MOOL CHAND Vs. GULSHAN

JUDGEMENT

(1.) This appeal is directed against the order dated 25.11.2012 passed by the First Appellate Court, whereby the application filed by the respondent-landlord under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 ('the Act') was allowed and defence against eviction of the appellant was struck off.

(2.) The suit was decreed by the trial court on 24.3.2005, whereby it was held that the appellant had committed default in payment of rent, benefit of first default was given and the respondent was held to be having personal and bonafide necessity of the suit premises.

(3.) Against the decree dated 24.3.2005, an appeal was filed. During the pendency of the appeal, the appellant-tenant filed application dated 21.7.2005 with the averments that the landlord with a view to make the appellant-defaulter was not accepting the rent despite being tendered and therefore, the Court may permit him to deposit the rent in the Court. The application was allowed and the Court by order dated 18.11.2005 permitted the appellant to deposit the rent before the trial court. It is claimed that as the record of the trial court was lying with the First Appellate Court, the trial court refused to deposit the rent. However, after passage of five years, an application dated 10.11.2010 was filed by the landlord before the First Appellate Court under Section 13(5) of the Act pointed out that despite order dated 18.11.2005, the rent has not been deposited and therefore, defence against eviction be struck off. A reply to the application was filed and it was pointed out that as the record was lying with the appellate court, the amount could not be deposited in terms of the order dated 18.11.2005. After hearing the parties, the trial court was of the opinion that the action of the appellant in not depositing the rent for a period of five years on the pretext of the record lying with the First Appellate Court was apparently not bonafide and therefore, relying on the law laid down by the Hon'ble Supreme Court in the case of Shiv Dutt Jhadiya v. Ganga Devi, 2002 3 SCC 189 allowed the application and struck off the defence.