BHANWARLAL Vs. CHAMPALAL

JUDGEMENT

(1.) THIS is a defendant's revision against the order of the learned District Judge, Jodhpur, dated March 31, 1978 by which he confirmed the order of the Munsif, City, Jodhpur, dated March 2, 1977. The plaintiff landlord (non -petitioner) instituted a suit for arrears of rent and ejectment against the defendant -petitioner in the court of the Munsif City, Jodhpur, on August 30, 1972. Ejectment was sought on the ground of default and sub -letting. The case of the plaintiff as disclosed in the plaint is that the defendant had taken on lease shop No. 5 situate in his building located in Moti Chowk, Jodhpur and the rent payable by the defendant was Rs. 32/ - per mensem inclusive of electricity charges & house -tax, about which that is no dispute between the parties and the defendant has paid rent up to Chait Sudi 15. Samvat 2028. It has been further mentioned in para. 5 that a written notice was sent to the defendant on December 27, 1971 stating that his tenancy would stare terminated on Magh Sudi 15, Samvat 2028 which is the date on which the month of the tenancy expires and that rent from Chait Sudi 15 to Magh Sudi 15 amounting to Rs. 320/ - are due from him. In para. 7 of the plaint, it is mentioned that a sum of Rs. 225/ - on account of damages for use and occupation for the period from Falgun Badi 1 to Srawan Sudi 15, inclusive of Adhik Mas is due. Cause of action is stated to have arisen on Srawan Badi 1, Samvat 2035 when the defendant took the shop on rent and agreed to pay Rs. 32/ - per mensem as rent. The defendant contested the suit on various grounds. His defence, inter alia is that rent up to Baisakh Sudi 15 has a heady been paid. He also preferred a counter -claim for the payment of Rs. 6480 p. alleging that the plaintiff has realised from the defendant house -tax from Samvat 2025 to the current Samvat illegally.

(2.) ON October 27, 1972, an application under S. 13(5) of the Rajasthan Premiser (Central of Rent and Eviction) Act, 1950 (No. XVII of 1950) (which will hereinafter be referred to as 'the Act') as it existed then, was filed by the defendant. In that application, in para. 2, it was mentioned that the defendant had already paid rent upto Baisakh Sudi 15 and that the plaintiff has wrongly mentioned in para. 2 of the plaint that rent has only been paid upto Chan Sudi 15. He prayed that the arrears may be determined and time may be allowed for depositing the same. A reply was filed to this application on February 1, 1973 and the plaintiff reiterated in para. 2 of the reply that the defendant has paid rent up to Chait Sudi 15 only. As the defendant raised the dispute regarding to amount of rent payable by him the trial court held an enquiry. The trial court vide its order dated April 26, 1973 determined the amount of rent etc. upto Jeth Badi 1, Samvat 2030 and directed the defendant to deposit the rent so determined within fifteen days from the date of the order. A farther direction was made that the defendant should continue to deposit the rent month by month in accordance with S. 13(4)(old) of the Act. In that order dated April 26, 1973, the learned Munsif has clearly recorded a finding that the defendant has failed to prove that he has paid rent upto Baisakh Sudi 15. The defendant deposited the amount so determined within the time fixed by the court. He, however, failed to deposit the rent month by month as envisaged by S. 13(4)(old) of the Act. On February 16, 1974, an application (dated February 14, 1974 was moved by the plaintiff under S. 13(6)(old) of the Act stating that the defendant has neither deposited in court nor paid to the plaintiff arrears of rent by 15th of each succeeding month. It was prayed by the plain tiff that the defence against eviction be struck cut. The defendant submitted his reply on October 19, 1974 and started that the tenancy of the defendant commences from the first of the month according to British calendar about which there was on oral agreement between the parties & that the defendant has been depositing rent, month by month by the 15th of each succeeding month. Along with the reply he submitted a schedule mentioning details of the deposit of the rent made by him from month to month. Learned Munsif, by his order dated December 10, 1974, dismissed the plaintiff's application. It was not disputed before the Learned Munsif, as is apparent from the order dated December 10, 1974, that the defendant had deposited each month's rent after the order dated April 26, 1973 by the 15th of each succeeding month according to the British calendar and as such, he has not become a defaulter. The next question that came to be considered by the learned Munsif was whether the tenancy is according to the Hindu calendar month or the British calendar month. He examined this question and observed that the plaintiff has not specified the details of the delayed payment according to the Hindu calendar month.

(3.) BEING dissatisfied with this order, the defendant -petitioner has come up in revision.