PRAKASH CHAND Vs. FIRM POHAP SINGH KISHAN SAHAI

JUDGEMENT

(1.) THESE two cross appeals u/s. 100 CPC is a usual chequered history of protracted litigation between landlord and tenant. A pair of two shops known as `jota' shop which has no wall in between but two separate entrance gates situated at Ramganj Bazar, Station Road, Alwar was given on rent of Rs. 110/- per month by the plaintiff Prakash Chand Goyal to the defendant, firm M/s. Pohap Singh Kishan Sahai. The suit was filed for eviction of the said shop on the ground of personal bona fide necessity and default in payment of rent. The said suit was decreed by the trial Court on 27. 1. 1984. The first appeal against the said judgment and decree of the trial Court was disposed of on 20. 7. 1985 by framing an additional issue No. 7 on the issue of partial eviction and the matter was remanded back under Order 41 Rule 5 CPC to the trial Court for return of its finding on the said additional issue. The trial Court vide its order dated 31. 3. 1986, after taking additional evidence on the said additional issue No. 7 of partial eviction, found that the suit could be decreed by directing partial eviction of the suit premises namely; shop in question and the trial court held that the said `jota' shop could be divided in half and one portion towards the stair case could be kept by the landlord and the other portion by the tenant. After finding of issue No. 7 was returned by the trial Court vide order dated 31. 3. 1986, the first appeal of the tenant namely; appeal No. 56/88 along with cross objections of the landlord No. 57/88 came to be decided by the first Appellate Court of Addl. District & Sessions Judge No. 2, Alwar on 17. 5. 1990 and the tenant's appeal was rejected vide the operative part of the said order dated 17. 5. 1990.

(2.) HOWEVER, since the findings on the issue of default issue No. 4 and partial eviction issue No. 7 were given in favour of the tenant the mention in the operative part of the said order dated 17. 5. 1990 that the appeal of the appellant is rejected as also the cross objections of the landlord were rejected was apparently not correct. The matter was thus brought before this Court by way of second appeal at the instance of tenant and the said second appeal No. 124/90 came to be allowed by this Court on 8. 8. 1990 with a direction to the Appellate Court to amend the operative part of the judgment and consequent amendment in the decree. After the said remand by High Court the first Appellate Court again disposed of the said appeal vide order dated 8. 1. 1993 partly allowing the appeal of the tenant and rejected the cross objections of the landlord.

(3.) SECTION 13 (4) of the Act has been held to be mandatory by the Hon'ble Supreme Court in case of Nasiruddin and others vs. Sita Ram Agarwal (AIR 2003 Sc 1543) = (RLW 2003 (2) SC 315) wherein the Hon'ble Supreme Court reversing the judgment of Rajasthan High Court reported in 1997 (1) RLR 686 held that the word "shall" used in SECTION 13 (4) of the Act makes it mandatory provision and it is true that the Rajasthan Act does not expressly exclude the application of the Limitation Act, but section 5 in its terms is not applicable to wherever there is a default in depositing the rent by the tenant. Sub-section (4) of SECTION 13 itself provides for limitation of a specific period within the deposit has to be made, which cannot be exceeding three months as extended by the Court. Secondly, the deposit by the tenant within 15 days is not an application within the meaning of section 5 of Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of SECTION 5 can not be extended where the default takes place in complying with an order under sub- section (4) of the Act.