KEWAL Vs. SESMAL

JUDGEMENT

(1.) THIS appeal by the defendant-tenant under sec. 22 of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (which will hereinafter, for the sake of brevity, be referred to as 'the Act'), is directed against the order dated January 4, 1978 of the Additional Civil Judge, Jodhpur by which he struck out his defence against eviction. THIS order was passed by the Additional Civil Judge in Civil First Appeal No. 11 of 1977, which was filed by the plaintiff-landlord under sec, 96 C. P. C. against the judgment and decree dated November 26, 1974 of the Munsif City, Jodhpur. Reference herein to the provisions of the Act will be to those which existed than during the pendency of the suit and at the time of filing of Civil First Appeal No. 11 of 1977.

(2.) THE material facts, necessary for the disposal of this appeal, may briefly be noticed : THE plaintiff-respondent instituted a suit for arrears of rent and ejectment in the court of Munsif City, Jodhpur on July 3, 1972. THE eject-ment was sought, inter alia, on the ground that the defendant-tenant had not paid rent for the period of 16 months and 25 days upto July 2, 1972 and, therefore, he has rendered himself liable to eviction under sec. 13 (1) (a) of the Act. Another ground on which the ejectment was sought was reasonable and bona fide necessity of the plaintiff, which is a ground mentioned under sec. 13 (1) (b) of the Act, An application under sec. 13 (5) of the Act was filed by the defendant raising dispute regarding the amount of rent and stating that he is not a defaulter. THE learned Munsif determined Rs. 202 upto February, 1973 and directed the defendant to deposit it within 15 days from the date of the order i. e. March 24, 1973. He further ordered that rent for March, 1973 and later on should be deposited by the defendant as per sec. 13 (5) of the Act. THE suit was contested by the defendant vide written statement dated November 18, 1972. It was denied that the rent as claimed by the plaintiff was due from him and that he is a defaulter. THE trial court framed 4 issues inclusive of relief on April 7,1973. Issue No. 3, when translated into English, reads as under : "whether the defendant is a defaulter"? After trial, the learned Munsif by his judgment dated November, 26, 1974 dismissed the suit for ejectment and decreed it for Rs. 18 as rent. He decided issue No. 3 against the plaintiff and in favour of the defendant and held that it was proved that the rent upto April 12, 1972 has been paid and as such when the suit was instituted on July 3, 1972, six months' rent was not due and, therefore, the plaintiff cannot evict the defendant under sec. 13 (l) (a) of the Act, Against the dismissal of the suit, the plaintiff went in appeal and prayed that decree for ejectment and Rs. 83. 10 may be passed. This appeal was lodged on January 2, 1975 in the court of the District Judge. Jodhpur. It was however, transferred for disposal to the Additional Civil Judge, Jodhpur.

(3.) NOW I proceed to examine the appeal on merits. Mr. Rewa Chand, on behalf of the appellant, strenuously contended that it was not incumbent on the defendant-tenant to have deposited the rent month by month as required by s. 13 (4) of the Act after the dismissal of the suit for ejectment based, inter alia, on the ground of default in payment of rent, when the plaintiff has preferred the appeal against the judgment and decree dated November 26, 1974 on January 2, 1975. According to him, after the dismissal of the suit based on the ground of default in payment of rent, the parties were relegated to the same position, which existed prior to the filing of the suit and if the defendant-tenant had committed any default in payment of the rent month by month, the plaintiff could only institute a second suit for ejectment on the ground of default. He maintained that the learned Additional Civil Judge went wrong when he held that since the appeal is in continuation of the suit and so, the defendant should have deposited the rent month by month under s. 13 (4) of the Act. Mr. G. R. Singhvi, on the other hand, supported the order of the learned Additional Civil Judge in this regard. A serious question that, therefore, emerges for determination is whether it was necessary for the defendant-tenant to have deposited the rent month by month as required by s. 13 (4) of the Act after the dismissal of the suit, which, amongst others, was based on the ground of default, was dismissed as the defendant-tenant had not comitted any default in payment of rent within the meaning of s. 13 (l) (a) of the Act. The case of the plaintiff was that upto July 2, 1972, an amount of Rs. 101. 20 for 16 months and 26 days was outstanding against the defendant. The learned Munsif, after considering the evidence of the parties on record vide his judgment dated November 26, 1974, came to the conclusion that the defendant had paid rent upto April 12, 1972 and as the suit was filed on July 3. 1972, the rent for six months was not due and. therefore, he was not a defaulter in payment of rent. The suit of the plaintiff was dismissed and an appeal was filed by the plaintiff on January 2,1975. The applications for striking out defence against evidence were filed in the appeal on the grounds : (1) that the defendant had not deposited the rent month by month after November 26, 1974, the date when the suit was dismissed; and (2) that the defendant had not deposited the rent for the month of May, 1973 in the trial court in time. According to Section 13 (4), if the suit is based on the ground set forth in cl. (a) of sub-section (l)of section 13, with or without any other grounds referred in that subsection, the court, on the first date of hearing or on or before such date, as the court may, on the application made to it, fix in this behalf within such time not exceeding two months as may be extended by the court, the tenant is required to deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable upto the date of deposit and. thereafter, to continue to deposit or pay month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. Subsection (5) of s. 13 provided that if in any suit referred to in sub-sec. (4), there was any dispute as to the amount of rent payable by the tenant, the court was required to determine, having regard to the provisions of the Act. the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with sub-sec. (4) of s. 13. According to sub-sec. (7) of s. 13. if a tenant had made deposit or payment as required by sub-sec. (4) or sub-sec. (5), no decree for eviction on the ground specified in cl. (a) of sub-sec. (1) of sec. 13 could be passed by the court but the court had discretion to allow such costs as it deemed fit to the landlord. In this case, the dispute regarding the amount of rent payable by him (tenant) was raised by the defendant. The court determined the amount on March 24, 1973 at Rs. 202 and directed him to deposit within 15 days from the date of the order. After trial, the learned Munsif found that the defendant was not a defaulter within the meaning of sec. 13 (1) (a) of the Act, for, the rent of six months was not due on the date of the institution of the suit i. e. July 3, 1972, for, it was proved that the rent was paid upto April 12, 1972. The learned Additional Civil Judge, relying on Lalchand Jematmal vs. Nanabhai Ranchhod Das (l), held that as the defendant has failed to deposit the rent month by month after the service of notice on him of the appeal, which was filed by the plaintiff-respondent against the dismissal of the suit, inter alia, based on the ground of default under sec. 13 (l) (a) of the Act and so for non-compliance of the second part of section 13 (4) i. e. failure to deposit rent month by month, his defence should be struck out. This was based on the ground that appeal is a continuation of the suit.