MADAN LAL JAIN Vs. SATYA PRAKASH PRAJAPAT

JUDGEMENT

(1.) I have heard learned counsel for the petitioner and perused the order.

(2.) The petitioner-plaintiff filed a suit for eviction and recovery of rent against the non-petitioner Satya Prakash in the Court of Addl. Civil Judge (Jr. Div.) No. 5, Jodhpur. It is an admitted position that in that suit, the rent was determined in accordance with sub-section (3) of Sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act. The defendant deposited rent. The dispute is with regard to the rent for the months of March and April, 1994. The petitioner filed an application under sub-section (5) of Sec. 13 of the Act, complaining of the fact that despite the order of determination, the defendant did not deposit rent for the months of March and April, 1994. It was, therefore, prayed that the defence of the defendant-non-petitioner be struck out. The explanation of the non-petitioner-defendant was that he has been depositing rent through cheques. The plaintiff has got his S. B. A/c in the Central Bank of India, Jalori Gate, Jodhpur whereas the defendant has got his A/c in Uco Bank, Paota, Jodhpur. Regarding the rent for the month of April it has been satisfactorily moved that it was deposited in time. Regarding the rent for the month of March, the defendant issued a cheque No. 826251 for a sum of Rs. 690.00 in the name of Shri Madanlal and deposited the same in the Central Bank of India, Jalori Gate, Jodhpur. It was revealed later on that the above cheque was sent by the Central Bank of India for collection to Uco Bank, Paota, Jodhpur and the latter did not encash same on the ground the specimen signature on the cheque of the defendant did not tally with his specimen signature. However, no information was sent by the Bank to the defendant and only a debit entry of Rs. 10.00 was made by the Bank in the A/c of the defendant as cost of sending the cheque for collection. It was on account of the above entry, the defendant came to know about this fact. Thereafter, he deposited the rent on 15-6-94. The defendant, therefore, submitted that the delay was bona fide and must be condoned for the aforesaid reason. Both the courts below found the above reason to be convincing and trustworthy. They, therefore, condoned the delay and the application of the petitioner-plaintiff was dismissed.

(3.) I have heard learned counsel for the petitioner. He has very vehemently contended that the provisions contained in sub-section (5) of Sec. 13 of the Act postulate that as soon as the defendant commits default in payment of rent, he incur the liability of his defence being struck out by the Court. Therefore, a duty is cost on the Court to pass the above order. This view was taken in Ms. Manju Choudhary Vs. Dulal Kumar Chandra, AIR 1988 SC 602 . According to the learned counsel, in the instant case, the defendant has not even filed a separate application condoning delay. Hence, the learned Courts erred in considering the case of condoning delay in favour of the defendant. In this connection, he placed reliance on J. Narain Vs. Satyanarayan, 1995 DNJ (Raj) 373.