VISHAN DAS Vs. SAVITRI DEVI

JUDGEMENT

(1.) THIS revision petition is directed against the judgment dated 19th February, 1987, passed by the learned Additional District Judge, No. 3, Jaipur City, Jaipur, in Civil Misc. Appeal No. 55 of 1986.

(2.) IT is an admitted case of the parties that after the determination of the provisional rent, the amount was deposited by the present petitioner defendant on the first date of hearing and during the continuation of the proccedings. The case of the petitioner is that he was depositing the amount in advance. He further submits that 6 months advance was given to the Advocate for depositing in the court but the Advocate did not deposit the amount in the court resulting in default of one month payment in time. The Rajasthan Premises (Control of Rent and Eviction Act, 1950, is a beneficial legislation needs interpretation for the benefit of those for whose benefit, the law has been enacted. It is an admitted position that the past conduct of the tenant shows that he was not in paying the monthly rent. The Hon'ble Guj. High Court has taken the view that owing to the lapses on the part of the Advocate, it cannot be said that such tenant was un -willing and was not ready to pay the rent and thus was liable to be evicted. Hon'ble Supreme Court had an opportunity to consider the case of Miss Santosh v. Om Prakash 1980(II) RCR 516, in which Hon'ble Supreme Court has held that the defence of the tenant should not be struck -out unless there is a deliberate and wilful default. Hon'ble Supreme Court further held that the power to strike -out the defence is discretionary and not mandatory. In the same case also the mistake was committed by the Advocate. Hon'ble Supreme Court was pleased to hold that the defence of the tenant should not be struck -off. This Court had also the opportunity to discuss about the applicability of the provisions of Section 5 of the Limitation Act. In the (case of Gopal Dass and Ors. v. Nathulal Baraya . In this case the Division Bench of this Court held that the provisions of Limitation Act, will apply and the delay if any can be condoned. My brother Hon'ble Justice G.M. Lodha, in the case of Desraj v. Om Prakash and Anr. 1987 (1) RLR 244 held as under:

(3.) IN the facts and circumstances of the case, I consider it just and proper that the view of the Larger Bench, should be obtained to avoid inconsistency. The following issues are referred for the consideration to the Larger Bench: