accurate, to see such relief as was allowed to him by the trial court
being upheld by the Appellate Court, shall have to satisfy the Appellate Court
D also of his compliance with sub-section (4) upto the date of judgment by the
Appellate Court. In the instant case, since the tenant was continuing to deposit
the rent in the Court during the pendency of the appeal preferred by the
landlord' against the decree in the first suit, there was no occasion for the
landlord to hold the tenant a defaulter for that particular period and also no
cause of action accrued to the landlord to file a second suit for eviction. The
E tenant was not required to pay the same rent twice over personally to the
landlord or to tender the same in one of the modes prescribed by S.19-A. The
question of the payment, remittance of deposit of rent by tenant in one of the
modes provided by S.I 9-A could have arisen if there was no suit or appeal
pending between the landlord and the tenant and therein the tenant was not
F required to deposit, or could not have made deposit of, rent in Court.
[1173-C-Ff

Kamruddin v. Wahid Ali, (1987) 1 RLR 290, disapproved.

CIVIL APPELLATE JURlSDlCflON : Ci~il Appeal No. 4993 of
G 1997.

From the Judgment and Order dated 27.2.97 of the Rajasthan High
Court in S.B.C.S.A. No. 25 of 1994.
..
A.B. Rohtagi, Anil Hooda, M.S. Bakshi and H1rinder Mohan Singh
for the Appellant.
H
SHIV DUTT JADIY Av. GANGA DEVI 1169

Aruneshwar Gupta for the Respondent. A
The Judgment of the Court was delivered by

·. This is a tenant's appeal, putting in issue the judgment and decree
of the High Court, directing the tenant to be evicted from the suit
accommodation - a shop. B

The facts necessary for decision in this appeal are not in controversy.
The suit shop is owned by the respondent and is held by the tenant-
appellant on a monthly rent of Rs. 22. Earlier, there was a default in
payment of rent by the tenant, for which, on the ground available under
Clause (a) of sub-section (1) Section 13 of Rajasthan Premises (Control C
of Rent and Eviction) Act, 1950 (hereinafter 'the Act' for short), the
landlord-respondent had filed a suit for recovery of rent and for eviction.
Let this suit be referred to as 'first suit'. During the pendency of this suit,
the tenant complied with sub-section (4) of Section 13 by making the
deposit of rent, as contemplated therein. On 14.11.1983, the Trial Court D
refused to pass a decree for eviction against the tenant, holding that although
the tenant had committed a default in payment of rent before the institution
of suit, but, in view of his having complied with the provisions of sub-
section (4) of Section 13, he was entitled to benefit of relief against
eviction. The landlord preferred an appeal. We have perused the contents
of memo of appeal made available for our perusal by the learned counsel E
for the respondent. It shows that before the Appellate Court, the landlord
had continued to press for a decree for eviction being passed against the
tenant under Section 13( I )(a) of the Act. The grievance revised by the
landlord was that the tenant had not strictly complied with the provisions
of sub-section ( 4) and, therefore, the Trial Court should have directed the F
defence against eviction to be struck out under sub-section (5) and then
passed a decree for eviction, holding the tenant not entitled to the benefit
of sub-section (6). The occasion for deciding this appeal on merits did not
arise inasmuch as, on 12.04.1993, the landlord did not press for the decision
of appeal on merits and, instead, sought for withdrawal of the appeal,
which was permitted by the Appellate Court. G

On 21.08.1984, much before the withdrawal of the appeal as abovestated,
the landlord had filed a second suit against the tenant, praying for a
decree of eviction, alleging that tenant had committed a second default by
not paying or tendering the rent to the landlord for the period between 5th H
1170 St:PREME COURT REPORTS [2002 J I S.C.R.

