MAHENDRA KUMAR Vs. SHRI NATHI LAL

JUDGEMENT

(1.) THIS Second appeal is by the tenant in a suit for evicition from residential permises stituated in Ajmer. The palintiff -respondent filed a suit for eviction on the ground of default in payment of rent for the period from 10th July, 1977 to 9th November, 1979. The month of tenancy was from 10th of each clender month. According to the plaintiff the rent for the permises was Rs. 70/ - per month. The appellant contested the suit and claimed that the rent for the permises was Rs. 51/ - per month and he further asserted theat the respondent had accepted the rent only upto the month of March, 1977 and therafter money order was sent ot the respondent which was refused. The Munsiff & Judicial Magistrate Ajmer Cith (West), Ajmer by order dated. The 27th May, determined the pervisional rent at Rs. 70/ - per month and directed the appellant ot pay a sum of Rs. 2580/ - was on account of arrears of rent and interest upto 9th May, 1980. The said amount was deposited by the appellant within the prescribed period. The rent for the period from 10th May, 1980 to 9th September, 1980 was deposited by the appellant on 9th October. 1980. On 1st November, 1980 the respondent moved an application before the trial court for striking out the defence for the reason that the appellant had failed to deposit the rent for the subsequent period within time prescribed under sub -section (4) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act' ). On the said application the Munsiff passed an order dated 30th May, 1981 whereby the defence of the appellant was struck out under sub -section (5) Section 13 of the Act. While the matter was pending before the trial court, the appellant sub mitted an affidavit dated 16th December, 1981 on 4th February, 1982 wherein he explained the circumstances in which default had been committed by him in depositing the rent for the period from 10th May, 1980 to 9th September, 1980. In the said affidavit the appellant stated that when he asked his counsel Shri Ramswaroop, for depositing the rent for the months of May to August, 1980, his counsel told him that it was not necessary to deposit the same at that stage and that the some could be deposited within six months and that this fact was also stated by the appellant during the course of deposition on 28th October, 1980, but after recording a part of the said deposition, the said portion was scored out by the Court on 4th February, 1982. When the said affidavit was filed by the appellant the case was fixed for arguments and the court fixed the matter for 5th February 1982 for consideration of the said affidavit and for argument in the case. The order - sheet indicates that on 5th February, 1982 the case was adjourned to 8th February, 1982 and the arguments were heard on 8th February, 1982 in the suit as well as on the affidavit. The suit was decided by the Munsiff by his judgment dated 9th February, 1982 whereby he accepted the case of the appellant that the rent for the premises was Rs. 15/ - per month. The Munsiff, however, held that since the defence of the appellant had been struck out on the question of default, issue no. 1 with regard to default should be decided in favour of the plaintiff respondent and in view of the said finding on issue No. 1 he passed a decree for eviction against the appellant. In the said judgment the Munsiff has made not any reference to the affidavit of the appellant dated 16th December, 1981. The appellant filed an appeal against the said judgment and decree of the Munsiff which was dismissed by the Addl. District Judge No. 2, Ajmer by his judgment and decree dated 4th January, 1988. The Addl. District Judge also has not made any reference to the affidavit dated 16th December, 1981 submitted by the appellant. Hence, this second appeal.

(2.) SHRI R. M. Lodha, the learned counsel for the appellant, has argued that the provisions contained in sub -section (5) of Section 13 of the Act with regard to striking out the defence are not mandatory in nature and that it is in the discretion of the court to strike out the defence or not to strike out the defence and that the said discretion has to be exercised after taking into consideration the facts and circumstances of each case and the explanation that is offered by the defendant for the default committed by him in payment of rent during pendency of the suit. In support of his aforesaid submission SHRI Lodha has placed reliance on the decision of the Full Bench of this Court in Vishandas Vs. Savitri Devi (1 ). SHRI Lodha has pointed out that in the present case the appellant had in his affidavit dated 16th December, 1981 offered the explanation for delayed payment of the rent for the period from 10th May, 1981 to 9th September, 1981 viz; that he was advised by his counsel, SHRI Ramswaroop, that the said payment could be made within six months and that in view of the said explanation the Munsiff was not justified in striking out the defence of the appellant. SHRI Lodha has also submitted that although the order -sheet shows that on 4th February, 1982 the Munsiff had directed that he will consider the affidavit at the time of final hearing and on 8th February, 1982 arguments were heard on the affidavit also but the judgment does not indicate that the Munsiff has considered the said affidavit. SHRI Lodha has also submitted that in appeal also the appellant had raised plea that his defence had wrongly been struck out, but the Addl. District Judge, while dealing with the_appeal, has not considered the explanation offered by the appellant in his affidavit dated 16th December, 1981. According to SHRI Lodha in view of the decision of the Full Bench of this Court in Vishandas Vs Savitri Devi (supra), the courts below have committed error in striking out the defence of the appellant.

(3.) IN Mrs. Manju Choudhary Vs. Dulal Kumar Chandra (supra), it was found that the rent for the month of July, 1979 which was to be deposited by 15th August, 1979 was deposited not earlier than 20th August, 1979 and the explanation which was offered by the tenant for this belated payment, namely, that there was a bank strike, was found to be not correct. IN those circumstances the Supreme Court upheld the orders of the High Court striking out the defence of the tenant and while doing so the Supreme Court also observed that the conduct of the tenant who had made default even in complying with the orders of the court. The said decision was given in the facts of that particular case where the explanation that was offered by the tenant, was not accepted by the Court. The said decision has, therefore, no application to the present case.