RAVINDRA SINGH Vs. ADDL. DISTT. JUDGE

JUDGEMENT

(1.) A challenge has been made by the petitioner-defendant-tenant (hereinafter 'the tenant') to the order dated 30-11-2010 passed by Additional Civil Judge (Junior Division) No.1, Alwar in case No.291/1995, titled Santosh Devi Vs. Ravindra Singh (hereinafter 'the trial court') allowing an application filed by Smt. Santosh Devi, respondent No.3- Plaintiff landlord (hereinafter 'the landlord') under Section 13 (5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter 'the 1950 Act'), consequent to which the defence of the tenant in eviction petition qua the ground of default was struck off. The petitioner is also aggrieved of the order dated 13-4-2012 passed by Additional District Judge No.2, Alwar upholding the order dated 30-11-2010.

(2.) THE facts of the case are that the landlord filed a suit for eviction against the tenant in respect of a tenanted residential house on the ground of bonafide need, default, material alterations without consent and nuisance. On an application moved by the landlord provisional rent was determined on 24-10-1992. The tenant challenged the said order upto the High Court. This court vide order dated 4-7-1996 allowed the tenant fifteen days time to deposit the arrears of provisional rent. The rent however was not deposited within the fifteen days, time period allowed, but was deposited on 12-9-1996. In these circumstances the landlord moved an application under Section 13 (5) of the 1950 Act on 30-3-1998. It was stated in the application that the tenant having failed to deposit the arrears of provisional rent as determined under Section 13 (3) of the 1950 Act, within time permitted by the court his defence was liable to struck off on the issue of default. In reply to aforesaid application the tenant submitted that the delay in depositing the arrears of provisional rent was not fatal as on 23-11-2002 the landlord had withdrawn the provisional rent which was deposited on 12-9-1996 and thus waived his right to have the tenant's defence struck off under Section 13 (5) of the 1950 Act. The trial court as also the appellate court vide impugned orders dated 30-11-2010 and 13-4-2012 however negatived the defence of the tenant to the application under Section 13 (5) of the 1950 Act and struck off the defence of the tenant on the issue of default on the finding that the provisional rent and arrears had not been deposited within permissible time. The tenant was however free to contest his case on other grounds set up in eviction suit such as bonafide need, material alterations without landlord's consent and nuisance.

(3.) COUNSEL further submits that in any event of the matter the landlord having withdrawn the provisional rent, deposited on 12-9-1996 was to be considered as having waived his right and at the time of the hearing of the application for striking off defence of the tenant the aforesaid waiver operated, the application should have been dismissed. Reliance has been placed on the judgment of this court in case of Chetan Das Vs. Annusuiya [1996 (1) WLC (Raj.) 245] to contend that the landlord on the date of consideration of application under Section 13 (5) of the 1950 Act having already withdrawn the amount of provisional rent had waived his right. It is submitted that the courts below thus also erred in striking off the defence of the tenant under Section 13 (5) of the 1950 Act.