GIRRAJ KISHORE SHARMA Vs. TEJMAL GUPTA

JUDGEMENT

(1.) -This is defendant's appeal against the decree and judgment dated 16-10-1987 passed by the learned District Judge, Kota in civil suit No. 149 / 84. The facts giving rise to this appeal are as under :- A suit for eviction on the grounds of default in payment of rent and bona fide personal necessity was filed by the plaintiffs against the defendant stating that the defendant was a tenant in respect of the shop in dispute at a monthly rent of Rs. 600.00 and had committed default in payment of rent which was due from him to the plaintiff respondents for the period from 1-6-1983 and the amount so due was Rs. 8400.00 for the period ending February, 1984 and that the shop in dispute was bona fide required by the plaintiffs for their personal use. The suit was contested by the defendant who controverted the ground of default as also the other ground. After hearing the learned counsel for the parties, vide order dated 30-9-1986 passed by the learned trial Court under sub-sec. (3) of S. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (the Act), the defendant was directed to pay to the plaintiffs or deposit in Court a sum of Rs. 23,400.00 towards rent for the period from 1-4-1983 to 31-8-1986 and Rs. 2223.00- by way of interest due on the said amount i.e. in all Rs. 25,623.00 within a period of 15 days from the said order and also the rent for subsequent months by 15th of each succeeding month. The defendant moved one after the other applications and the time for making deposits was extended under the orders of the Court but the rent was neither paid to the plaintiffs nor deposited in Court and consequently, an application having been moved by the plaintiffs the defence of the defendant against eviction was struck off vide order dated 26-3-1987. The other ground of eviction was given up by the plaintiffs who pressed only the ground of default of payment of rent for a period of more than six months. The learned trial Court after recording the evidence of the parties held that the defendant had committed default in payment of rent for more than six months and since he had not complied with the order passed under Section 13(3) of the Act, was liable to be evicted and as such a decree for recovery of possession of the shop in dispute besides for recovery of the sum of Rs. 25,623.00 with interest at the rate of 6% per annum was passed in favour of the plaintiffs, and against the defendant. It was further held that the plaintiffs are entitled to receive from the defendant a sum at the rate of Rs. 600.00 per month by way of charges for use and occupation of the shop in dispute from the date of filing of the suit till the possession of the shop in dispute is delivered to the plaintiffs. Feeling aggrieved the defendant has approached this Court by filing this appeal under Section 96 of the Code of Civil Procedure (the Code).

(2.) I have heard the learned counsel for the parties and have also perused the record of the case.

(3.) Shri Meherish, the learned counsel for the defendant-appellant, has not disputed that no amount was deposited by the defendant in the learned trial Court in compliance with the order passed under Section 13(3) of the Act, but has submitted that during the pendency of this appeal, the defendant has deposited the entire amount payable towards arrears of rent and that he has moved an application under Section 5 of the Limitation Act giving reasons as to why rent could not be deposited within the time granted by the learned trial Court and praying that the amount deposited in the learned trial Court during the pendency of this appeal be considered as the amount deposited in compliance with the order passed under Section 13(3) of the Act and the delay in depositing the rent be condoned. The contention of Shri Mandahana, the learned counsel for the plaintiffs respondent is that it was only when this Court directed vide order dated 2-5-1988 that the execution of the impunged decree shall be stayed during the pendency of the appeal only if the defendant appellant deposited the amount due by way of arrears of rent within the period specified in the said order, that the amount was deposited by the defendant and that such deposit cannot be treated as the deposit in compliance with the order under Section 13(3) of the Act and further that the reasons mentioned in the application for not depositing the amount during the pendency of the case in the learned trial Court are different than the ones mentioned in the applications moved by the defendant with a prayer that the time for depositing the rent in compliance with Section l3(3) of the Act be extended by the learned trial Court.