RAMESH CHANDRA Vs. MANMOHAN SINGH

JUDGEMENT

(1.) This is defendant-tenant's revision petition against the trial court's order striking out the defence under sub-sec. (5) of S.13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the appellate order affirming the same. Admittedly on March 25, 1985 the provisional rent was determined at Rs. 5215/- under sub-sec. (3) of S.11 of the Act. The monthly rent is Rs. 215/-. On April 8, 1985 the sum of Rs. 2850 was paid to the plaintiff landlord which included the sum of Rs. 2635/- as the balance left after adjusting Rs. 2580/- which had earlier been deposited under S.19- A of the Act, and Rs. 215/- being the rent for the month of March, 1985. On October, 4, 1985 an application was made by the plaintiff- landlord for striking out the defence under S.13(5) on the ground of non-payment of the rent for the month of July, 1985. Payment of rent for the period subsequent to March, 1985 except for the month of July, 1985 is admitted. The defendant inadvertently in the receipt dt. Oct. 31, 1985 issued by him he has mentioned the payment of rent for four months, namely, March, April, May and June instead of April to July, 1985. It was claimed that since rent for the month of March 1985, had already been paid on April 8, 1985, there was no occasion to pay rent for the month of March, 1985 once again as appears from the receipt dt. Oct. 31, 1985. This contention of the defendant was rejected by both the courts below. On the ground of default in payment of rent for the month of July, 1985 defendant-tenant's defence has been struck out under S.13(5) of the Act. Hence this revision.

(2.) In my opinion, it is not necessary to examine the correctness of the finding on the question of payment of rent for the month of July, 1985 in view of the alternative submission made by learned counsel for the petitioner that even if the same is treated as unpaid, striking out defence under S.13(5) is only discretionary and not mandatory. He argued that in view of admitted payment of the entire remaining amount the proper exercise of discretion would be to decline striking out the defence under S.13(5) of the Act. I am inclined to accept this alternative argument of the learned counsel for the petitioner.

(3.) A Full Bench of this Court in Vishandas v. Savitri Devi, (1988) 1 Rajasthan LR 1 has held placing reliance on several decisions of the Supreme Court that S.13(5) of the Act is directory and not mandatory, and that S.5 of the Limitation Act can be applied to the deposit of rent under S.13(4) of the Act. It has also been held that in suitable cases the court has the power to extend the time for depositing the rent beyond the period prescribed under S.13(4) of the Act. In taking this view the Full Bench has relied on the Supreme Court decisions in Shyamcharan Sharma v. Dharamdas, AIR 1980 SC 587, Miss Santosh Mehta v. Om Prakash, AIR 1980 SC 1664, Ram Murti v. Bholanath, AIR 1984 SC 1392, Ganesh Prasad Shah Kesari v. Laxmi Narayan Gupta, AIR 1985 SC 964 and B.P. Khemka Pvt. Ltd. v. Birendra Kumar, AIR 1987 SC 1010. In this last decision, B.P. Khemka's case, it has been held after referring to the earlier decision on the point relating to similar enactment in different States that : -