RAMDEV KAJARIA Vs. VIJAY NARAYAN

JUDGEMENT

(1.) THE appellants, by this appeal, seek to challenge the judgment & decree passed by the learned lower Appellant Court decreeing the plaintiff's suit for eviction, and thereby setting aside the judgment of the learned trial Court.

(2.) THE plaintiff had filed the suit for eviction on two grounds viz. default in payment of rent for the period 1. 8. 1987 to 30. 6. 1988 i. e. 11 months, and the second being the defendant having caused substantial damage to the property. According to the defendant, the plaintiff is originally resident of Bhinasar, and lives in Calcutta, and that he had refused to remit the rent by money order, and therefore, as and when the plaintiff used to come, he receives the rent, and it is in this process that at the time of filing of suit, the amount for this period was due. Thus, the appellant has not committed any default. THE allegation of causing substantial damage was also denied. In trial the plaintiff did not appear in the witness box, and examined p. w. 1 power of attorney Shri Ram Narayan, while the defendant had examined himself, and also one witness Shri Panwan Kumar. Some documents were also produced on record including receipts of rent, original receipt book, copy of the pass book of the plaintiff's bank account etc. THE learned Trial Court found that in view of the judgment of this Court in Ram Prasad vs. Harinarayan (1988 (Raj.) 185), the power of attorney can appear only as a witness, and not as a litigant. THEn, while deciding issue No. 1 relating to plaintiff's entitlement to arrears of rent amounting to Rs. 1485/-, it was found that in para - 4 of the written statement, the defendant has admitted that rent is outstanding since 1. 8. 1987 which he is ready to pay. However, vide order dt. 15. 10. 91 provisional determination of rent was made which with the consent of the parties included the rent from 1. 8. 87. It was also found that consequent upon determination, the defendant has paid the entire rent, nothing is outstanding. Deciding issue No. 2 relating to default, it was found that the tenancy was oral, and there is nothing to prove that it was the plaintiff's responsibility to collect the rent, and admittedly the defendant has not paid the rent after 31. 7. 87, and then excluding the evidence of power of attorney as plaintiff, but reading his statement as statement of witness, considering the admission of the defendant made in the written statement it was found the the defendant has committed default, but then he was given benefit of Section 13 (6) of the Rajasthan Premises (Control of Rent & Eviction) Act, in short the Act. Issue No. 3 was decided against the plaintiff, and in the and vide judgment dt. 23. 9. 98 the suit was dismissed. In plaintiff's appeal it was contended that the defendant had not complied with the requirement of Section 13 (4), and therefore, he was not entitled to benefit under Section 13 (6) of the Act. On the other hand, it was contended by the appellant before the learned lower Appellant Court that the defendant has rightly been given benefit of section 13 (6) of the Act, the plaintiff has not produced any statement to show that monthly rent was deposited in time rather the rent was deposited within the extended period. Controverting this, it was contended by the plaintiff that the receipts of rent are already there on record. Learned lower Appellant Court found that on 15. 7. 98 an application was filed by the plaintiff under Order 13 Rule 2 for producing the copy of the bank statement to show that subsequent monthly rent has not been deposited in time, the defendant also, on 14. 8. 1998 filed an application accompanied with the statement of rent deposited by him. THE learned lower Appellant Court found that from this statement it s clear that rent for the period March, 1994 was not deposited before 15. 4. 94, but was deposited on 9. 5. 94. On 9. 5. 94, rent for three months was deposited which included rent for March, 1994, and in the application dt. 14. 8. 1998 the defendant had claimed that the delay in depositing rent be condoned. It was noticed that there is nothing on record to show that this application was ever decided rather of course vide order-sheet dt. 26. 8. 1998 the documents produced by the parties were taken on record. Thus, it was found that there is nothing to show that the delay in depositing the rent was condoned, while according to the judgment of Hon'ble the Supreme Court in Nasiruddin vs. Sitaram (2003 DNJ (SC) 180 = RLW 2003 (2) SC 315), the provisions of Sec. 5 Limitation Act are not applicable to the requirements of Sec. 13 (3) and 13 (4) of the Act. Thus, it was found that the learned Trial Court was in error in giving benefit of Sec. 13 (6) the defendant. THE finding of the learned Trial Court on issue No. 3 regarding defendant's causing substantial damage to the property was, however , upheld. In the result, in view of the defendant having not been found entitled to the benefit of Section 13 (6), the suit was decreed.

(3.) OF course, after my rendering the judgment in Jagan Nath's case, judgment of Hon'ble the Supreme Court in Nasiruddin's case came, with the result that discussions made by me in Jagan Nath's case on the anvil of Section 5 of the Limitation Act became irrelevant, but then I maintain the reasonings given by me about the consequences of non-striking out of the defence, even in cases where the defendant has not made deposit, of payment of the rent as required by Section 13 (4) of the Act to the effect that to that extent the tenant will not be entitled to the benefit under Section 13 (6) of the Act.