BASTI CHAND Vs. PUKHRAJ

JUDGEMENT

(1.) THE defendant-petitioner has moved this petition under Section 115, C.P.C. feeling aggrieved by the order dated 4.12.1995 passed by the learned Addl. Civil Judge (Jr. Div.) cum Judicial Magistrate No. 5, Jodhpur, in Civil Original Suit No. 401/1993 as also the order dated 29.1.1996 passed by the Addl. District Judge No. 1, Jodhpur, in Civil Appeal Order No. 1, Jodhpur, in Civil Appeal Order No. 2/96, whereby the application filed by plaintiff non-petitioner under Sec. 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, hereinafter called 'the Act', was allowed and the defence of the petitioner as against eviction was ordered to be struck out.

(2.) THE plaintiff non-petitioner filed a suit for eviction against the defendant-petitioner on the ground of non-user and default in payment of rent. The learned trial Court determined the provisional rent in terms of Section 13(3) of the Act on 21.5.94. On 2.8.1995, the non-petitioner moved an application under S. 13(5) of the Act making a complaint that the petitioner has not deposited the rent as determined by the Court under sub-sec. (3) of S. 13 of the Act in accordance with the provisions contained in sub-sec. (4) of S. 13 of the Act and thereby incurred a liability of his defence as against eviction being struck out. The defendant-petitioner filed reply and contested the application of the non-petitioner. The plaintiff non-petitioner in the application did not mention what amount was deposited by the defendant- petitioner on 14.7.1994 but a sum of Rs. 150/- was deposited by the defendant -petitioner on that day. The defendant-petitioner further deposited a sum of Rs. 900/- on 7.4.1995. During arguments on the above application, the defendant-petitioner moved an application, purporting to be under Sec. 5 of the Limitation Act in which it was stated that the court determined the provisional rent on 21.5.94 in which it was mentioned that the defendant had deposited the rent upto April 1994. Since the defendant deposited a sum of Rs. 300/- on 3.6.94, he thought that he had deposited advance rent. The defendant further stated that he had deposited the rent upto October, 1995 and the delay, whatever was committed, was on account of a bona fide mistake. The plaintiff non-petitioner stoutly resisted the above defence by stating that in order to save his claim, the defendant-petitioner has thought of a false story, which can never inspire confidence. The defendant-petitioner is a senior advocate and he cannot be believed to say that he could not properly understand the implication of the order and he remained under the impression that when he deposited a sum of Rs. three thousand, the same was in advance. The learned trial Court after hearing both the parties, held that the explanation offered by the defendant-petitioner seeking condonation of delay in depositing the rent was not tenable. It was absolutely not possible for the court to believe that a senior advocate would default in understanding the correct implication of the order by which the provisional rent was determined between the parties. The learned trial Court stated that it determined Rs. 11,625/- as due from the defendant-petitioner to the plaintiff-non-petitioner. As a sum of Rs. 11,400/- was adjusted, which was deposited by the petitioner and a balance of Rs. 225/- was found due from the petitioner to the non- petitioner. Interest amounting to Rs. 225/- was also calculated on the amount due and finally a sum of Rs. 227.25 was found due from the defendant- petitioner and the Court ordered the petitioner to deposit the same within a period of fifteen days. The petitioner was further under an obligation as per the provisions contained in sub-section (4) of Section 13 of the Act to deposit the rent month by month by the fifteenth day of each succeeding month. The learned trial Court stated that if the amount of Rs. 300/-, deposited by the petitioner, is taken into consideration, it can be said that the defendant-petitioner deposited the rent for the months May to June, 1994, and he cannot be said to have committed a default upto 14.7.1994 but from 19.8.1994 onwards, defaults have occurred continuously. The learned trial Court, therefore, allowed the application of the non-petitioner and struck out the defence of the petitioner as against eviction under sub-section (5) of Section 13 of the Act. The petitioner felt aggrieved and filed an appeal before the learned Appellate Court and the learned Appellate Court fully agreed with the view of the learned trial Court and dismissed the appeal.

(3.) LEARNED Counsel for the petitioner has submitted that the default in payment of rent has been committed bona fide and not with an ulterior motive. It was obligatory for the plaintiff to have proved that the defendant was guilty of committing wilful and contumacious default before the order under sub-section (5) of Section 13 could be passed and that the amount was not exorbitant and it presented absolutely no difficulty before the defendant to deposit the same in the Court. The defendant was under an impression that rent upto April 1994 has been deposited by him in advance. He acted accordingly, when he made payment subsequently. Learned counsel for the petitioner has placed reliance on a decision of this Court in M/s Summon Stationers v.Banshi Lal, 1993(1) WLN 231.