A N:ivember, 1983 and 28th July, 1984. Admittedly the period of second
default alleged as providing cause of action to the landlord in the second
suit for eviction, was covered by the period during which the first appeal
preferred by the appellant against the decree of the Trial Court passed in
the first suit was pending. It is also admitted that during the pendency of
that appeal, the tenant had continued to deposit the rent in the Court
B month by month, as contemplated by sub-section (4) of Section 13 for the
entire period during which the appeal was pending. The Trial Court in the
second suit, formed an opinion that after the decision by the Trial Court
in the first suit, the tenant ought to have paid or tendered rent to the
landlord in accordance with Section 19-A of the Act and any payment by
C way of deposit made by the tenant in the Court during the pendency of
the appeal against the decree in first suit could not come to his rescue, as
it was not a payment or tender, as contemplated by Section 19-A of the
Act. The Trial Court, therefore, directed the second suit for eviction to be
decreed by holding the tenant guilty of second default within the meaning
of proviso to sub-section (6) of Section 13. The decree was reversed in
D appeal preferred by the tenant. However, the High Court has, by its impugned
judgment and decree, set aside the decree of the Appellate Court and
restored the decree passed by the Trial Court.

The question arising for decision in this appeal is : whether the
E tenant can be said to have committed default in paying or tendering the
rent to the landlord for the period 05.11.1983 to 28.07 .1984 even though
he had deposited such rent in the Court during the pendency of the landlord's
appeal against the decree passed in the first suit? Answer to this question
would depend on answer to another question - whether the amount deposited
by the tenant, during the pendency of the landlord's appeal against decree
F in the first suit, can be held to be a valid payment of tender?

The relevant parts of Section 13 are as und~r :

"13. Eviction of tenants:-

(I) Notwithstanding anything contained in any law or contract,
G no Court shall pas any decrees or make any order, in favour of a
landlord, whether in execution of a decree or otherwise, evicting the
knant (xxx) so long as he is ready and willing to pay rent therefore
to the full extent allowable by this Act, unless it is satisfied.

(a) that the kuant has neither paid nor tendered the amount of
H
•

SHIV DUTT JADIY Av. GANGA DEVI 1171
rent due from him for six months. A
(b) to (h) ......

. (2) ..........

(3) In a suit for eviction on the ground set forth in clause (a) of
sub-section (I), with or without any of the other grounds referred to B
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 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.
c
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 D
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. E
(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, F
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). G
(5) If a tenant fails to deposit or pay any am_ount referred to in
sub-section (4) [xxx] 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.
H
1172 SUPREME COURT REPORTS (2002) I S.C.R.

A (6) If a tenant make deposit or payment as required by sub-
section ( 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
B 13-A in respect of any such accommodation if te again makes a
default in the payment of rent of that accommodation for six months."

A perusal of Section 13 goes to show that failure of the tenant to pay
or tender the rent due from him for a period of six months provides a ground
for his eviction. On a suit for such relief being instituted by landlord, the
C tenant must deposit in Court or pay to the landlord the arrears of rent on the
first date of hearing or within 15 days from the date of determination by the
Court of provisional amount, or within the extended time, and thereafter
continue to deposit in Court or pay to the landlord month by month the
monthly rent falling due for the subsequent period, as contemplated by sub-
D section (3), and sub-section (4) of Section 13. Failure to make deposit or
payment consistently with sub-section (4) may entail defence against eviction
being struck out. However, compliance with sub-section (4) confers on the
tenant an immunity from eviction on the ground specified in Clause (a) of
sub-section (I ). Such immunity is one time benefit given to the tenant. If the
tenant commits a default for a second time, having earned once earlier an
E immunity from eviction within the meaning of sub-section ( 6), then, on a
subsequent suit being filed, the tenant cannot once again escape the decree
for eviction inspite of compliance with the provisions of sub-section (4).

