KAILASH INDUSTRIAL MILLS Vs. SHANTI SWARUP

JUDGEMENT

(1.) This is an appeal by the defendant against the order dated 16-10-1979 passed by the Additional District Judge No. 1, Hanumangarh, whereby the defendant's defence against his eviction was struck out under Sub-section (5) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act").

(2.) The facts leading to the present appeal, may briefly be stated as follows: The plaintiff-respondents instituted a suit for arrears of rent and ejectment, in the court of Additional District Judge, No. 1, Hanumangarh. On 23-4-1979 the Court determined the arrears of rent and interest thereon under Sub-section (3) of Section 13 of the Act. A sum of Rs. 9,000/- as rent and Rs. 832.50 p. as interest thereon, total Rs. 9,832.50 p was paid by the defendant to the plaintiff Shanti Swarup. The rent paid was up to 31-3-1979. The defendant was further directed to make payment of monthly rent of Rs. 250/- by the fifteenth of every succeeding month to the plaintiff and in case the plaintiff refuses to accept the same, the defendant may deposit the amount of rent in court. The defendant paid rent for the month of April 1979 to the plaintiff Shanti Swarup on 7-5-1970. On 2-7-1970 a sum of Rs. 500/-was deposited by the defendant in court being the rent for the months of May and June 1979. On 13-71979, the plaintiffs moved an application under Section 13 (5) of the Act for striking out the defence, on the ground that the defendant had committed default in the payment of rent for the month of May 1979. A reply to the application was filed to the effect that civil courts were closed on account of Summer Vacation and the courts reopened on 27-1979, on that date the amount of rent for the month of May 1979 as well as for the month of June 1979 was deposited. Thus, no default was committed and the defence against eviction, is not liable to be struck out. The learned Additional District Judge, after hearing the arguments on the application, passed the impugned order striking out the defence against eviction. The learned trial court proceeded to pass the impugned order on the basis that it was open to the defendant to make payment of rent to the plaintiff. This alternative available to the defendant, was not availed of, so the defendant cannot take advantage of the court being closed on account of Summer Vacation. Dissatisfied with the order of the learned trial court, the defendant has preferred this appeal.

(3.) On behalf of the defendant-appellant Shri. Rajendra Mehta, learned counsel for the appellant, submitted that under Section 13 (4) of the Act the defendant had the option either to pay the amount, of rent to the plaintiffs or to deposit the same in court. The amount of rent for the month of May 1979 was to be paid or deposited by 15-6-1979, but the court was closed so it could not be deposited and when the court reopened on 2-7-1979, the amount of rent for the month of May 1979 was deposited along with the rent for the month of June 1979. He urged that Section 11 of the Rajas-than General Clauses Act is attracted to the present case and the defendant could only deposit the amount of rent when the court reopened, so his act of depositing of rent should be deemed to have been performed within time as provided in Sub-section (4) of Section 13 of the Act. It was also urged that when the law gives option either to make payment to the plaintiff or to deposit the amount of rent, it was not necessary for the defendant to offer the amount of rent to the plaintiff, although the order of the court passed on 23-4-1979 was to the effect that in case the plaintiff refuses to accept the amount of rent, the defendant may deposit the same in court. In support of his contention Shri Mehta placed reliance on Bhagwandas Tiwari v. Gaya Prasad (1975 Ren CJ (SN) 21) (Madh Pra) and Mst. Sakina Bi v. Smt. Shambhoo Bai (1977) 2 Ren CJ 230 (Madh Pra), and an unreported judgment of this Court in Civil Revn. Petn. No. 611 of 1975 -- Lakhpatraj v. Dr. Narendrapal Gupta, decided on 21-2-1979.