SULEMAN Vs. GORDHAN

JUDGEMENT

(1.) THIS is defendant's second appeal arising out of a suit filed by respondent against the appellant for eviction from a shop. The said suit was based on the ground of default in payment of rent as well as the appellant having damaged the premises. The Munsif, Sikar decreed the suit on the basis of the ground of default in payment of rent. He, how ever, did not accept the case of the plaintiff respondents that the rent for the premises was Rs. 15/ - per month, but found that the rent was Rs. 5/ -per month as claimed by the appellant. The Munsif did not no accept the case of the plaintiff -respondents with regard to damage to the premises. On appeal, the District Judge, Sikar affirmed the decree of the Munsif. The District Judge was of the view that the suit in question was governed by the provisions contained in Sub -sections (4)(5) and (6) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act (here in after referred to as 'the Act') as they stood prior to the amendments introduced by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Act, 1976 (Rajasthan Act No. 14 of 1976) and that under the unamended provisions it was incumbent upon the appellant to have moved an application before the trial court under Section 13(5) of the Act disputing the amount of rent payable by him and in the absence of his moving such an application and further on account of his failure to deposit the arrears of rent under Section 13(4) of the Act. the defence of the appellant was liable to be struck out under Section 13(6) of the Act. The District Judge, therefore, upheld the order for striking out the defence of appellant and affirmed the decree for eviction passed by the trial court. Hence, this second appeal.

(2.) I have heard Shri A.K. Bajpai, the learned Counsel for the appellant. The respondents have chosen not to appear and contest the appeal.

(3.) THE submission of the learned Counsel for the appellant is that the provisions of Sub -section (4) of Section 13 of the Act were not attracted to the present case and the provisions applicable were those contained in Sub -section (5) in view of the fact that the appellant had raised a dispute with regard to the amount of rent payable by the appellant. In support of his aforesaid contention the learned Counsel has submitted that the suit was filed on 28th March, 1974 and the first summons which were issued to the appellant requiring him, to file the written statement on 9th July, 1974 and that on 9th July, 1974 the appellant had file his written statement wherein he denied that the rent of premises is Rs. 15/ - per month as claimed in the plaint but asserted that the rent was Rs. 5/ - per month. The submission of the learned Counsel is that on the first date of hearing the appellant, while filing his written statement had raised the dispute with regard to the rent payable by the appellant and in view of the said dispute having been raised by the appellant, the provisions of subsection (5) of Section 13 of the Act were attracted and it was obligatory for the Court to decide the said dispute and that only after the same having been decided, the arrears of rent could be deposited within a period of 15 days of such order. In this regard the learned Counsel has invited my attention to the decision of the Court in Jag Mohan and Anr. v. Gani and Ors., 1986 (2) RLR 64.