HUKAM SINGH Vs. SHANKAR

JUDGEMENT

(1.) THIS is an application in revision under sec. 115, C. P. C. by the plaintiffs against the order of the Additional District Judge, No. 2, Jodhpur, dated September 10, 1973, by which, he reversed the order of the Additional Munsif, No. 1, Jodhpur, dated January 22, 1973.

(2.) A suit was instituted by Ramlal, Hukamsingh and Prithvisingh against Shankar for arrears of rent and ejectment in the court of Munsif City, Jodhpur, on October 24, 1s68. Ramlal and Hukamsingh have died and their legal representatives were brought on record. It was averred that certain apartments mentioned in para 2 of the plaint forming a portion of building situated at Station Road, Jodhpur, described in para 1 of the plaint were taken on rent by the defendant. The rate of rent as stated was Rs. 65/-p. m. exclusive of Rs. 40/-p. m. as charges for electricity and water. In para 5 of the plaint, it is alleged that the plaintiffs filed a suit for ejectment in respect of premises in dispute against the defendant-non-petitioner, on November 12, 1964. One of the grounds for ejectment in that suit was that the defendant had committe default in payment of rent. One of issues was whether the defendant wad defaulter. In that suit, while deciding issue No. 1, the Additional Munsiff held that the defendant was defaulter in payment of rent. However, during the pendency of the suit, the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) was amended by Act No. XII of 1965, which came into force w. e. f. June 9, 1965. Thereupon, the defendant, submitted an application under sec. 13a and Sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) (which will for the sake of brevity be referred hereinafter as 'the Act') as amended by Act No. XII of 1965, stating that as he has already deposited the entire rent on the first day of hearing, he should be given benefit of the aforesaid provisions of the Act. The Additional Munsif, No. 1, Jodhpur, gave benefit under sec. 13 (4) of the Act and dismissed the suit.

(3.) IN view of the submissions made by the learned counsel for the parties, the first question that crops up for consideration is whether the revision against the impugned order is maintainable. Sec. 22 of the Act deals with Appeal and Revision. It also provides for forums for revision or appeal. Proviso to sec. 22 (2) lays down that nothing contained in sec. 22 (1) shall affect the powers of the High Court for Rajasthan in revision. The conditions for exercising the power of revision are those, which are provided in sec. 115, C. P. C. If, one of the conditions laid down in sec. 115, C. P. C. is satisfied, the High Court has been empowered to interfere in revision against the appellate order passed under sec. 22 (1) of the Act. It is under clause (c) of sec. 115, C. P. C. that the High Court can interfere with the order of the Subordinate Court, in which no appeal lies, thereto if the sub ordinate court exercises its jurisdiction illegally or with material irregularity. It is well settled by the various decisions of their Lordships of the Supreme Court, that the words "illegally" and "with material irregularity" as used in Clause (c) of Sec. 115, C. P. C. do not over the errors of fact or of law. IN Harakchand's case (l), this court has laid down that illegality or material irregularity must have occurred in the manner, in which the jurisdiction of the Subordinate court is exercised i. e. in the manner on which the case is heard or decided. Under clause (c) of sec. 115, C. P. C. before interfering with an order, it will have to be examined whether it has been passed in breach of the provisions of law or there have been such material defects of procedure which had affected the decision of the case. The next point that calls for determination is whether the suit was based on the ground of default in payment of rent as envisaged by sec. 13 (l) (a) of the Act. Sec. 13 (1) (a) is as under: - "sec. 13 Eviction of tenants - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months, or Default in payment of six months' rent is a ground for eviction. If the tenant does not pay or tender the amount of tent due from him for six months', he renders himself liable to eviction. The words used in clause (a) of Sec. 13 (1) of the Act, are "neither paid nor tendered. " It is thus clear that if the tenant has not made payment of rent for six months' or when it fell due or if he has not tendered rent for six months, he would be liable to be evicted. The plaintiffs have averred in para 10 of the plaint that the rent from 1-11-1967 to 23-9-1968 and damages for use and occupation from 24-9-1968 to 30-9-1968 at the rate of Rs. 65/- per month i. e. Rs. 715/- are due from the tenant. Thus, as per averments made in para 10 of the plaint, rent for more than six months' has been stated to be due from the tenant. The tenant had submitted an application under sec. 19a, on August 21, 1968 and deposited Rs. 765/- in the court and after giving credit of this amount, Rs. 170/-remained outstanding. The plaintiffs have mentioned that they would withdraw the amount without prejudice to their right. The words used in para 10 of the plaint are