B B BHALLA Vs. RAMESHWAR KRISHORE BADHWAR

JUDGEMENT

(1.) THE suit instituted by the plaintiff respondent for eviction in regard to tenanted premises against the defendant appellant was based on the ground of default enumerated under Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (for short the Rent Act ). THE defendant appellant submitted written statement denying the allegations. After plaintiff respondent filed a rejoinder, the learned trial court formulated as many as six issues out of which issue No. 3 was as follows- "whether the defendant committed default in making payment of rent?

(2.) BURDEN to prove this issue was laid on the defendant appellant. Learned trial court determined the rent under section 13 (3) of the Rent Act. Thereafter vide order dated December 10, 1980 struck out the defence against eviction of the defendant under Section 13 (5) of the Rent Act holding that the defendant did not deposit the rent for the month of November and December 1978 in time. The plaintiff respondent did not at all adduce the evidence. The defendant himself appeared in the witness Box as DW. 1. Learned trial court vide decree and judgment dated February 16, 1990 decided all the issues against the defendant and decreed the suit of the plaintiff. After unsuccessful first appeal, the defendant has preferred the instant second appeal.

(3.) ON April 1, 1978 the plaintiff instituted a civil suit against the defendant in the trial court seeking decree for eviction and arrears of rent. It was averred in the plaint that the defendant came into occupation of the suit premises as a monthly tenant, agreeing to pay monthly rent of Rs. 138/ -. The defendant failed to pay rent from the month of April 1977 and became defaulter making himself liable to be evicted from the suit premises. The plaintiff prayed for the eviction of the defendant, arrears of rent in the sum of Rs. 1380/- for the month of April 1977 to January 1978 and Rs. 276/- towards use and occupation charges and the costs of the suit. The defendant in the written statement denied the allegations of his being defaulter and pleaded that the plaintiff with an ulterior motive enhanced the monthly rent and purposefully refused to accept the rent while tendered by the defendant. The defendant desired the determination of provisional rent under section 13 (3) of the Rent Act. Learned trial court determined the provisional rent vide its order dated November 17, 1978 and the defendant was directed to deposit Rs. 2738=90 i. e. rent from April 1, 1977 to October 31, 1978 including interest. Defendant was further required to pay to the plaintiff the monthly rent subsequent to the period upto which the determination was made. ON the prayer of the defendant the trial court vide its order dated December 1, 1978 extended time to deposit the provisional rent upto February 2, 1979 and the defendant within the extended time i. e. on January 30, 1979 deposited Rs. 3153=91 i. e. the determined provisional rent including the rent for the months of November and December 1978 and January 1979. Thereafter the plaintiff on March 26, 1980 moved an application under Section 13 (5) of the Rent Act for striking out defence against eviction of the defendant on the allegations that the defendant delayed the payment of rent for the months of November and December 1978. The defendant in his reply asserted that the rent for the month of November and December was deposited alongwith the determined provisional rent bonafidely and delay in depositing the same was bonafide and the same may be condoned. But the learned trial court vide its order dated December 10, 1980 struck off the defence against eviction of the defendant holding that it had no power to condone the delay. The defendant preferred appeal and revision against the said order but did not get success. This court vide order dated May 20, 1983 dismissed the revision preferred by the defendant. Thereafter Special Leave Petition (Civil) No. 11738/1983 submitted before the Hon'ble Supreme Court was dismissed as withdrawn on January 27, 1986.