S.K Mal Lodha, J.:— This is a revision petition under Sec. 115, Civil Procedure Code by the defendant directed against the appellate order of the learned District Judge, Jodhpur dated March 31, 1978 passed in Civil Appeal (Older) No. 22 of 1978.
2. Non-petitioner No. 1 is the plaintiff (Landlord) in the trial court. He instituted a suit for arrears of rent amounting to Rs. 4800/- and ejectment from the house described in para No. 1 of the plaint against the petitioner (tenant-defendant No. 1) and non-petitioner No. 2 (tenant defendant No. 2) in the court of Civil Judge, Jodhpur, on August 21, 1976 which was subsequently transferred to the Court of the Additional Civil Judge, Jodhpur. It was alleged by the plaintiff that the defendants were defaultors so far as payment of rent was concerned. The ejectment was sought on the ground of default under Sec. 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) which will hereinafter be referred to as ‘the Act’. Defendant No. 1-petitioner appeared before the trial court on October 16, 1976 after service. Defendant No 2 did not appear in spite of service and, therefore, ex parte proceedings were taken against him vide order sheet dated October 16, 1976 An application under Sec. 13(3) of the Act was moved on February 14, 1977 on behalf of the plaintiff in the trial court with a prayer that the amount may be determined in accordance with Sec. 13(3) of the Act. It was mentioned in the application that the suit was based on the ground of default in payment of rent and that the defendant despite taking several adjournments has not Sled the written statement and the suit pertains to the rent which has fallen in arrears from February 2, 1974 though the defendant in the previous suit has admitted that rent is due from September, 1973. This application was resisted by the defendant-petitioner vide reply dated March 25, 1977 on various grounds. It was stated in the reply that there is no provision of law under which such an application could be made and as such, it deserves to be dismissed. It was futher mentioned that determination can only be made after filing the written statement and not before that. Besides this, it was also mentioned in the reply that the plaintiff has not placed any material on record for the determination of the rent. The learned Additional Civil Judge vide his order dated January 30, 1978 allowed the application filed by the plaintiff non-petitioner No. I and determined the amount of rent and interest to the tune of Rs. 8,228/- and directed that this amount should be deposited within 15 days from the date of the order A further direction was given that subsequent rent of each month should be paid by 15th of the next following month. In this connection, it may be noticed here that the learned Additional Civil Judge considered two questions while deciding the application of the plaintiff-non petitioner No. 1 under Sec. 13(3) of the Act, namely, (i) whether it is established from the record that the plaintiff is the landlord of the defendant No. 1 up to that date and (ii) how much rent and interest are due up to that date to the plaintiff from the defendant The learned Additional Civil Judge found on the basis of the certified copy of the written statement filed by the plaintiff in Civil Original Case No. 26 of 1975, Plaintiff Ranchod Das v. Shri Ganesh Nirain and another that prima facie relationship of landlord and tenant between the plaintiff and defendant No. 1 is established. As regards the second question, he found that @ Rs. 160/- per month, means profits amounting to Rs. 7400/- and interest @ 6% amounting to Rs. 828/-, total Rs. 8,228/- were due to the plaintiff from the defendants. Being dissatisfied with this order, defendant-petitioner preferred an appeal under S. 22 of the Act before the learned Distt Judge, Jodhpur. The learned Distt. Judge dismissed the appeal and confirmed the order of the trial Court. He held that the application of the plaintiff-landlord (non-petitioner No 1) was maintainable under Sec. 13(3) of the Act and the rent could be determined. It was argued before him by the learned counsel for the petitioner that in the written statement, the petitioner has denied that plaiatiff-non petitioner is his landlord and therefore the point in controversy between the parties was whether there was a relationship of landlord and tenant between the plaintiff and the defendants or not and where the defendant doss not admit the plaintiff to be has landlord, no determination under sec. 13(3) of the Act could be made unless the tenancy is established before passing the order under Sec 13(4) of the Act. It was further contended that there is no provision under the Act for making a summary enquiry in this regard. On the basis of these premises, it was urged on behalf of the defendant-paritioner that until and unless the question of relationship of landlord and tenant is established between the parties after recording the evidence, determination of the amount of rent cannot be made. The learned District Judge, after discussing the relevant provisions of law as well as the authorities cited before him, came to the conclusion that prima facie there was no substance in the denial of petitioner-defendant that the plaintiff non petitioner is not his landlord and as such, the decision of the learned Additional Civil Judge on the basis of the admission made in the written statement filed in Civil Original Suit No 26 of 1975 on the application under Sec. 13(3) of the Act was correct. It has been specifically mentioned in the order under revision by the learned District Judge that whether the determination has been correctly made or not was sot assiled before him. In regard 11 the amount of rent, no argument was advanced before him. Being aggrieved by the judgment of the learned District Judge dated March 31, 1978, the defendant petitioner has preferred this revision as aforesaid.
