PUKHRAJ Vs. MAHESHWARI SAMAJ

JUDGEMENT

(1.) BY his order dated 31.10.1995, the learned Additional District Judge No. 2, Jodhpur dismissed the appeal filed by the defendant-petitioner upholding the order dated 20.2.1995 passed by the learned trial court, by which the defence against eviction of the defendant-petitioner was struck off under section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (for short the 'Act' herein).

(2.) THE facts of the case lie in a very short compass. The plaintiff-non-petitioner filed a suit for ejectment and arrears of rent against the defendant-petitioner entirely on the ground of defaults committed by the defendant-petitioner in payment of rent for more than six months. The trial court vide its order dated 4.11.1981 determined the rent under section 13(3) of the Act. It appears that the petitioner did not deposit the rent within the time allowed by the court to deposit the above determined rent and instead the petitioner preferred an appeal against the order dated 4.11.1981 passed by the learned trial court and that appeal came to be dismissed vide order dated 24.8.1992. It further appears that the plaintiff-non-petitioner moved an application on 27.3.1993 under section 13(5) of the Act for striking out (sic) the defence of the defendant-tenant was that since he had preferred an appeal against the order dated 4.11.1981, he did not deposit the rent. However, he deposited the dues before the plaintiff-non-petitioner moved an application under section 13(5) of the Act and as there was no rent due from the defendant-petitioner on the date of application under section 13(5) of the Act was made, the learned trial court erred in passing the positive order in favour of the plaintiff-non-petitioner under section 13(5) of the Act. Similarly, the learned appellate court also erroneously upheld the above order.

(3.) THE learned counsel appearing for the petitioner has placed strong reliance on a decision of this Court in Sunmoon Stationers v. Banshilal (1) and particularly the observations contained in para 58 of the above judgment.