BHOJU MAL Vs. KISHAN LAL

JUDGEMENT

(1.) Though both the appeals arise in different suits and have been filed against different judgments and decrees but in the these appeals points of law involved are common and, therefore, both the appeals can be conveniently disposed of by a common judgment. First I will give brief facts of the cases and then deal with the common points involved.

(2.) Civil Appeal No. 312/80 arises out of civil suit No. 68/80 (8/79) filed by the respondent Kishan Lal, against Bhoujumal for eviction of a portion of a house No. 1878 situated in Khajane-walon Ka Rasta, Jaipur. The suit premises were on rent with the appellant at Rs. 24/- PM. The only ground on which the suit for eviction was filed was under Section 13(i)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (herein after referred to as the Act) to the effect that the rent due from May 6, 1977 has not been paid and thus the rent for more than six months was due. The rent the period September 6, 1977 to January 5, 1979 was claimed. The learned trial Court under Section 13(3) of the Act provisionally determined the amount of rent for the period May 6, 1977 to the date of the order by its order dated July 25, 1979. The arrears of rent and interest determined were paid by the appellant on October 5, 1979. On the same date the rent for two months i.e. for the period July 6, 1979 to September 5, 1979 amounting to Rs. 48/- was paid. It was accepted by the learned Advocate for respondent against a receipt. On the same either before accepting the rent or thereafter an application under Section 13(5) of the Act by the respondent praying that because the appellant has not complied in the provisions of Section 13(4) of the Act his defence against eviction be struck out. An application was filed on February 11, 1980 on behalf of the appellant that his defence against eviction cannot be struck out and because the suit was based only on default and the amount determined under Section (3) of Section 13 of the Act has been paid the suit should be dismissed.

(3.) Civil Appeal No. 313/80 arises out of a civil suit No. 62/80 (7/79) filed by the respondent against the appellant, Jethanand for eviction on the ground under Section 13(i)(a) of the Act that the appellant has neither paid nor tendered rent due for six months. It was averred in the plaint that the suit premises were on rent with the appellant with effect from September 9, 1967 at Rs. 39/- P.M. Thereafter, the rent was increased to Rs. 44/- P.M. The rent has neither been paid nor tendered by the appellant with effect from May 9, 1977. In the suit rent from September 9, 1977 to the date of the suit was claimed. The learned trial Court provisionally determined the amount of arrears of rent and interest under its order dated July 25, 1979. On October 5, 1979 the amount so determined was paid to the advocate for the respondent. On the same date rent for two months for the period July 9, 1979 to September 8, 1979 amounting to Rs. 88/- was also paid to the Advocate for the respondent. An application was filed on behalf of the respondent that because the appellant has not complied with the provisions of sub-section 4 of Section 13 of the Act in as much as he had not paid the rent for the period July 9, 1979 to August 8, 1979 within time allowed under sub-section (4) of the Section 13 of the Act his defence against eviction be struck out. An application was filed on behalf of the appellant on February 11, 1980 that because the suit was based only on the ground of default and the amount determined under sub-section 3 of Section 13 of the Act has been paid, the suit should be dismissed.