3. 1 have heard Mr. J.P Joshi for the petitioner and Mr. P.C Mahur for plaintiff non-petitioner No 1 and have gone through the record of the case. In the first instance, the learned counsel appearing for the plaintiff-non-petitioner argued that the interference cannot be made in excercise of revisional jurisdiction, for, the order under revision has not occasioned any irreparable injury to the defendant-petitioner against whom it was made. He argued that so far as Sec 13(3) of the Act is concerned, the determination of the amount of rent contemplated is only provisional and therefore it cannot be said that by this provisional determination under Sec. 13(3) of the Act, the defendant-petitioner will suffer any irreparable injury. The plaintiff-non-petitioner submitted an application under sec. 13(3) of the Act and an order has been made by the learned Addl. Civil Judge under Sec 13(3) of the Act determining the amount of rent and interest. After determination, a direction has been given that the defendant-petitioner should deposit the rent within 15 days from the date of the determination. Besides this, the defendant-petitioner has also been directed to deposit tent month by month by 15th of the next following month @ Rs. 160/- per month The consequence of not depositing the amount has been provided under sec. 13(5) which says that if a tenant fails to make deport or pay the amount so deermined within the time mentioned in the order, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. Thus, it cannot be said that no irreparable injury would be caused to the defendant if the order under revision is allowed to stand. In these circumstances, the argument of the learned counsel that under proviso (b) to sec 115.1), C.P.C, the revision against the order is not maintainable, is devoid of force.
4. Learned counsel for the defendant-petitioner contended that no order can be made under sec. 413’4) of the Act before giving a finding on the question of relationship of landlord and tenant between the plaintiff and the defendants when the latter had denied this relationship The trial court should have first determined the question of landlord and tenant between the plaintiff and the defendants and thereafter should have proceeded to determine the amount of rent and interest under Sec. 13(3) of the Act. Learned counsel for the petitioner further submitted that the trial court could have jurisdiction to determine the amount of arrears of rent and interest after it had decided the question of relationship of landlord and tenant between the plaintiff and the defendants. He referred to Nane Shah v. Ramkumar (1) wherein while considering the provisions of Sec. 13(4) and (5) of the Act which were in vogue at that time, it was held that before sub-sec. (5) can be applied the person against whom an order is to be made should be proved to be a tenant. He also placed reliance on Baidyanath Kundu v. Smt. Jyotshna Rani Carmakar (2), Smt. Nirmal Jerath v. Shri Sadhu Ram Sharma (3) and Chhaganlal v. Narsing Parshad (4).
5. Mr. P.C Mathur, learned counsel for the plaintiff non-petitioner drew distinction between Sec. 13(4) (old) and sec. 13 3) of the Act and argued that no enquiry or for that matter even summary enquiry is necessary before making an order urder sec 13(4) of the Act on the application of the landlord under sec. 13(3) of the Act. According to him, sec. 13(4) (old), as it existed, contemplated a final decision whereas so far as the provisions of sec. 13(3) of the Act are concerned, the determination is only provisional. He farther contended that the decree will only be passed when the plaintiff will establish during the trial of the suit that he is the landlord In these circumstances, before making an order under Sec 13(4), it is not incumbent upon the court to first decide the question of relationship of landlord and tenant between the parties. He invited my attention to Om Parkash Gupta v. Rattan Singh (5), Inderlal Balkiram v. Mahngi Bai Imratlal (6), and Mahabir Ram v. Shiv Shanker Prasad (7) to substantiate his submissions. In order to appreciate the rival contentions between the parties. I may read old Sec. 13,—
“13. Eviction of tenants.—(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or other wise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied—
(a) that the tenant has neither paid nor tendered the amount of rent due from him for any two months;
(b) that the tenant has wilfully caused or permitted to be caused substantial damages to the premises; or
(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the Court, has materially altered the premises or is likely to diminish the value thereof; or
(d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy or the premises or which is likely to affect adversely and substantially the landlord's inte est therein; or
(e) that the tenant has assigned, sub let or otherwise parred with the possession of, the whole or any part of the premises without the permission of the landlord; or
(f) that the tenant has renounced his character as such of denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or
(g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or
(h) that the premises are required reasonably and bonafide by the landlord—
(i) for the use or occupation of himself or his family; or
(ii) for the use or occupation of any person for whose banefit the premises held, or
(iii) for a purpose, or
(iv) for philanthropic use, or
(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or
(j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit;
(k) that the landlord requires the premises in order to carry out any building work—
(i) at the instance of the State Governmant in pursuance of an improvement scheme or development scheme; or
(ii) because the premises have become unsafe or unfit for human habitation; or
(iii) upon the requisition of a local authority or
(iv) that the landlord has been required by any authority under any law to abate the overcrowding the premises
(2) The Court may presume that premises let for use as a residence were or are sub-let by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period exceeding one month otherwise than in commonality with the tenant.
