GANESH DAROGA Vs. BEENA KUMARI

JUDGEMENT

(1.) THE aforesaid appeal arises out of order, dated 2.2.1996, passed by Additional District Judge No. 6, Jaipur City, Jaipur in civil suit No. 125/1995; whereby the application moved by plaintiff-respondent No. 1, under Section 13(5) of the Rajasthan premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act") was allowed and the defence against eviction of the defendant-appellant was struck out.

(2.) THE facts giving rise to the filing of this appeal, briefly stated, are that the plaintiff-respondent filed a suit for eviction against the defendant-appellant in respect of residential premises let out to him on the grounds inter alia: (a) default in payment of rent, (b) sub-letting, and (c) denial of title. It was alleged in the plaint that monthly rent was Rs. 30/- and the provisional rent was determined w.e.f. 13.4.1987. During the pendency of the proceedings in view of the default in payment of rent committed by the defendant, the plaintiff filed an application under Section 13(5) of the Act of 1950 contending therein that the defendant had neither paid nor deposited the monthly rent and also the provisional rent determined by the Court. Since the defendant did not even file the reply to the aforesaid application notwithstanding the directions of the trial Court in this regard within time, defendant filed an application for condonation of delay on 14.11.1994 contending therein that the delay in payment of rent was bona fide and that the same be condoned. It was further contended by the defendant that the rent for the following period was deposited in the bank account of the plaintiff :- Vernacular matter ommitted. It is apparent from the above statement furnished by the appellant in the memo of appeal that notwithstanding the fact that the rent had to be deposited or paid by the defendant in accordance with the direction of the Court in view of the fixation of provisional rent under Section 13(5) of the Act by 15th of each succeeding month, the appellant had deliberately with some ulterior motives not deposited the rent within time and thereby violated the directions of the trial Court and this fact is apparent from the above statement that he purposely accumulated the rent for 2 to 3 months simultaneously and thus flouted the orders passed by the trial Court. The trial Court after hearing the learned counsel for the parties passed the impugned order on 2.2.1996 aggrieved by which this appeal has been preferred to this Court.

(3.) DURING the course of hearing Shri B.L. Agrawal, learned counsel for the appellant, contended at the bar that the delay was not wilful but was bona fide and had occurred due to the circumstances beyond control of the appellant. No plausible cause for condonation of delay was stated by the learned counsel for the appellant, in absence of which it becomes quite clear that the delay was wilful and deliberate and it does not deserve to be condoned by this Court. This fact is borne out from the statement regarding the deposits of monthly rent as stated in ground D of the memo of appeal from which it is clearly apparent that the rent for August, 1987, was deposited on 17th September, 1987, for September, October and November, 1987 was deposited on 26th November, 1987, for March, April, May and June, 1988 was deposited on 25th April, 1988 and for the months of August, September and October, 1988 was deposited on 30th September, 1988. On the question of delay in depositing the rent of the above months, learned counsel for the appellant stated at the bar that the delay had occurred on account of the illness of the appellant for which he had furnished the medical sickness and fitness certificate of the Doctor concerned and in the interest of justice the delay ought to have been condoned. In this regard, learned counsel for the appellant was asked specific question by this Court during the course of hearing as to what was the reason for the appellant in not appointing an attorney who could act on his behalf for depositing monthly rent in time, this Court was told that he could not appoint any such attorney nor he could request anybody else on his behalf for depositing the rent in time. This obviously shows the attitude of the appellant who had deliberately committed delay in depositing the rent in time. Even taking the fact regarding illness of the appellant to be true, I find no plausible justification in condoning the delay by the trial Court in not depositing the rent within stipulated time for the period in dispute. This fact is fortified from the judgment of the trial Court wherein it has been specifically observed that Ganesh Daroga (appellant) and Gajanand Daroga (respondent No. 2) are real brothers who were defendants in the suit and if one of them was ill, then there was no reason for the second defendant in not having taken prompt steps in depositing the rent in time with a view to escape consequence of default against payment of rent as the same would not have not resulted in striking of the defence of the defendant under Section 13(5) of the Act, if necessary, and immediate steps were taken in this regard. Hence submission of the medical certificate is not a cogent ground for condonation of delay in depositing monthly rent in time or the provisional rent as determined by the Court under Section 13(3) of the Act, since the provisions of the Act are mandatory and not directory in nature. Section 13(3) of the Act reads as under :-