Chhangani, J. - (1.)THIS is a plaintiffs second appeal against the appellate decree of the Civil Judge, Balotra dated 23th September, 1954, dismissing the plaintiff's suit for ejectment in respect of a shop situated in Balotra.
(2.)THE facts, which to a great extent are not in dispute, are as follows : - THE defendant Nihal Singh came to Balotra some time after 1947. He took on rent a shop belonging to the original plaintiff, Mst. Munni widow of Megraj now dead and represented by Ramniwas (a legatee under a will) at Rs. 16/12/- per month. When this shop was taken on lease, is not clear from the materials on record. It, however, appears that soon after, the defendant Nihal Singh took proceedings before the Sub-divisional Officer, Balotra for the determination of the fair rent under the Marwar House Rent Control Act No. XXV of 1949 (hereinafter referred to as the Marwar Act ). THE Sub-divisional Officer vide his order dated 6th July, 1950 fixed fair rent of the shop as Rs. 9/- per month. A fresh rent-note was thereupon executed by the defendant Nihal Singh in favour of Mst. Munni on 6th July, 1950, in which a specific condition was incorporated, reading as follows : - jkt js dkuwu jh 'krksz jks myy?kau jsav davªksy jh dj. k ij Fks [kkyh djk ldksyk] ojuk ugha
I have emphasized this condition, as the main controversy has centered round this fact. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950, (Act No. 17 of 1950) (hereinafter referred to as the Rajasthan Act) was promulgated in the year 1950 and it repealed the Marwar Act. This Act was, however, not extended to the town of Balotra. The original plaintiff, Mst. Munni consequently thought that she was entitled1 to eject the defendant under the general law and served a notice dated 16th July, 1951 upon the defendant determining the lease and requiring him to vacate the shop upto 31st July, 1951. The defendant having paid no heed, a suit was ultimately instituted in the court of the Munsif, Balotra on 3rd October, 1952. In the suit, the plaintiff prayed for a decree for ejectment and claimed arrears of rent amounting to Rs. 259/10/- at Rs. 16/12/- p. m. from 1st May, 1951 to 16th August, 1952 on an allegation that with the repeal of the Marwar Act so far as Balotra is concerned, she was entitled to Rs. 16/12/-p, m. on the basis of an agreement between the parties to pay rent originally fixed in case of the repeal of the Act.

The defendant resisted the plaintiff's suit. He definitely stated that the allegation of the plaintiff that Rent Control Act was no longer in force in Balotra is definitely wrong. He pleaded that in Rajasthan, the Rent Control Act is still in force. Merely because some provisions of the Act are not applicable in a particular place, cannot justify an assumption that the Act is not in force. He, therefore, disputed the right of the plaintiff to eject him. Further, he pleaded that the plaintiff was not entitled to claim rent at the rate of Rs. 16/12/- per month, as under an agreement embodied in the rent-note, the rent was fixed at Rs. 9/- per month and it was not open to the parties to go behind the agreement and to claim rent at the rate of Rs. 16/12/- p. m. He denied the oral agreement to pay rent at the original rate on the repeal of the Act. Incidentally, he also mentioned that he had been sending the rent to the plaintiff by money-orders, In one case, the money-order was accepted and in the other case, the money-order was refused. It also appears that during the course of the hearing, the defendant deposited an amount of Rs. 252/- on various dates.

The trial [court, after framing issues and recording evidence of the parties, passed a decree for ejectment on two grounds - (1) That, the defendant had been irregular in the payment of rent drawn from the manner of the deposits made by the defendants in Court: an inference mainly ; (2) That, the plaintiff had otherwise a right to eject the defendant under the general law on the repeal of the Marwar Act.

The Munsif passed no decree with regard to the arrears of rent and merely observed that the plaintiff would be at liberty to withdraw the amount deposited by the defendant in court. However, a decree for future rent at Rs. 9/- p. m. was passed with a direction that the decree could be executed only on paying the court-fees.

The defendant went in appeal which was heard by the Civil Judge, Balotra, who arrived at the following findings.

The finding of the Munsif that the defendant was a defaulter was not accepted by the Civil Judge. On the other hand, he found that the plaintiff having not based his suit on the default of the defendant, he cannot claim ejectment on that ground. The Civil Judge also overruled the contention that the defendant was merely a tenant-at-will.

Curiously, before the Civil Judge, the defendant raised a plea that the lease was void on account of uncertainty as no period was specified. This contention, of course, was over-ruled.

(3.)HOWEVER, discussing the effect of the condition in the lease already quoted in full, he purported to hold that the insertion of the condition in the lease-deed amounted to the incorporation of the provisions of the Marwar Act in force at the time of the execution of the rent note regarding the protection of tenants against eviction and the ground on which the tenant could be ejected, into the rent-note as the terms and conditions of the lease itself binding upon the parties irrespective of the continuance or the repeal of the law. In this view of the agreement, the repeal of law did not affect the rights of the parties and the tenant was not liable to be ejected except on the grounds mentioned in the Marwar Act.
He agreed with the findings of the Munsif with regard to the liability of the defendant for rent only at Rs. 9/- p. m. In this view of the matter, the Civil Judge accepted the appeal of the defendant and dismissed the plaintiff's suit for ejectment. The plaintiff has filed this second appeal, which is now being continued and prosecuted by her legal representative, Ramniwas.

I have heard Mr. Kishore Singh for the appellant and Mr. H. G. Thanvi for the respondent at a considerable length.

The main contention urged on behalf of the learned counsel for the appellant is that the condition in the lease was inserted only to ensure that the provisions of the law relating to control of eviction would be respected and followed and that there was no intention to incorporate the provisions of the Marwar Act as specific terms and conditions of the lease and consequently after the repeal of the Marwar Act and the Rajasthan Act having not been extended to Balotra, the plaintiff acquired the right to eject the defendant in accordance with the general law embodied in the Transfer of the Property Act. Mr. Thanvi has very strenuously opposed this contention of the appellant's counsel.

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