(3) For the purpose of clause (a) of sub sec, (I) a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has remitted such amount to the landlord by postal money order at his ordinary address.
(4) In a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), the Court shall on the first day fixed for the hearing thereof by order determine the amount of rent due from the tenant, which is in arrears, up to the date of such order as also the amount of interest thereon at the rate of sis per cantum per annum and of the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amounts so specified on or before a date fixed thereby, which shall not be beyond the fifteenth day from, but exclusive of, the date thereof. If on or before the date so fixed for payment, the tenant deposits in Court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord:
Provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub-section if he has made default in the payment or tender of the amount of rent due for any two months on three occasions within a period of eighteen months.
(5) If, on the first day fixed for the hearing of the suit, the tenant expresses his intention to contest the same or if he fails to make the payment referred to in sub-sec. (4), the Court shall proceed with the hearing of the suit and may, on the application of the landlord made at any stage of the suit and after giving an opportunity to the parties to be heard, make an order requiring the tenant to deposit in Court month by month the rent at the rate at which it was last paid. On his failure to deposit the rent for any month by the fifteenth day of the next following, the Court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit.”
6. Sec. 13 of the Act reads as follows,—
“Section—13—Eviction of tenants (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied—
(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or
(b) that the tenant has wilfully caused or permitted to be caused substantia) damage to the premises; or
(c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court has materially altered the premises or is likely to diminish the value thereof; or
(d) that the tenant has created a nuisance or has done any act which is inconsistant with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or
(e) that the tenant has assigned, sub-let or otherwise parti d with the possession of, the whole or any part of the premises without the permission of the landlord; or
(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or
(g) that the preirises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or
(h) that the premises are required reasonably and bonafide by the landlord—
(i) for the use or occupation of himself or his family, or
(ii) for the use or occupation of any person for whose benefit the premises are held, or
(iii) for a public purpose, or
(iv) for philanthropic use; or
(i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or
(j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; or
(k) that the landlord requires the premises in order to carry out any building work.
(i) at the instance of the State Government in pursuance of an improvement scheme or development scheme; or
(ii) because the premises have become unsafe or unfit for human habitation; or
(iii) upon the requisition of a local authority; or
(1) that the landlord has been required by any authority under any law to abate the overcrowding of the premises.
(2) The Court may presume that premises let for use as a residence were or are sub-let by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premise or any part thereof for a period exceeding one month otherwise than in commensality with the tenant.
(3) Is a suit for eviction on the ground set forth in clause (a) of sub-section () 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).
(5) If a tenant fails to deposit or pay any amount referred to in sub-sec. (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-sec (4) no decree for eviction on the ground specified in clause (a of sub-clause (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 benefits under sec 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.
(7) If in any suit referred to in sub-sec. (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit.
(8) In case at the time of decision of the suit—
(a) the court finds that the amount of rent provisionally determined by it under sub-sec. 3 and deposited in court or paid to the landlord under sub-sec. (4) is less than the amount of rent finally decided as payable by the tenant, the court shall pass a decree for the balance amount against the tenant;
(b) the court finds that the amount determined and deposited or paid as aforesaid in excess of the amount of rent finally decided as payable by the tenant, the court shall, in the event of passing a decree for eviction against the tenant on ground other than that set forth in clause (a) of sub-sec. (1), also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction it shall direct in the decree that such excess amount will be adjusted by the landlord against future rent payable by the tenant.
(9) Where any decree or order for the eviction of a tenant is made on the ground specified in sub-sec. (1), the landlord shall not be entitled to obtain possession thereof before the expiration of the months from the date of the decree or order.”
