BULAKI DASS Vs. RAM SWAROOP

JUDGEMENT

(1.) THIS second appeal has been preferred by the tenant - defendant Bulaki Dass against the concurrent judgments of two Courts below giving eviction decree against him and in favour of the plaintiff Ram Swaroop on the ground of second default being committed in payment of rent by the tenant.

(2.) THE Courts below found that earlier suit filed by the plaintiff land -lord, namely, suit No. 55/1977 was decided on 22.7.1978 giving benefit of first default to the tenant under the provisions of Sections 13(6) of the Rajasthan Rent Control Act, 1950. On other issues, the plaintiff filed an appeal being appeal No. 52/1978 against the said judgment of the learned trial Court which also came to be dismissed by the first appellate Court on 11.7.1980 and the present second suit was filed by the plaintiff, namely, Suit No. 58/1981 on 4.2.1981 on the ground that the tenant had committed second default in payment of rent for the month of June, 1980 to January, 1981 viz. for seven months. The said suit was decreed by the learned trial Court on 17.12.1986 and the first appeal filed by the defendant - tenant also came to be dismissed, namely appeal No. 3/1987 by the court of learned Additional Dist. Judge No. 2, Jodhpur on 23.10.1992. Being aggrieved by the said judgment and decree of both the courts below, the defendant has approached this Court by way of present second appeal which was admitted by this Court on 1.11.1992 on the following substantial question of law framed by this Court on 1.12.1992: (i) Whether the sending of the money orders for the rent in relation to the months of September, October, November and December, 1980 and refusal of ' the same by the landlord amounts to valid tender by the tenant under Section 13(1)(a) and, therefore, the tenant cannot be held to be defaulter on account of non -payment of rent for these months and therefore, no decree for eviction can be passed against the appellant?

(3.) THE learned Counsel for the appellant has relied upon the decision of Hon'ble Supreme Court in the case of P.M. Punnose v. K.M. Munneruddin reported in : AIR2003SC2993 in which the Hon'ble Supreme Court has observed as under: 16. There appears to be a bona fide dispute as to the quantum of arrears, that is, as to what was the exact amount of rent paid by tenant - appellant to the landlord -respondents and consequent upon which payment the liability for now many number of months came to be extinguished. The facts found indicate the tenant - appellant remitting the amount of rent by money orders before and after and even during the pendency of the proceedings and some of the money orders having been refused by the landlord -respondents. The present one is a fit case where the Controller should have exercised his power under proviso to Sub -section (2) of Section 10 of the Act by passing an order thereunder and giving the tenant - appellant a reasonable time, not exceeding 15 days, to pay or tender the rent due by him to the landlord upto the date of such payment of rent. If such order was complied with by the appellant -tenant, then the application for eviction should have been rejected. The learned Controller has erred in not passing that order.