Jagannath v. Jodha Ram

G.M Lodha, J.:— This is a tenant's revision application, in an ejectment suit, against the judgment stariking off his defence. The appeal filed before the Additional District Judge No. 2, Alwar was dismissed on May 18, 1979.

2. In this ejectment suit, the plea of the plaintiff was for granting of a decree on the basis of the default and also bonafide necessity. On November 29, 1975, the Court ordered under section 13(1)(a) that the defendant should deposit Rs. 488.75p being arrears of rent within one month. The deposit was made on January 2, 1976. It is admitted case of the parties that the Courts were closed between December 24, 1975 to January 1, 1976 on account of the Winter Vacations.

3. On an application for striking off defence under Section 13(6) of (he Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as ‘the Act’). The Court relying upon the judgments passed in Yogesh Chand v. State of Rajasthan (1) and in the case of Chimna v. Chunni Lal (2) held that tenant has committed default in compliance of the orders of the Court and he cannot take benefit of Winter Vacations, because the amount could have been deposited, as it was not an ordinary work of the court, but was an extra ordinary work.

4. A perusal of the above two judgments shows that the case of Chimna v. Chunni Lal (2) is based on notification for summer vacations. The ground was that the amount could have been deposited as it was not an ordinary work and court can do urgent work. In the second case, the matter related to the filing of the appeal in relation to the injunction, and the question was whether the Court had jurisdiction to entertain the appeal during the vacations.

5. In the insstant case, I am not deciding the controversy whather during the winter vacation the amount could be deposited or not ?

6. The case has assumed new dimensions, because of the references made to section 11 of the Rajasthan General Clauses Act, 1955 which reads as under:

“11. Computation of time-Where, by any Rajasthan Law, any Act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1908, (Central) Act IX of 1908) applies.”

7. The section quoted above expressly permits that if any proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time, if it is done or taken, on the next day on which the court or office is opened.

8. This section is analogous to section 10 of Central General Clauses Act which has been interpreted by Hon'ble the Supreme Court in Harinder Singh v. S. Kernail Singh (3). Hon'ble the Supreme Court has held that where a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday then according to the section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is to open.

9. In Madan Gopal Daga… v. Rallis India Ltd.…. (4) Calcutta High Court has observed as under:—

“One of the fundamental principles in administration of justice is ‘Actus Curine Neminem Gravabit’ which means that an act of Court shall prejudice no man. In construing and applying an ambigous order of Court this principle should be observed. It means that no litigant or person should be hurt or damaged or prejudiced by any ambiguity of the order of the Court. If the time fixed for payment of adjournment cost by an order of Court is ambigous then the correct computation of time by a true construction of the order must be such as causes the least prejudice and harm to a litigant or a person affected by the order.

When the Court orders that payment (of adjournment cost by the plaintiff) is to be made by the end of a month and the end of such month happens to be a holiday it is no breach of that order for the party to do the act on very first subsequent day on which the Court reopens after the holiday. The principle of construction is that the Court grant time knowing that the time will expire on a holiday so that the litigant who is required to do an act within that time can get the benefit and grace of the additional time involved in holidays and pay on the very next subsequent day on which the Court reopens. It is only by that construction that the Court can avoid prejudice to a litigant before it. If the Court wants that a particular act is to be done without the benefit of this extended time, a holiday intervening on the date of the expiry of the order, then it is for the Court to expressly say so that the particular act should be done by a particular date which is not a holiday. Doubts, if any, in the construction or effect of the order of a Court in which there is a penal clause should always be resolved in favour of the litigant by extending the time to include, the holiday and not to make him a victim of such doubts.

Section 10 of the General Clauses Act does not apply to an order of the Court. Section 10 is only applied where a statute allows an order or act to be done within a particular time. It cannot be extended to cover an order of Court, fixing a particular time within an act is to be done.”

10. My attention has been drawn to sub-sec. 3 and 4 of sec. 13 of the Act which reads as under:—

“(3) In a suit for eviction on the ground set forth in clause (a) of sub-sec. (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 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. 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 upto 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 percent per annum from the date when any such amount was payable upto 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 upto 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).”

11. A careful study of the above clause would show that the time has been given by Act itself, that is 15 day's subject to the extension granted by the Court upto the maximum period of three months. In this view of the matter, I am of the opinion that time for payment of arrears of rent, could be covered by the above clause i.e prescribed by the Act, minimum being 15 days and the maximum being three months, which would depend upon the order of the Court.

12. In view of the above, I am of the opinion that section 11 of the Act would apply and time, which has been granted to, the defendant in this, case, would be deemed to be time prescribed or given by the Rajasthan Law, even though the exact extension has been by the. Court's order, within, maximum limit of 3 months.

13. This important aspect of the matter was not brought to the notice of the two courts below and Mr. Jain's objection is that this objection must not be allowed to be taken in revision for the first time. It is not possible to entertain the objection of Mr. Jain, because the matter goes to the root of the case, and affects jurisdiction, in an important and vital matter regarding the defence of the tenant.

14. This Act has been made for providing protection to the tenants against ejectments, merely on whom or realy of landlord, permitting the ejectments on certain grounds only and on the basis of the certain conditions only.

