KALYAN MAL Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) THIS Second appeal by the defendant, Kalyanmal arises out of a suit for ejectment filed by Smt. Shakuntala Devi respondent. It relates to residential premises situated at Sikar. The plaintiff sought eviction of the appellant on two grounds, namely, default in payment of rent and reasonable and bona fide personal necessity. The ground of reasonable bona fide personal necessity has been negatived by both the courts below and the suit has been decreed on the ground of default in payment of rent.

(2.) ACCORDING to the case set up in the plaint, the defendant had committ-ed default in payment of rent for the period from 1st November, 1975 to 30th May, 1976 The suit was filed on 24th June, 1978. In accordance with the provisions of sub-section (3) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act') the trial court, namely, Munsiff & Judicial Magistrate, First Class, Sikar, by his order dated 25th January, 1979 determined the provisional amount of rent payable by the defendant-appellant upto 31st January, 1979. By the said order the defendant-appellant was directed to deposit Rs. 420/- towards rent and 42. 50 towards interest. The defendant deposited the aforesaid amount in accordance with the order dated 25th January, 1979 within the period prescribed by law. The rent for the month of February, 1979 was, however, deposited by the defendant on 9th April, 1979 vide challan dated 7th April, 1979. The plaintiff submitted an application dated 26th November, 1980 wherein it was submitted that the defendant had committed default in payment of rent for the month of February, 1979 and it was sub-mitted that the defendant may be treated as defaulter and suit may be suitably decreed. The defendant submitted a reply dated 19th December, 1982 to the said application. No orders were, however, passed on the application dated 26th November, 1980 submitted by the plaintiff and the Munsiff finally disposed of the suit by his judgment and decree dated 17th March, 1981 whereby he decreed the suit on the view that the defendant had committed default in payment of rent. The defendant filed an appeal against the said decree wherein he submitted that he is employed in the Telephone Department and he was posted at Palsana Annoli in the month of February, 1979 and on account of the said posting he was not able to meet his lawyer and for that reason the rent for the month of February could not be deposited in time. The said appeal of the appellant was decided by the Civil Judge, Sikar by his judgment and decree dated 15th April, 1983 whereby the decree of the Munsiff was affirmed As regards the plea of the appellant about condonation of delay in depositing the rent for the month of February, 1979, the Civil Judge held that the provisions contained in sub-section (4) of Section 13 of the Act are mandatory in nature and in case the tenant fails to deposit the future rent within 15 days from the date the rent was payable the court has no option but to pass a decree for ejectment in view of sub-section (5) of Section 13 of the Act. Feeling aggrieved by the aforesaid judgment and decree passed by the Civil Judge, the defendant has filed this appeal.

(3.) THE appeal is, therefore, allowed, the judgment and decree dated 15th April, 1983 passed by the Civil Judge, Sikar in Civil Regular Appeal No. 49/81 (21/81) passed by the Addl; Munsiff & Judicial Magistrate First Class, Sikar in Civil Suit No. 127 of 1979 are set aside and the suit is remanded to the Addl. Munsiff First Class, Sikar for decision in accordance with the directions contain-ed in this judgment. Both the parties are directed to appear before the Addl. Munsiff Sikar on 12th December, 1988. THE original record may be returned. No order as to costs. .