JEGDISH PRASAD Vs. FIROZIBAI

JUDGEMENT

(1.) THE only question, though a crucial one, which falls for determination in this petition of revision is whether the rights and liabilities of the landlord and tenant in a suit for eviction instituted, under section 13, Rajasthan Premises (Control of Rent and Eviction), Act, 1950, (hereafter called the Act), before the amendment of the Act by Rajasthan Ordinance No. 26 of 1975, since replaced by the Rajasthan Amending Act No. 14 of 1976 are governed by section 13, as it stood before the amendment or by the amendments enacted during the pendency of the suit. It has arisen in the following circumstances.

(2.) THE landlord, Firozibai brought a suit against Jagdish Prasad and Ram Bharoselal, her tenants, for a decree for eviction from a shop on the ground inter alia, that they had neither paid nor tendered the amount of rent due from them for six months. On April 5, 1973, which appears to have been the first day of hearing in the suit, the tenants deposited in the court a sum of Rs. 325/-consisting of arrears of rent, Rs. 275/- from May 2, 1972 to April 1, 1973, calculated at the rate of Rs. 25/- per mensem, and Rs. 50/-, towards costs and interest on the amount of aforesaid arrears. THE tenants continued to deposit or pay the rent regularly month by month, at the rate of Rs. 25/- per mensem till June 1, 1976. THE rent for the month from June 2, 1976 to July 1, 1976, which was required to be deposited or paid by July 16,1976, was admittedly not deposited till August 12, 1976. THE landlord made an application, dated, August 27, 1976, for an order striking out the defence against eviction in accordance with the provisions of section 13 of the Act. THE tenants contended the said application and pleaded that they had tendered the rent to the landlord and that it was only on her refusal that they had made the deposit in the court on August 12, 1976. It appears that, during arguments in the courts below, an additional plea was raised on behalf of the tenants to the effect that, as on April 5, 1973, when they made the deposit of Rs. 325/- in the court, a sum of Rs. 275/- as arrears of rent and Rs. 9/- as interest thereon, in all Rs. 284/- only were due from them and that thus an amount of Rs. 41/- had all along been lying in excess with the landlord who could quite conveniently appropriate therefrom a sum of Rs. 25/-towards rent for the period from June 2 to July 1, 1976.

(3.) MR. B. P. Agrawal, learned counsel for the tenants then argued that the tenant's defence against eviction cannot be validly struck out under section 13 (5) of the Act, as it stands now after the amendments enacted during the pendency of the suit, because, as he syllogised, section 13 (5) cannot come into operation without a prior determination of rent by the court under section 13 (3) and there was no such prior determination by the court in this case This argument in so far as it goes, is not open to question. A plain reading of the provisions of sub-sections 3, 4 and 5 of section 13 of the Act, as amended during the pendency of the suit, would at once show that the order under sub-section 5, striking out the defence against eviction could only be made in a case in which the court had first provisionally determined under sub-section 3, the amount of rent to be deposited in the court or paid to the landlord by the tenant, and, while making such determination, had also indicated its decision regarding the rate of rent if the rate claimed by the landlord was disputed by the tenant. There was no question of any provisional determination of the arrears of rent and the rate of rent under sub-section 3 of section 13 of the Act in the instant case for this sub section was not even in existence at the material time. It was enacted more than two years after the initial deposit was made by the tenants. That being so, no order striking out the defence against eviction could legally be passed under section 13 (5) of the Act in the facts of this case.