15. This legislation in the urban areas is analogous to the Rajasthan Protection of Tenants Ordinance, wherein protection was provided to cultivators of agriculture fields in villages. The problem of getting a roof over the head, is problem of serious magnitude. The housing problem and the fast changing notions of socialeconomic philosophy, in this country, gave rise to various rent control legislations. Hon'ble Justice Iyer in B. Banerjee v. Anita Pan (Smt) (5) has described it as problem of “shocking scarcity of a roof to rest”. Lakhs of down trodden, poor labourers, workmen, strech their bones on footpaths, pavements of Chopati & Kalbadevi—in Bombay, Bada Bazar and Dharamtalla in Calcutta. Chandni chowk & Cannaught Circus of Delhi, Panchbatti and Mirza Ismail Road of Jaipur, and Sojati Gate of Jodhpur, whether it is chilling cold of December or scoarching heat of June, after working for the whole day like chattels and struggling for two square meals.

16. “Calcutta or Cochin, for the urban people of India, the shocking scar city of a roof to rest one's tired bones is an unhappy problem of social justice for that enactment of control of rent and evictionlaws”, observed Hon'ble J. ustice “Iyer” of Supreme Court.

17. The Rent Control Legislations are therefore beneficial legislations to protect tenants from being thrown on roads, merely on the wageres, whims, fancy and greed of landlords. Such being the beneficial nature of legislation aimed for “social Justice” the interpretation and construction of such statute should also be beneficial & liberal” in favour of tenants, of course without doing any voilence to the statute. It is also on account of this, that I have taken the view that section 10 of General Clauses Act would apply for counting the period of payment of rent in compliance of provisions of S. 13(3) and (4) of the Act.

18. The question relates to the jurisdiction of the Court and therefore, cannot be ignored on the mere ground that the lower courts did not took note of it.

19. Yet, another and far stronger reason for taking the above view is the principle of “Actus curiae Neminem Gravabit” which means that “an act of Court shall prejudice no man”. In Swami Kumaranand v. Brijmohan (6) an election appeal, the Hon'ble Supreme Court has categorically held that no litigant should be made to suffer for the act of court or when the court becomes a party to mistake committed by counsel, by accepting the security deposit. That was an election appeal of Beawar M.L.A, where the counsel by mistake deposited security amount in High Court in stead of Government treasury. The High Court rejected the appeal holding that in election law Court should take strict and stringent view, but the Supreme Court reversed it, as mentioned above.

20. Applying the above, it was in fact the mistake of the court to have allowed time to end in winter vacations and the litigant cannot be allowed to suffer for it, by rejecting the deposit as time barred, even when the amount is deposited on the first opening day.

21. In view of the above, I am clearly of the opinion that the amount deposited by the tenant on 2-1-1976 which was the next day and the court oppening day, was within one month, being the first day after winter vacations were over on 1-1-76. That being so, the order striking off the defence cannot be sustained and is liable to be quashed.

22. This revision deserves to be accepted, on yet another ground. When the legislature has allowed discretion to court to allow maximum 3 months time under sec. 13(4) of the Act for depositing the amount of arrears of rent, the court should not be conservative and strict, by depriving tenant of this benefit for doing social justice. Unless in a given case, exceptional reasons warrant it, invariably and generally the Court should allow maximum time by extending it on the slightest bonafide ground.

23. The crux of ground of ejectment on default, is that when the Court is convinced that the tenant is unwilling to pay rent and therefore this willingness should be tested by permitting maximum time to tenant, permissible under the statute i.e, sec. 13(4) of the Act. This can be done in appeal or revision also, if the trial Court has failed to do so. Since this was not done in this case, and the payment was within the maximum time of 3 months, order for striking off defence cannot be sustained.

24. Mr. Jain has placed reliance on the two judgments of the Hon'ble Supreme Court: Sher Singh v. Joint Director of Consolidation (7) and The Municipal Corporation of Delhi v. Suresh Chandra Jaipuria (8), for showing that the High Court should not interfere, even though order challenged in revision, is wrong or illegal. As already mentioned above, if there would have been simple error of law, I would not have interfered, but the subject matter partains to the jurisdiction of the trial Court in an important matter of depriving a tenant of valuable right to defend his ejectment, on the sole erroneous and illegal grounds.

25. Mr. Jain further pointed out that this Court has taken view in Ram Chandra v. Laxmi Kumar (S.B Civ. Rev. No. 363/79, decided by this Court on 17-9-79), wherein it has been held that when appeal can be filed, interference cannot be made on account of the proviso of sec. 115 C.P.C It would be sufficient to mention that the interference always depends upon vital question, whether in a given case, the petitioner would suffer substantial injury or substantial failure of justice, if the impugned order is not set aside.

26. I am clearly of the opinion that in the instant case, if the impugned order is allowed to stand, the defendant—tenant would be deprived of his valuable right to defend his ejectment. It would thus be a serious failure of justice and cause him irreparable injury, and therefore Ramchander's judgment referred to above is in applicable here.

27. That being so, there is no escape but to accept this revision petition, on all the three grounds mentioned above. The result is that revision petition is, therefore, accepted and impugned order striking off the defence, and the order of appellate court confirming it are quashed. The trial Court is directed to proceed with the case, permitting the defendant to contest the ejectment suit.

28. The parties would bear their own costs.