J GANPATLAL Vs. KULDEEP SINGH

JUDGEMENT

(1.) THIS appeal is directed against the judgment of the learned Additional District Judge No. 1 Udaipur dated 2-7-1987whereby the learned trial court has held that the defendant-non-petitioner has not committed any second default entitiling the plaintiffs to a decree of ejectment against the defendant and, therefore, the plaintiff's suit has been dismissed with costs. The contention of the defendant-non-petitioner to award special costs has also been dismissed.

(2.) THE facts necessary to be noticed for the disposal of this appeal briefly stated are: that the plaintiffs let out their shop, the particulars of which are mentioned in para 1 of the plaint, to the defendant for a sum of Rs. 800/-but it appears that some portion of it was released from his tenancy and, therefore, on 13-5-1987 on the basis of the mutual agreement between the parties, the rent of the suit-shop was fixed at the rate of Rs. 600/- per month with effect from 1-6-1977. However, the defendant did not pay the rent of the suit-shop for about 7 months from 1-7-1981 to 31-7-1981 and, therefore, the plaintiffs-appellants filed a suit against the defendant-non-petitioner on 6-8-1981 on the ground that the! defendant has committed default in payment of rent and, therefore a decree for eviction may be passed against him. That suit was decided on 27-5-1982 holding that this is the first default committed by the defendant and therefore, a decree for eviction cannot be passed against him. THE defendant has further failed to pay the rent for a period of about 6 months from 1-5-1982 and as such, he has become second defaulter in payment of rent; THE plaintiffs have claimed that their cause of action arose on 1-11-1982. THEy have further claimed that rent for a period of about 7 months is due from the defendant on the date of the suit which happens to be 20-12-1982.

(3.) MR. R. L. Maheshwari, the learned counsel appearing for the respondents has contended that second default also has to be a default in payment of rent, for a continuous period of six months. In this case, the suit was filed on 20. 12. 1982 and till then, rent from May 1982 to November 1982 became due. The rent from May to October, 1982 was paid on 29. 10. 1982 and thus, there is no default in payment of rent for a continuous period of six months. In this respect, reliance was placed on a decision of this Court in Khajoolal Vs. Amar Chand 1 wherein a learned single Judge of this Court observed as under: "to my mind, the default after the rent is due, should continue for six months. The section would normally be applicable to a case where rent is required to be paid month by month but in a case where the yearly rent is reserved or required to be paid in terms of the contract, the rent must not have been paid for six months after it had fallen due and then alone this clause would be attracted. " That was a case of yearly rent. The yearly rent was fixed, at Rs. 20/ -. In that case, actually two shops were let out to the defendant, one of which let out on the yearly rent and the other one was let out on monthly rent. As regards the shop which was let out to the defendant on monthly rent basis, the learned Judge has held that the defendant was clearly a defaulter for a period exceeding six months. As regards the shop, about which rent was payable yearly, the learned Judge observed that the nub of the matter, therefore, is whether in such a situation, can it be held within the meaning of s. 13 (1) (a) of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 that the tenant has neither paid nor tendered the amount of rent due to him for six months. After quoting the provisions of s. 13 (1) of the Act, the learned Judge observed that the language of the section is not appropriate in the case of the present kind. The section contemplates fulfilment of two things: viz,, (i) that the amount of rent must have fallen due and that would naturally be in terms of the contract and (ii) that it should not have been paid or tendered for six months. To my mind, the default after the rent is due, should continue for six months. The section would normally be applicable to a case where rent is required to be paid month by month but in a case where the yearly rent is reserved or required to be paid in terms. of the contract, the rent must not have been paid for six months after it had fallen due and then alone this clause would be attracted. Thus, this is a decision about a case in which yearly rent has been reserved or required to be paid in terms of the contract and so, it has no application to the facts of the present case.