7. Present sub sec. (3) of sec. 13 was substituted for the sub-secs (3), (4) and (5) as they existed before the Rajasthan Amending Act No XIV of 1976. A bare reading of the present sub sec. (3) and previous sub-sec. (4) as it existed prior to the Amending Act No. XIV of 1976 shows that it has been substituted and renumbered for the previous sub sec. (4). The material change which deserves to be noticed is that in the old sub sec (4) of sec. 13, it has been specifically provided that if on or before the date so fixed for payment, the tenant deposits in court the aggregate of the amount so determined, the suit shall be dismissed and the sum so deposited shall be paid to the landlord whereas sec. 13(3) of the Act inter alia provides that after hearing the parties and on the basis of the material on record, provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant and subsec. (4) of sec 13 lays down that the tenant shall deposit in court or pay to the landlord the amount determined under sub sec. (3) within 15 days from the date of such determination or within such further time not exceeding three months as may from time to time be extended by the court. It envisages a rurther direction for payment of rent month by month becoming due after the order of the determination. Original sub sec. (6) has been renumbered as sub-sec. (5) by sec. 8(2) of the Rajasthan Amending Ordinance No. XXVI of 1975 which now stands replaced by the Rajasthan Amending Act-No XIV of 1976. The consequence of not depositing or paying the amount which has been referred to in sub-sec (4) on the date or within time specified in that sub-section is provided in the sub-sec (5) and that is that the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the case. The present sec. 13(3) empowers both the landlord and the tenant to make an application for the determination of the amount of rent to be deposited in court or paid to the landlord by the tenant. When the landlord makes an application for the determination of the rent and interest thereon, the tenant is ultimately to be benifitied and thereby he obtains one more opportunity to prevent eviction on the ground of default along. Under the present sec. 13(3), a duty has been cast on the court whether there is an application or not, to start with determining the arrears of rent and the interest. In order to examine the argument of Mr. J.P Joshi, learned counsel for the petitioner, the words used in sec. 13(3) “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 the writ ten statement and shall be before the framing of the issues” cannot be lost sight of. According to sec. 13(3), if the suit for eviction is based on the ground mentioned in clause (a) of sub sec. (1) of sec. 13, it is necessary for the court to determine the amount of rent and interest on the first date of hearing or within the period mentioned therein Issues are framed as contemplated by O. XIV r. 1 on the material proportion of fact or law which are affirmed by the one party and denied by the other. The averment of the plaintiff that the defendant is his tenant is a material proposition of fact which has been denied by the defendant and therefore this will form a subject matter of one of the issnes which is to be framed by the trial court on the basis of the pleadings of the parties. This issue is to be decided after trial that is when the parties have led their evidence in support of their respective averments. For the determination of the amount of rent and interest under Sec 13(3) of the Act, the only condition contemplated is that the suit for eviction should be based on the ground set forth in clause (a) of sub sec. (1) with or without any or the other grounds referred to in that sub section.’ Once this averment in the plaint is there that the tenant has neither paid nor tendered the amount of rent due from him for six months, in my opinion, sec. 13(3) of the Act will come into play and it is incumbent on the court to determine the amount of rent and interest either on the first date of hearing or on any other date which the court may consider fit to fix in this behalf which of course shall not be more than three months after filing the written statement and is to be before the framing of the issues. The manner ana mode of the determination of the amounts have been laid dawn in this sub-section. It has been provided that ‘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 and that the amount of rent is to be calculated at the rate of rent at which it was last paid or was payable in respect of the period for which the tenant may have made default inclusive of the period subsequent thereto up to the end of the month previous to that in which the determination is made. Further interest on the amount of rent so calculated at the rate of 6% per annum from the date when such amount became payable upto the date of determination is also to be calculated. A proviso has been added to sec. 13(3) with which I am not concerned for the purpose of resolving the controversy before me. I want to emphasise that the determination of the amount of rent to be deposited in court or paid to the landlord by the tenant is provisional in as much as the words used are ‘provisionally determine’. Thus the determination under sec. 13(3) is ‘temporary’ or ‘for the time being’. This determination is to be made as provided in sec. 13(3) after hearing the parties and on the basis of the material which is on record. In other words, the material that may be available on record either on the first date of hearing or any other date which may be fixed in this behalf but not later than three months after the filing of the written statement and before the framing of the issues. The words in sec. 13(3) regarding the point of time for the determination of the amount of rent and interest are first date of hearing or any other date which is not to be more than three months after the filing of the written statement and before the framing of the issues. It may be stated that the words ‘first hearing’ of the suit have been used in OX, rr. 1 & 2 and O. XIII r. 1 and O. XIV r. 1, C.P.C According to O. X, r. 1, ‘at the first hearing of the suit’, an ascertainment whether ascertions are denied or admitted can be made from each party by the court. O. X, r. 2 provides that at the first hearing of the suit’ or at any subsequent hearing, oral examination of party or companion of party may be made by the court and the court may, if it thinks fit; put such questions in the course of examination as may be suggested by either party. O. XIII, r. 1 inter alia lays down that the documentary evidence of every description which is in possession or power of the parties or on which they intend to rely and which has not already been produced in court should be produced “at the first hearing of the suit”. O. XIV, r. 1(5) provides that ‘at the first hearing of the suit’, the court after reading the plaint