RADHA KISHAN Vs. GULSHAN BEHARI

JUDGEMENT

(1.) THIS second appeal has been filed by the appellant-plaintiff against the judgment and decree dated 29. 4. 1989 passed by the learned District Judge, Churu by which he dismissed the appeal of the appellant-plaintiff and confirmed the judgment and decree dated 16. 2. 1981 passed by the learned Munsiff, Churu by which learned Munsiff dismissed the suit filed by the plaintiff-appellant for eviction and arrears of rent against the original defendant Gulshan Behari.

(2.) IT arises in the following circumstances :- The plaintiff-appellant filed a suit for eviction and arrears of rent under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as `the Act of 1950') on various grounds including on ground of default under Section 13 (1) (a) of the Act of 1950 against original defendant Gulshan Behari on 27. 5. 1974 stating inter-alia that there was a house belonging to the plaintiff-appellant and the details of which are given in para 1 of the plaintiff and some portion of that house was taken on rent by the original defendant Gulshan Behari on 1. 4. 1970 and agreed to pay rent of Rs. 30/- per month and executed rent dated Ex. /1 in favour of the plaintiff- appellant. IT was further stated in the plaint that on 1. 6. 1970, the original defendant Gulshan Behari further executed a rent deed Ex. /2 and took out some other portion of that house on rent and for that he agreed to pay Rs. 30/- per month. IT was further stated in the plaint that original defendant paid rent upto 30. 9. 1970 and since 1. 10. 1970 rent was due and thus, default had been committed by the original defendant in making payment of the rent for the period 1. 10. 1970 upto 30. 4. 1974, which came to Rs. 2520/- and thus, plaintiff-appellant sought eviction of the original defendant Gulshan Behari on the ground of default under Section 13 (1) (a) of the Act of 1950. IT may be stated here that since this second appeal is admitted pertaining to the issue of default, therefore, rest of the averments made in the plaint are not being discussed here. In para 8 of the plaint, it has been averred by the plaintiff appellant that since rent for the period more than three years had become time barred, therefore, he claimed rent for 36 months only and for that period, he claimed Rs. 2160/- and rest amount he abandoned. The suit of the plaintiff-appellant on the above point was contested by the original defendant Gulshan Behari by filing written statement on 5. 9. 1974 stating that whole premises were taken on monthly rent of Rs. 30/- and he had committed no default in making payment of rent as rent was tendered to the plaintiff- appellant through money orders and when he did not take that rent, he deposited the rent under section 19a of the Act of 1950 for the period from 1. 12. 1970 to 30. 6. 1972. On the pleadings of the parties, learned Munsiff framed issues on 24. 3. 1975 and the relevant issue No. 1 is as follows :- *** Thereafter, evidence was led by both the parties. After recording evidence and hearing both the parties, the learned Munsiff, Churu through his judgment and decree dated 16. 2. 1981 dismissed the suit of the plaintiff-appellant. The issue No. 1 was decided in the following manner :- (1) That the learned Munsiff came to the conclusion that monthly rent of both the premises was Rs. 60/- per month, as per rent deeds Ex. 1 and Ex. 2 and thus, original defendant was required to pay Rs. 60/- per month. (2) That on point of default, the learned Munsiff held that original defendant has not committed any default as on the first date of hearing i. e. on 5. 9. 1974, he deposited the rent and the details of amount due and the manner in which the payment was made by the original defendant are as under :- Amount of rent due mode of payment For the period 1. 5. 1971 to0. 8. 1974 :- Rs. 2400/- Rs. 2200/- was deposited in cash through tender and the remaining amount of Rs. 570/- was adjusted by original-defendant which was deposited by him u/s. 19a of the Act of 1950 on 9. 10. 1972. As Cost :- Rs. 370/- Total Rs. 2770/- (3) Thus, learned Munsiff decided issue No. 1 against the plaintiff-appellant and in favour of the original defendant and the suit of the plaintiff-appellant for eviction of the original defendant was dismissed. Aggrieved from the judgment and decree dated 16. 2. 1981 passed by the learned Munsiff, Churu, the plaintiff-appellant preferred an appeal before the learned District Judge, Churu, who also through his judgment and decree dated 29. 4. 1989 dismissed the appeal of the plaintiff-appellant and upheld the findings on issue No. 1 as given by the learned Munsiff, Churu in his judgment dated 16. 2. 1981. In other words, the learned District Judge accepted the findings in toto of the learned Munsiff on issue No. 1 pertaining to default. Aggrieved from the said judgment and decree dated 29. 4. 1989 passed by the learned District Judge, Churu, this second appeal was filed by the plaintiff-appellant.

(3.) SO far as the law laid down in Kuldeep Singh's case (supra) and Bajranglal's case (supra) is concerned, it has been held in both authorities that deposit of rent under Section 19a of the Act of 1950 can be made only if conditions laid down in clause (c) of sub-section (3) of Section 19a of the Act of 1950 are fulfilled and unless and until compliance of that clause is made, tenant cannot avail protection of sub-section (4) of Section 19a of the Act of 1950.