JAMNA PRASAD Vs. DHABALI MANAKLAL

JUDGEMENT

(1.) THIS second appeal arises out of the judgment and decree dated 9.2.95 passed by the learned Addl. District Judge No. 2 Alwar where by the order and decree passed by the Addl. Civil Judge was reversed. In this second appeal learned counsel for the appellant has raised the following two legal questions, namely -

(2.) A suit for eviction was filed on 6.3.76 by the plaintiff. The rent was determined on 24.8.76. In respect of month of January, 1978 the rent was deposited late by 17 days and accordingly an application was made by the plaintiff on 6.2.79 to strike off the defence. The issue with regard to personal bona fide necessity was withdrawn by the plaintiff and the issue regarding nuisance was decided in favour of the tenant and the dispute raised with regard to default in making the payment of rent for the month of January, 1978. The suit was dismissed on 6.9.84 in respect of the above issue on the basis that the plaintiff has stated in his statement that the withdrawal of the money was not to condone the default of the defendant and subsequently said that it was for condoning the said default and on that basis the trial Court came to the conclusion that withdrawal of the money deposited by the defendant by the landlord amounts to waiver in view of the said statement. It may be observed that an application for condonation of delay was made in the Court but no order was passed thereon. The appellate court came to the conclusion that there are certain discrepancies in the application and no order for condonation of delay was passed by the Court. The statement given by the plaintiff cannot be considered to mean that he has condoned the delay. The fact that the application was made on 6.2.79 and that the suit is continuing since 1976 proves that the intention was not to waive the default by the plaintiff.

(3.) IT is further submitted that if there is default it should be deliberate or wilful and for that purpose reliance has been placed on the decision given by this court in the case of Bhagwan Das v. Moorti Mandir Ganeshiji Dhanroopji, 1991(1) RLR 619, wherein it was observed that the court should come to the conclusion that the default in complying with the order passed by it under Section 13(3) was wilful and contumacious. Reliance has also been placed on the decision of the Apex Court in the case of Santosh Mehta v. Om Parkash, AIR 1980 SC 1664 : 1980(2) RCR 516 (SC) wherein it was observed that failure to pay the rent coupled with defiance, of gross negligence on the part of tenant must exist. It may be observed that this point was not raised either before the trial Court or before the first appellate court and, therefore, it cannot be considered now. It may require the evidence whether default was deliberate or wilful, or simply raising this plea at this stage cannot be allowed. It has been submitted that if there is delay only of one month it should be condoned. Reliance has been placed on the case of Prahlad Kumar and another v. Babulal, 1990(2) RLR 649, wherein this court observed that discretion should be exercised by the trial Court for condoning the delay, rather than striking off the defence. No general rule can be laid down on this proposition that in every case where there is default in making the payment of rent for one month it has always to be condoned. It is a matter of discretion and if discretion has not been exercised in favour of the tenant then it was for the tenant to plead it before the first appellate court or even before the trial Court as to what was the reason for condoning the delay. For the purpose of raising this argument it has to be established as to whether there were sufficient reasons and for that purpose the evidence has to come on record. The appellate court has examined this issue and found that the application and affidavits submitted are contradictory. The fact of death of mother-in-law on 27.1.1978 was admitted, but it was found that the cutting in the dates shows that the affidavit cannot be relied upon. In other words the first appellate court has come to the conclusion that there is no reasonable cause for condoning the delay and in such a situation I do not consider that it is proper for this court to interfere.