and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact and law the parties are at variance and shall thereupon proceed to frame issues on which the right decision of the case appears to depend’, it is therefore clear that the first hearing of the suit would clearly extand atleast upto the period of the first hearing referred to in O. XIII, r. 1 G.P.C as the determination under Sec. 13(3) of the Act is to be made not beyond three months from the date of the filing of the written statement and before the settlement of the issues, and as such, no enquiry much less summary enquiry is contemplated for that purpose. As soon as, on the basis of the averments in the plaint, the court is satisfied that the suit for eviction is based on the ground set forth in clause (a) of sub sec. (1) of sec. 13 of the Act, the court is required to determine the amount of rent and interest in accordance with the provisions of sec 13(3) of the Act. Therefore, before making an order for the determination of the amount of rent and interest thereon for a direction to deposit in court or for paying to the landlord, it is not necessary that the court should first determine the question of relationship of landlord and tenant between the parties by holding an enquiry into the matter. As stated above, that determination is to be made merely on the basis of the material which has been placed on record up to that stage by the parties. The determination so made is provisional in character and it does not affect the final rights of the parties. Learned counsel for the plaintiff-non-petitioner strongly relied on a decision Omprakash Gupta v. Rattan Singh (5). It was argued on behalf of the appellant before their Lordships that the authorities under the Delhi Rent Control Act (No. XIX of 1958) bad no jurisdiction to entertain the proceedings inasmuch as it was denied that there was any relationship of landlord and tenant between the parties and consequently the provisions of sec. 15(3) of the Delhi Act should not be applied in the absence of a finding that he was a tenant in respect of the premises rented out to him. Sec. 15(1) and Sec. 15(7) of the Delhi Rent Control Act run as under,—
“15. When a tenant can get the benefit of protection against eviction—(1). In every proceeding for the recovery of possession of any premises on the ground specified in clause (1) of the proviso to subsection (1) of section 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant including the period subsequent thereto up to the end of the months previous to that in which payment or deposit is made and to continue to pay or deposit, month by month, by the fifteenth of each succeeding month, a sum equivalent to the rent at that rate.
……………………
(7) If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application”
8. In this connection, their Lordships observed as follows,—
“…Now, proceedings under S. 15 are primarily meant for the benefit of the tenant, and the section authorises the Controller after giving the parties an opportunity of being heard, to make an order directing the tenant to pay the amount on calculation to be due to the landlord or to deposit it with the Controller, within one month of the date of the order. Such an order can be passed by the Controller for the benefit of the tenant, only if the Controller decides that the person against whom the proceedings for eviction had been initiated was in the position of a tenant. Thus, any order passed by the Controller, either under S 15 or other seitions of the Act, assumes that the Controller has the jurisdiction to make the order, i.e to determine the issue of relationship In this case, when the Controller made the order for deposit of the arrears of rent dueunder S. 15(1), and on default of that made the order under Sub S. (7) of S. 15, striking out the defence, the Controller must be deemed to have decided that the appellant was a tenant Such a decision may not be res-judicata in a regular suit in which a similar issue may directly arise for decision. Hence, any orders made by a Controller under the Act proceed on the assumption that he has the necessary power to do so under the provisions of the Act, which apply and which are meant to Control rents and evictions of tenants. An order under S 15(1) is meant primarily for the protection and benefit of the tenant. If the appellant took his stand upon the plea that he was not a tenant he should have simply deneid the relationship and walked out of the proceedings……”
9. Sec 13 of the Madhya Pradesh Accommodation Control Act (No XLI of 1961) came up for consideration before a Division Bench of the Madhya Pradesh High Court in Inderlal Balkiram's case (6). Sec. 13(1) of the Madhya Pradesh Act runs as under:—
“13(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in a. 12, the tenant shall, within one month of the service of the writ or summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was said 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 the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.”
10. Dixit C.J observed as follows,—
“Once a suit for ejectment, on the grounds referred to in Sec 12, is instituted, the provisions of sub sec (1) of See. 13 operate against the defendant and the Court acquires jurisdiction to deal with any claim or question arising under any of the provisions of Sec. 13, no matter whether the relationship of landlord and tenant is admitted or denied by the defendant.”
11. Para 7 of the decision may also be usefully quoted,—
“The object and purpose of Sec. 13 also point to the conclusion that a finding by the court that the defendant is a tenant is not necessary for the operation of Sec. 13(1) or for the exercise of the powers conferred on the Court by the various sub-sections of Sec. 13. The object of Sec 13(1) is cl early to prevent a tenant from stopping payment of rent the moment a suit for ejectment is filed against him. It is also to believe the landlord of the necessity of filing separate suits for rent for the period covered by the pendency of his suit for eviction. Section ??? also gives relief to the defendant who makes the deposit or payment as required by sub-section (11) of sub-section (2). No decree for eviction can be passed against a defendant who makes the paymentor deposit as required by sec. 13. These objects would be altogether defeated if it is held that Sec. 13 becomes operative in a suit for eviction only after it is adjudicated that the defendant sued is a tenant. It is now very common for the defendants in ejectment suits to deny the plaintiff landlord's title, and such a denial is generally the main issue in the suit. Therefore, to say that Sec. (3) can come into play only after it is determined by the Court that the defendant is a tenant is to hold virtually that Sec. 13 becomes operative in a suit for eviction when the suit itself is about to be decided and to subject the plaintiff-landlord to harrassment and pecuniary loss which Sec. 13 intends to safeguard.”
