BABU RAM Vs. NARAYAN DASS

JUDGEMENT

(1.) THIS is a second appeal by the defendant against the judgment and decree of the learned Senior Civil Judge, Jodhpur dated the 21st December, 1957, reversing the decree of the Munsif, Jodhpur dated the 31st May, 1947.

(2.) THE facts giving rise to this appeal are that in the City of Jodhpur there is a house near Gulabsagar whose boundaries are given in the plaint. This house once belonged to Mangilal and Ballabhdas. THEy rented it out to the defendant-appellant on a rent of Rs. 3/- p. m. This rent was,later on,raised to Rs. 3/8. THE exact dates on which the house was leased out by Mangilal Ballabhdas or the date on which the rent was increased have not been clarified by either party. Mangilal and Ballabhdas brought a suit against the appellant for ejectment, but it was dismissed.

(3.) NOW coming to the last issue No. 6 it is urged by appellant's learned counsel that his client had tendered rent for the first two months to the respondent after he had purchased the house and it was accepted by him. Thereafter, he sent the rent of the next 3 months by moneyorder, but it was not accepted by the respondent. It is urged that the respondent having refused to accept the moneyorder, it was no longer necessary for the appellant to continue to send him the rent by moneyorder every month and hence he was not a defaulter. It is further pointed out that when the appellant received notice for vacating the premises and paying arrears of rent, he sent a reply to the respondent by his notice Ex. A5 that he was always ready and willing to pay the rent. Under these circumstances, it was not proper on the part of the appellate court to hold that the appellant has been a defaulter. Learned counsel for the respondent has urged in reply that it was the duty of the appellant to tender the tent every 6 months, if not earlier, and that since he had committed 3 defaults within a period of 18 months, he was liable to eviction. It is also contended that the respondent never refused to accept the moneyorder. I have considered these arguments and it may be observed that the appellant has produced a postal receipt of the moneyorder sent by his client which is marked as Ex. A2. This document shows that an amount of Rs. 10/8/- was remitted by the appellant to the respondent but the moneyorder was returned to the appellant since it was not accepted by the respondent. Sec. 13, sub-sec. (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, lays down that "for the purpose of clause (a) of sub-sec. (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has remitted such amount to the landlord by postal moneyorder at his ordinary address. " The appellant having produced Ex. A2, a presumption arises in his favour that he had tendered the amount of Rs. 10/8/- as rent and it was for the respondent to rebut that the said moneyorder did not reach him. There being no such evidence, it must be deemed that the money was tendered to the respondent. In the case of Gauri Shanker Agrawal vs. Ganga Prasad (2), it was observed that clause 13 of the Bihar House Rent Control Order (1942) protected a tenant who was in the arrears of rent from ejectment so long as he was willing to pay rent. It was further held that it was not the intention of the law that the tenant should be forced to make useless offer and send money to the landlord by moneyorder which would without doubt be refused. The provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, are similar to the provisions of the law referred in the above case. In the view which was taken in the case cited above it would be difficult to hold that the appellant was a defaulter. Moreover,even if it be assumed for the sake of argument that he was a defaulter, he could not be evicted since he deposited the entire amount which was determined by the court on the first day of hearing under sec. 13 (4) of the said Act. In the case of Daulatram vs. Bhomraj (3) it was observed that sub-sec. (4) of sec. 13 makes it clear that inspite of the defaults on the part of tenant the court would still protect him if he pays the arrears of rent, the interest thereon and the costs of the suit as determined by the court under sub-sec. (4) on or before the date fixed in the order. The first appellate court's decree regarding the ejectment of the appellant cannot therefore be allowed to stand on the basis of its decision on issue No. 6 but since issue No. 4 and 5 have been decided in favour of the respondent, that decree must stand.