BHANWAR LAL Vs. AVTAR SINGH

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for ejectment based on the ground of second default. The suit was filed on 22.10.1973 and it was alleged that rent from 2.5.1972 up to the date of the suit had fallen into arrears and thus the tenant had committed a default. It was also alleged that earlier also, the tenant had made defaults in payment of rent and, therefore, a suit on the ground of default had been filed in the Court of Munsif, Bhilwara, being suit No. 260/71. However, the tenant had deposited the arrears of rent, interest and costs of the suit on the first date of hearing and, therefore, that suit was dismissed on 15.10.1971 in pursuance of Section 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act as it then stood. In the present suit, some other grounds for ejectment were also pleaded but we are not concerned with them at present. After framing the necessary issues and taking the evidence of the parties, the learned Munsif, Bhilwara, decided issue No. 1 regarding personal bonafide necessity against the plaintiffs. On issue No. 2 regarding default, he came to the conclusion that although the defendant had committed more than three defaults after having already taken the advantage of Section 13(4) of the Act on previous occasions, the amended Section 13A of the Act had come to his rescue pending this suit and as the tenant had moved an application under Section 13A within the prescribed time, he proceeded to determine the arrears of rent, interest thereon and the costs of the suit and came to the conclusion that a sum of Rs. 357/- was due against the tenant from 2.5.1972 to 31.7.1976 he was also liable to pay interest on that amount amounting to Rs. 46.76 and he also awarded costs of the suit, the amount of which, of course, has not been mentioned in the judgment but according to the decree framed in pursuance of this judgment, it comes to Rs. 62.50. The Court directed that the amount determined by it was to be deposited by the tenant within two months i.e. 60 days from the date of the judgment and as the tenant was entitled to the benefit of Section 13A, the suit for ejectment was dismissed. Aggrieved of this judgment and decree of the learned Munsif, Bhilwara, dated 21.8.1976, the plaintiffs went up in appeal. The contention raised before the learned first appellate Court was that the tenant had not deposited the full amount of arrears of rent, interest and costs determined by the trial Court within the time prescribed by it and, therefore, he was not entitled to the benefit of Section 13A and as he had been found to have committed defaults for the second time, he was liable to be ejected. The tenant-respondent before the first appellate Court, on the other hand, contended that the trial Court had committed a mistake in calculating the amount of interest on the arrears of rent and instead of a sum of Rs. 46.76 only a sum of Rs. 2.52 was payable by him as interest on the arrears as he had already deposited the rent from time to time under Section 19A of the Act and if the interest was to be taken to be Rs. 2.52 only then all the arrears of rent, interest and costs stood deposited within the time specified by the trial Court. The learned first appellate Court did not agree with the submissions of either of the parties in this connection but made out an altogether new case for the tenant inasmuch as although he was of the view that if the tenant thought that the interest had wrongly been calculated by the trial Court and a decree for a greater amount was passed against him, he should have challenged that part of the decree by filing an appeal of cross-objection and as he failed to do so, he cannot make a grouse about the wrong calculation of interest in this appeal, but he further found that as a matter of fact, the trial Court had only determined the arrears of rent and interest but had not determined the costs while disposing of the application under Section 13A and had not directed the tenant to pay the amount of the costs also within the period of 60 days. Therefore, the tenant was not bound to deposit the amount of costs of the suit within that time and on his failure to do so, it cannot be said that he is not entitled to the benefit of Section 13A of the Act and on that ground, he dismissed the plaintiff's appeal by his judgment dated 31.1.1979. Aggrieved of this, plaintiffs have come up in second appeal.

(2.) THE following substantial question of law was framed at the time of the admission of this appeal :-

(3.) I have given my careful consideration to the rival contentions. Now there is no dispute that the defendant had committed defaults in payment of rent more than thrice as has been found by the trial Court and which finding does not appear to have been challenged before the first appellate Court. It has been further found and is not disputed that the earlier suit filed by the plaintiffs on the ground of default was dismissed on account of the benefit given to the tenant under Section 13(4) of the Act as it then stood. Therefore, the only question, which now remains to be considered is whether the tenant should or should not have been given the benefit of Section 13A. The trial Court gave him benefit of Section 13A with a direction amounting to Rs. 46.76 within 60 days of the date of the judgment. While determining these amounts and disposing of the suit, he further observed that the defendant was also liable to pay the costs of the suit. Of course, that amount has not been mentioned in the judgment nor it has been directed that the amount of cost is also to be paid within 60 days along with the arrears of rent and interest and it is probably on this account that the first appellate Court had come to the conclusion that the tenant was not bound to deposit this amount of costs within 90 days. It is also not in dispute that in the decree framed in pursuance of this judgment, the costs have been calculated as Rs. 62.50 and this fact also stands admitted by the tenant in the application he had filed in the first appellate Court on 19.7.1973. Now that being so, it is to be determined whether Section 13A had been complied with by the tenant-defendant or not. The relevant part of Section 13A reads as under :-