12. It was further observed in para 8 of the decision,—
“That in any suit for eviction on any of the grounds mentioned in Sec 12 Sec. 13 becomes applicable even before the determination of the question whether the defendant is a tenant, is clinched by sub section (4) and (6) of Section 13 which provide for the defence again it eviction being struck out. The defence against eviction open to a defendant under the M.P Accommodation Control Act, 1961, very often includes the denial of the landlord's title. If the defence against ejectment can be gone into for determining the question whether the defendant is a tenant for the purpose of the applicability of Section 13((1), thea there would be no meaning left in the provision contained in sub-section (6) of Sec. 13 that on failure to deposit or pay any amount required by the section, the defence against eviction may be struck off Sub-section (6) unmistakebly shows that for the applicability of Sec-13 it is not necessary first to determine that there is a relationship of landlord and tenant between the plaintiff and the defendant.”
13. Sec. 13(1) of the Madhya Pradesh Act is similar to Sec. 13(3) of the Act.
14. Sec. 11-A of the Bihar Buildings (Lease, Rent and Eviction) Control Act (No. III of 1947) came up for consideration before a Full Bench of the Patna High Court in Mahabir Ram's case (7) Tarkesh warnath J. with whom N.L Untwalia J. as he then was), and K.B.N Singh J. agreed, laid down two propositions in regard to the procedure which a court has to adopt on an application under Sec. 11-A of the Bihar Act which was before them for consideration.—
“(a) In case the defendant denies the relationship of landlord and tenant between the plaintiff and himself, the court has to examine the materials then available and come to a conclusion whether the said denial or a dispute as to the title of the plaintiff was bonafide or a mere pretence; and in case there is no prima facie merit in the said denial, the defendant can be called upon to make the deposit if other conditions are fulfilled.
(b) The Court has to determine as to what was the rate of rent last paid and as to what amount of rent was in arrear, if any The order passed in this connection is subject to variation, inasmuch as, the House Controller may determine during the pendency of the suit that the fair rent of the house is somewhat different.”
15. It was clearly held in that case that the orders passed at the stage of the application under Sec. 11-A are subject to the final decision on the very same question in the suit. It may be mentioned that the Patna case was distinguished in the case published in AIR 1975 S.C 391 (8).
16. Sub sec. (4) of Sec. 13 of the Act merely provides that the tenant is required to deposit in court or pay to the landlord the amount determined by the court under sub-sec. (3) of S. 13 within 15 days from the date of such determination or within such extended period which may be extended by the court but not exceeding three months. It further provides that the tenant is to continue to deposit in court or pay to the landlord month by month the monthly rent subsequent to the period upto which date the determination has been made, by the 15th of each succeeding month or within such further time not exceeding 15 days which may be extended by the court at the monthly rate at which the rent was determined by the court under sub sec. (3) of sec-13 of the Act. Having regard to the provisions of Sec. 13(3) and Sec 134) of the Act and after considering the three cases cited by the learned counsel for the plaintiff-non-petitioner which have been referred to above, I am clearly of the opinion that in a suit for eviction based on the ground set forth in clause (a) of sub-sec. (1) of Sec. 13 of the Act, with or without any other grounds referred to in that sub-section before determining the amount of rent or interest as contemplated by sec. 13(3) in case of denial of relationship of landlord and tenant by the defendant, it is not necessary for the court to hold an enquiry much less a summary enquiry for first deciding the question of relationship of landlord and tenant Sec. 13(3) becomes applicable when the condition therein is satisfied even before the determination of the question whether the defendant is a tenant. The Rajasthan case (1) relied upon by the learned counsel for the petitioner is distinguishable because this was rendered under sec. 13(4) (old) which clearly says “if on or before the date so fixed for payment, the tenant deposits in court the aggregate of such amount, the suit shall be existed and the sume so deposited shall be paid to the landlord”. Sec. 13(5) (old) provided for striking oiut the defence of the tenant on the happening of the contingency mentioned