BHIKAM CHAND Vs. JUGAL KISHORE

JUDGEMENT

(1.) THIS is a revisional application filed by the defendant-tenant against the appellate order of the learned Additional Judge No. 1, Jodhpur dated January 13, 1978 by which he set aside the order of the learned Munsif City, Jodhpur dated January 29, 1977.

(2.) BRIEFLY put the facts leading to this revision are these: the plaintiffs-non petitioners (landlords) instituted a suit for arrears of rent and ejectment against the defendant-petitioner in the court of Munsif City, Jodhpur on March 18, 1976. In the suit the plaintiffs claimed rent from March 1, 1975 to January 31, 1976 @ Rs. 80/- per month and damages for use and occupation from February 1, 1976 to March 18, 1976 amounting to Rs. 290 out of which they relinquished Rs. 130/ -. It was specifically mentioned in para 7 of the plaint that the previous Civil Original Suit No. 119 of 1972 which was decided by the learned Additional Civil Judge,jodhpur on March 18,1972, was for the recovery of arrears of rent at the rate of Rs. 80/- per month from November 1, 1969 to October 31, 1970 to May 18, 1971 and ejectment. It was also stated in para 7 that suit for ejectment was based on the ground of default in payment under Section 13 (l) (a) of the Rajasthan Premises Control of Rent and Eviction Act, 1950 (No. XVII of 1950) (for short 'the Act' ). In that suit, the defendant is alleged to have taken benefit to Section 13 (7) (old) of the Act but as defendant has committed default in payment to rent, as mentioned above, it was prayed that the plaintiffs are entitled to evict the defendant from the premises in question and the defendant is not entitled to any protection or benefit. On July 29, 1976, the trial court directed the defendant under Section 13 (4) of the Act to deposit in court or pay to the plaintiffs by August 12, 1976 the amount of arrears of rent, costs of suit and interest and further ordered that the file be put up for the decision of the suit on August 12, 1976. A perusal of the proceedings of the trial Court, dated August 12, 1976 shows that the amount was deposited vide tender No. 727 dated August 5, 1976. On that day, the counsel for the plaintiffs intimated the trial Court that this was a case of second default. The trial Court ordered that the defendant should file the written statement on October 12, 1976. On November 13, 1976, an application was moved by the defendant under Section 13 (6) of the Act stating therein that he has deposited the entire amount in pursuance of the order of the Court dated July 29, 1976 and that the defendant has not taken the additional benefit of sec. 13a of the Rajasthan Premises Control of Rent and Eviction (Amendment Ordinance), 1975 (Rajasthan Ordinance No. XXVI of 1975) or after that of Section 13a of the Act. He, therefore, prayed that the suit of the plaintiffs may be dismissed. This application was resisted by the plaintiffs by filing a reply dated September 13, 1976 on the ground that the defendant had already taken benefit under Section 13 (7), as it stood then, and, therefore, since the suit out of which this revision has arisen," was based on second default under Section 13 (l) (a), the defendant is not entitled to the benefit of Section 13 (6) of the Act. Along with the reply, the plaintiffs submitted the certified copies of the plaint (filed in Civil Original Suit No, 119 of 1972), decree-sheet dated March 18,1972, order dt. February 24, 1972 and application dated March 10, 1972. After hearing the arguments, learned Munsif, by his order dated January 29, 1977, dismissed the plaintiffs' suit for eviction.

(3.) THERE are some mistakes in the language of the decree