BATLIBOI AND CO LTD Vs. GOVIND NARAYAN

JUDGEMENT

(1.) This Special Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 has been filed against the judgment of learned single Judge of this Court, dated 22-1-1981, in Civil First Appeal No. 55 of 1980 upholding the judgment of the learned District Judge, Jaipur City, Jaipur dated April 26, 1980, in a suit for eviction.

(2.) The appellant is a tenant in certain premises situated in C-Scheme, Jaipur. The premises were taken on rent from one Moti Lal since deceased in his capacity as a Karta of the joint Hindu family, at Rs. 375 per month, from April 1, 1966. The rent was subsequently increased to Rs. 425 per month w. e. f. October 1, 1972. According to the plaintiffs Govind Narayan and Laxmi Narayan sons of late Moti Lal, the premises in question came in their share in pursuance to an oral partition alleged to have taken place on February 22, 1973. The defendant-appellant was informed about the oral partition by a notice dated December 12, 1973 and was asked to pay the rent to the plaintiffs only. A Civil Suit No. 132 of 1974 (7/75) was filed by the plaintiffs against the defendant- appellant on October 15, 1974 for eviction On several grounds, out of which one ground was that the defendant had neither paid nor tendered rent due from him for six months for the period January 1. 1974 till the date of the suit. The suit was contested on merits and the defendant came up with a case that he was always ready and willing to pay the rent and mentioned certain circumstances in the written statement, on account of which the rent could not be paid. The defendant specifically took the plea that he was not a defaulter as envisaged under Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (hereinafter referred to as the Act). The defendant had further taken the plea that on the date of the suit six months rent was not due as it had been deposited by him under Section 19-A of the Act. On December 6, 1974 the first date of hearing in the suit, the defendant neither paid the arrears of rent nor moved any application under Sub-section 5 of Section 13 of the Act, as it stood prior to the amending Ordinance No. 26 of 1975. The trial court on Aug. 7, 1975 passed an order striking out the defence against eviction. Thereafter the amending Ordinance No. 26 of 1975 came into force w. e. f. Sept. 29, 1975 later on replaced by Act No. 14 of 1976. Under Section 13-A as introduced by the amending Ordinance the defendant filed an application on October 22, 1975 and the Court determined the arrears of rent etc. in terms of Section 13-A (b) vide order dated 17-11-1975. The defendant paid the amount so determined, but the suit was not dismissed as other issues still remained to be tried.

(3.) The plaintiffs filed this second suit for eviction, out of which the present appeal arises, in the court of District Judge, Jaipur City, Jaipur on April 7, 1977 on the ground that the defendant has neither paid nor tendered the amount of rent due from him from November 1, 1975 to March 31, 1977. Thus this second suit has been filed only on the ground that the defendant again committed default under Section 13 (1) (a) of the Act. This suit was contested by the defendant on the ground that even in the earlier suit he had not committed any default and no benefit of Section 13-A had been taken by him in the earlier suit. Under these circumstances the trial court was bound to provisionally determine the amount of rent to be deposited by him in the court or to be paid to the landlord in accordance with the provisions of Sub-section (3) of Section 13 of the Act as it stands after the amending Act No. 14 of 1976. The defendant further denied the fact of partition between the plaintiffs and other co-sharers and he also denied the fact of being a defaulter. The defendant also denied the receipt of notice and further pleaded that he had deposited rent under Section 19-A amounting to Rs. 3400/- in-between 1-1-1976 to 31-8-1976 in two attempts. The question whether he was a defaulter in the first suit was a disputed matter and as such it cannot be said that he again committed a default for bringing a second suit against him. On the aforesaid pleadings of the parties, the learned trial court framed the following issues:--