in that sub-section. In that contest, it was observed by the learned Judge that the court cannot pass an order in favour of the person who is not proved to be a landlord, in other words, against a person who is not proved to be a tenant. As stated above by me, the determination under sec. 13(3) is provisional and it is to be made in accordance with the manner and mode provided under sub-sec. (3) of Sec. 13. Before making an order, the court has to be satisfied that the suit is based on the ground set forth under sec. 13(1)(a) of the Act, with or without any other ground referred to in that sub-section. In the Calcutta case (2), sec 17 3) of the West Bengal Premises Tenancy Act (No. XII of 1956) came up for consideration. In that case, an application under sec 17(3) praying for straking out the defence of the defendant-tenant against delivery of possession was submitted by the landlord The tenant opposed the application by filing a petition of objection thereto. In that petition of objection, the tenant challenged the ownership of the opposite-party (landlord) in respect of the suit premises and denied the relationship of landlord and tenant between the opposite party and the petitioner In that connection, it was observed that according to the petitioner, the provision of the Act does not apply to the facts and circumstances of the case ‘that the court has no jurisdiction to pass a decree for his eviction against the petitioner'. The provisions of Sec 13(3) of the Act are quite different from the provisions which were for consideration before his Lordship of the Calcutta High Court. The determination under Sec 13(3) of the Act is provisional and that has to be made either on the first date of hearing or on any other date not more than three months from the date of the filing of the written statement and before the settlement of the issues. The Calcutta decision therefore is not of any avail to the learned counsel for the defendant-petitioner. His Lordship of the Delhi Court in Smt. Nirmal Jerath's case (3) was concerned with an application under Sec. 15(1) of the Delhi Rent Control Act, 1958 In that connection, it was observed that the effect of passing an order under Sec. 15(1) of the Delhi Act is to make the tenant liable to ejectment if he fails to make a deposit. In that case, maintainability of the application was in question and therefore it was held that it was desirable that such a question should be ascertained and determined before an order under Sec. 15(1) is passed. In this case, the decision of their Lordships of the Supreme Court in Om Prakash Gupta's case (5) was not taken note of. Apart from that, secs. 13(3) and 1???(4) of the Act do not warrant determination of the relationship of the landlord and tenant before making the order under Sec. 134) of the Act. This case is therefore of no help to the defendant-petitioner. So faras the judgment of the Andhra Pradesh High Court (4) relied upon by the learned counsel lor the petitioner is concerned, it deals with altogether a different situation. It is convenient to extract here the entire sec 11 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, (No. XV of 1960) which is as follows,—
“11. No tenant against whom an application for eviction has been made by a landlord under Section 10, shall be entitled to contest the application before the Controller under that Section, or to prefer any appeal under Sec 20 against any order made by the Controller on application, unless he has paid to the landlord, or deposits with the controller or the appellate authority, as the case may be, all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building, until the termination of the proceedings before the Controller or the appellate authority, as the case may be.
(2) The deposit of rent under Sub-Sec. (1) shall be made within the lime and in the manner prescribed.
(3) Where there is any dispute as to the amount of rent to be paid or deposited under Sub-Section (1), the Controller or the appellate authority, as the case may be, shall on application made to him either by the tenant or by the landlord and after making such enquiry as he deems necessary, determine summarily the rent to be so paid or deposited
(4) If any tenant fails to pay or deposit the rent as aforesaid, the Controller or the appellate authority, as the case may be shall, unless the tenant shows sufficient cause to the contrary, stop all further proceedings and make an order directing the tenant to put the landlord in possession of the building.
(5) The amount deposited under Sub-Section (1) may, subject to such condition as may be pescribed, be withdrawn by landlord on application by him in that behalf to the Controller or the appellate authority, as the case may be.”
