PANJI ALIASPANNA RAMJI Vs. BHAGCHAND

JUDGEMENT

(1.) - The revision petition directed against the order dated 29. 2. 92 passed by learned Civil Judge, Pali has arisen in the following circumstances. A suit for eviction was filed in 1977 by the plaintiff-non-petitioner inter-alia on the ground that the tenant-defendant has committed default in payment of rent. The defence of the defendants-petitioner was struck off on 18. 3. 1985 as he failed to deposit or pay the amount as required u/s 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The defendant preferred an appeal which was dismissed on 17. 10. 87. His revision before this Court also failed, on 18. 2. 1988. Therefore, on 12. 2. 92 the defendant-petitioner moved an application u/s 5 of the Limitation Act for condoning the delay in the deposit of rent beyond the time prescribed u/s. 13 (4) on the basis of which defence of the defendants had been struck out. The ground furnished by the defendant was that subsequent to the order of striking out the defence had become final at this Court in Vishandas vs. Savitri Devi (1), laid down the law that the courts have power to extend the time of deposit prescribed under Section 13 (4) beyond the time fixed in the statute and Section 5 of the Limitation Act applies for deposit of amount beyond times. The application has been rejected by the trial Court on the ground that the order on striking out of defence having become final, the same cannot be reopened merely on the basis of decision given in Vishandas's case. The learrled counsel for the petitioner contends that the trial court has failed to exercise its jurisdiction vested in it by law in refusing to entertain his application for condonation of delay in making deposit, notwithstanding the clear pronouncement of this Court in Vishandas's case. He in his support relies on the decision of Gopal Singh vs. Smt. Suraj Devi

(2.) HAVING carefully considered the contention of the learned counsel for the petitioner, I am unable to accept the same. A careful consideration of the scheme of Section 13 and principle enuncialted in Vishandas's case (supra) does not lead to the conclusion as suggested by the learned counsel for the petitioner. Plainly speaking in a suit for eviction based on the ground of default, the scheme of Sections 13 (3) to 13 (6) provides for an additional protection to the tenant against the eviction on his making payment of the arrears of rent and future rent within the time prescribed u/s 13 (4) and these provisions also ensure, apart from providing additional protection, the due payment of rent to the landlord. Keeping in view the twin objects, consequence for deposit within time as well as the consequence of not depositing the rent within time u/s 13 (4) have been provided separately. While the consequence of non deposit of rent is that the defence of the tenant against the eviction under the Act is liable to be struck-out, if he deposit the rent as required, be is protected from a decree of eviction on the ground of default as he has made good default. In these circumstances, the foundation of an orde. for striking out the defence is that the defendant has failed to deposit or make the payment of the amount as required by sub-section (4) of Section 13 within the time specified therein. The decision in Vishandas's case does not alter this position. The decision in Vishandas's case only refers to the controversy regarding the extent and scpre of the discretion of the Court in extending the period within which the amount is required to be deposited. The one view was that the court had no jurisdiction to extend the time beyond the one prescribed under the statute. The other view was that the Court had such inherent power. The Full Bench has accepted the later principle. Therefore, so far as the decision of the Full Bench is concerned, it refers to the question of the existence of discretion in the Court concerning the extension of time. In these circumstances, it cannot be said that where the Court- has already decided upon to give effect to the consequence of non-depositing the rent and the amount as required in sub-section (4) of section 13 by striking out the defence of the tenant under the Act, the fact that such order was passed on an erroneous assumption about the scope and extend of the Court's jurisdiction to extend time does not affect the validity and finality of the order already passed. In that event if the defendant tenant if at all had any remedy, it was to have recourse to make an application for review of the earlier order passed and get the application for striking out the defence redetermined after recalling the earlier order of the striking out of the defence in accordance with law. The limitation for making an application for review is 30 days from the date of the order sought to be revieved subject to other provisions of the Limitation Act including Section 5 of the Limitation Act. In the present case, no such application for recalling the order for striking out the defence was filed. For the first time application under Section 5 was moved on 12. 2. 92 that is to say about seven years after the order of striking out of defence was made on 18. 3. 85 and four years after this Court upheld the order by dismissing revision on 18. 2. 88. More than four years also elapsed since decision in Vishandas was rendered on 8. 2. 88.

(3.) THE decision Gopal Singh's case (supra) relied on by the learned counsel for the appellant in this regard is not applicable to the controversy raised in this petition. It was a case in which the defence of the defendant-tenant was struck off on the ground that he has deposited the rent for the month of May a. 06. 1978 late. After the order has become final, it was discovered that the amount of interest was calculated excessively by the Court while determining the amount payable u/s 13 (3) which was deposited on the very same date. Thus, the tenant has already, made excessive deposit of the amount prior to the rent for the month had become due and by taking into account such excessive deposit no default was made in making payment within time and application was moved for Correcting that error THEre was no dispute about the fact that the tenant has deposited in fact excessive amount and by taking into consideration such excessive deposit there was no default that is to say there was no foundation for having recourse to section 13 (5) of the Act for striking out the defence and the application for correcting that error apparent on the face of record was moved and allowed by the Court by making reference to Section 151 and 152 of Civil Procedure Code. It may also be noticed that even in that case an application was moved for correcting the earlier order and the Court held it was a case of arithmatical mistake. Present is not a case of that nature. THE fact that the Court has jurisdiction to extentd the time does not remove the foundation on which the order dated 18. 3. 85 was founded namely that the amount of rent has been deposited beyond the time allowed under the Act. THE order was otherwise legal and valid and even the exercise of discretion for extending time is not automatic. It depends on the conduct of the defendant in making deposits not within time. THErefore it is not a case where the order striking out the defence has been made without any foundation lacking in existen of substantively facts constituting pre-condition for such orders as was the case in Gopal Das. THE application simply for condoning delay in making payment in the present case was not maintainable. Moreover, the Court on facts, also found that the cause disclosed by the petitioner that default was committed on account of misconception about the month with reference to which amount was to be deposited by the petitioner due to confusion between regorian Calanader and Vikram Samvat is not well founded with Which I am in agreement.