JETHA NAND Vs. KISHAN LAL

JUDGEMENT

(1.) Though both the appeals arise in different suits and have been filed against different judgments and decrees but in 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 P.M. 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 (hereinafter 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 for the period Sept. 6, 1977 to Jan. 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 Oct. 5, 1979. On the same date the rent for two months i.e. for the period of July 6, 1979 to Sept. 5, 1979 amounting to Rs. 48.00 was paid and it was accepted by the learned Advocate for the respondent against a receipt. On the same date either before accepting the rent or thereafter an application under section 13(5) of the act was filed by the respondent praying that because the appellant has not complied with the provisions of section 13(4) of the Act his defence against eviction he struck out. An application was filed on Feb. 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 sub-section. (4) 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/R0(7/79) filed by the respondent against the appellant, Jethanand for eviction 0-1 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 Sept. 9, 1967 at Rs. 39.00 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 Sept. 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 Oct. 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 Sept. 8, 1979 amounting to Rs. 88.00 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 11 of the Act inasmuch as he had not paid the rent for the period July 9, 1979 to Aug. 8, 1979 within time allowed under sub-section (4) of section 13 of the Act, his defence against eviction be struck out. An application was filed on behalf of the appellant on Feb. 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.