17. A reading of sec. 11 clearly shows that an embargo has been put on a tenant against whom an application for eviction has been made to contest that application unless he pays to the landlord or deposits with the Controller all arrears of rent due in respect of the building up to the date of payment or deposit and continues to pay or deposit subsequent rent until the termination of the proceedings. According to sub section (4) of sec. 11 of the Andra Pradesh Act, if the tenant fails to pay or deposit, the Controller or the Appellate Authority, as the case may be, has been empowered, unless the tenant shows sufficient cause to the contrary; to make an order directing the tenant to put the landlord in possession of the building and to stop all further proceedings In view of the language used in sec, 11 of the Act, it was held that for the purpose of passing orders under Sec. 11 when the relationship of landlord and tenant is denied, the Controller has to determine that question finally by making a regular enquiry and not provisionally by making a summary enquiry before assuming jurisdiction in the matter and pass orders and such a determination will be a decision in the main eviction petition itself. This case is wholly distinguishable and has no application to the facts of the case before me. The last case to which reference was made by the learned counsel for the petitioner is Ram Narain Khanna… v. S. Ishar Singh… (9). The provisions of sec. 15 of the Delhi Rent Control Act came up for consideration before the learned Judges of the Delhi High Court in that case. Sec. 15(1) lays down that in every proceedings for the recovery of possession of any premises on the ground specified in clause (1) of the proviso to sub sec. (1) of Sec 14, the Controller shall, after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month from the date of the making of the order an amount calculated at the rate of rent at which it was last paid for the period for which the arrea's of rent were legally receverable from the tenant including the period subsequent thereto upto the end of the month previous to that in which payment or deposit is made and further to continue to pay or deposit month by month by the 15th of each succeeding month a sum equvalent to that rate. Sub-section (3) of sec. 15 thereof deals with respect to the determination if there is any dispute as to the amount of rent payable by the tenant. Sub-section (6) of sec. 15 of the Delhi Act provides that if a tenant makes payment or deposits as required by sub-sec. (1) of sec 15 no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant. But the Controller may allow such costs as he may deem fit to the landlord. Sub sec. (7) deals with striking out of defence against eviction. Sub-sec. (4) like sub-sec. (3) of Sec. 15 of the Delhi Act applies to proceedings under sub-sec (1) or sub-sec. (2) The dispute contemplated by sub-sec (4) relates as to who the landlord is ? This dispute does not relate to the fact that the respondent contesting the ejectment application is a tenant or not. Therefore, under sub sec (4), a discretion is given to the Controller to direct the tenant to deposit all arrears of rent and future rent but a restriction in such a case is placed that the person claiming to be the landlord is not entitled to withdraw the amount until the Controller decides the dispute namely, the dispute whether the applicant is a landlord or not and thereafter makes an order for payment of the sum. It was held by the Delhi High Court that sub-section (3) and sub section (4) contemplate payment of interim rent or the arrears of rent even before the determination of the entire dispute by the Controller. It will be noticed that sec 13(3) of the Act is different from section 15(1) and section 13(4) of the Act is different from section 15(6). This authority is therefore not applicable to the case before me.
18. The learned District Judge took note of the fact that prima facie the denial of the defendant petitioner that the plaintiff is not his landlord and he is not his tenant is not of much sudstance. In this connection, he relied upon the certified Copy of the written statement filed by the defendant-petitioner in Civil Original Suit No. 26 of 1975. Plaintiff Shri R.D Gattani v. Ganesh Narain dated June 27, 1977. A perusal of this certified copy shows that in para 4 it has been admitted by the defendant-petitioner that the house in dispute was taken by the deceased father of the defendants on rent In para 5, it has further been admitted that the defendatn-petitioner agreed to increase the rent. In para 6, it has been stated that the rent was deposited in the plaintiff non petitioner's account in the Bank of Baroda and thereafter, on a direction by the plaintiff not to deposit, it was discontinued. On the basis of these admissions the learned District Judge was of the opinion that the defendant petitioner has admitted the tenancy and therefore on this basis, rent can be determined According to him, the certified copy of the written statement was the material on record providing basis for the determination of the amount of rent. The certified copy of the written statement was filed in court on January 30, 1978, the date on which the arguments on the application under sec-13(3) were heard. The defendant-petitioner even at that stage did not ask for any opportunity to either file documents to show that there was no relationship of the landlord and tenant or any affidavits in that behalf. It was not for the trial c court to issue an invitation to the defendant to produce oral or documentary evidence in this regard inasmuch as the words used in section 13(3) are after hearing the parties and on the basis of the material on record, provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant’. I am therefore of the view that no illegality or material irregularity has been committed by the courts below in determining the amount of rent under sec 13(3) of the Act. In this case as stated above, on the basis of the certified copy of the written statement, the learned District Judge found that even this relationship is made out and so determination of the amount of rent could be made.
19. The other point that was faintly argued by the learned counsel for the defendant-petitioner was that the certified copy of the written statement was denied by the defendant-petitioner, and as such, it could not be made basis for determining the quantum of rent at the rate of Rs. 160/- per month. It may be stated that before the lower appellate court, this point was not pressed 11 is clear from the judgment of the lower appellate court that regarding the question of amount of rent, on argument was advanced before him and that no dispute was raised in this regard. This point was not taken in memo of revision which was filed in this court The learned Additional Civil Judge determined the amount of rent @ Rs. 160/- per month on the basis of the certified copy of the written statement referred to above. At this stage, now, it is not open to the learned counsel for the defendant-petitioner to urge that the amount of rent should not have been determined @ Rs. 160/- per month. No other point was pressed before me.
20. For the reasons mentioned above, I find no force in this revision application and it is therefore dismissed. In the circumstances of the case, I direct that the parties shall bear their own costs of this revision application.
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