On a suit for eviction being instituted, compliance with sub-section (4)
F by the tenant as contemplated by Section 13 is in "Court". The legislature has
not chosen to use words "Trial Court" in the framing of Section 13. Ordinarily,
an appeal is a continuation of suit. The tenant is bound to comply with
provisions of sub-section (4) if the claim for eviction on having been denied
by the Trial Court is pursued in appeal by the landlord. lnspite of a decree
for eviction having been refused by the Trial Court, the Appellate Court may
G still, in an appeal preferred by the landlord, pass a decree for eviction. On the
date of the passing of the decree, the Appellate Court shall have to see, in
view of the obligation cast on it by sub-section (6), whether the tenant had
made deposit or payment, as required by sub-section (4). Any view to the
contrary may result in creating an incongruous or inequitable situation. If it
H was to be held that on decision by the Trial Court, the obligation of the tenant
SHIV DUTT JADIY Av. GANGA DEVI 1173
to pay or tender the rent, in the manner prescribed by sub-section (4) comes A
to an end, then, although the landlord is still pursuing his claim for eviction
before the Appellate Court and the decision of appeal may take its own time,
the need on the part of the tenant to pay or tender the rent to the landlord or
deposit the same in the Court shall stand dispensed with. We do not think that
Section 13 contemplates such a situation. The object behind enacting Section B
13 is that pendency of litigation should not be used by tenant as an excuse
for suspending his obligation to regularly pay the rent and the landlord should
not be compelled to file separate proceedings for recovery of rent falling due
during the pendency of already filed eviction proceedings.

In the case before us, the issue of the tenant having committed a default c
and hence having incurred liability for eviction was being pursued by the
landlord in appeal. The question whether the tenant's defence against eviction
was liable to the struck out or not, was an issue open before the Appellate
Court and was being clearly pressed by the landlord for decision. The tenant,
in order to escape the rigour of his defence against eviction being struck out
and to avail the benefit of relief against eviction under sub-section (6), or, to D
be more accurate, to see such relief as was allowed to him by the Trial Court
being upheld by the Appellate Court, shall have to satisfy the Appellate
.r Court also of his compliance with sub-section. (4) upto the date of judgment
by the Appellate Court. The tenant was, therefore, continuing to deposit the
r rent during the pendency of the appeal. There was no occasion for the landlord E
to hold the tenant a defaulter for the period 05.11.1983 to 28.07.1984 and file
a second suit for eviction in view of the tenant continuing to deposit the rent
in the appeal preferred by the landlord against the decree in the first suit. The
tenant was not required to pay the same rent twice over personally to the
landlord or to tender the same in one of the modes prescribed by Section 19-
A. The question of payment, remittance or deposit of rent by tenant in one F
of the modes provided by Section 19-A could have arisen if there was no suit
or appeal pending between the landlord and the tenant and therein the tenant
was not required to deposit, or could not have made deposit of, rent in Court.
The tenant, In the case before us, was not in default for the period 05.11.1983
to 28.07 .1984 and no cause of action arose to the landlord for filing the
G
second suit for eviction. The suit was entirely mis-conceived. The First
-- .;
Appellate Court deciding appeal in the second suit was, therefore, right in
reversing the decree of the Trial Court and directing the second suit to be
dismissed. The High Court has clearly erred in law in upholding availability
of ground under Section 13(1)(a) of the Act to the landlord in the second suit.
H
1174 SUPREME COlJRT REPORTS [2002] I S.C.R.

A The appeal is, therefore, allowed. The judgment and decree of the High
Court is set aside. The suit for eviction filed by the landlord is directed to be
dismissed. Costs to be borne as incurred.

Before parting, we would like to sound a note of caution. During the
B course of hearing a decision by Rajasthan High Court in Kamruddin v. Wahid
Ali, (1987) RLR 290 was brought to our notice wherein the view taken by
the High Court is that compliance with Section 13 of the Act need not be
made during the pendency of appeal. We have taken a view to the contrary.
To obviate the unforeseen difficulty which the tenants are likely to face in
those matters which may be pending in appeal we would like to clarify that
-
C before striking out the defence under sub-section (5) or denying the benefit
of relief against eviction under sub-section (6), for failure to comply with
sub-section (4), of Section 13 of the Act during the pendency of appeal, the
Appellate Court shall afford the tenant a reasonable opportunity for compliance,
on this decision coming to or being brought to its notice. However, this
judgment shall not be a ground for re-opening any matter which stands already
concluded.

N.J. Appeal allowed.