BHANWAR LAL Vs. CHANDRA KANTA
HIGH COURT OF RAJASTHAN
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(1.)THIS is a revision application by the defendant against an appellate order of the Additional District Judge No. 1, holding that the provision of sec. 13 (4) is applicable to the present suit so far as the eviction on the ground of default is concerned and the provision of sec. 13 A is not applicable because it was open to the defendant to get benefit under sec. 13 (4 ). The trial court held that sec. 13 A was applicable.
(2.)THE suit for recovery of arrears of rent and eviction was filed on 8-3-65. Summons on the defendant-applicant was served on 26-3-65 and the first date of hearing was 16-7-65. On 9-6-65 the Rajasthan Premises (Control of Rent & Eviction) Amendment Act 12 of 1965 came into force in which two provisions were incorporated relating to a suit for eviction based on the ground of default. One was contained in s. 13 (4) and the other was contained in s. 13 A. THE provision in sec. 13 (4) was general and was to apply to all suits. THE provision under sec. 13 A was a special provision relating to pending suits. Under s. 13 (4) the tenant has to deposit the arrears of rent due upto the date of deposit and to deposit future rent month by month till the disposal of the suit. If there is a default in this then the defence against eviction is struck off. Sec. 13 A is a special provision relation to pending suits. Under this provision the defendant has to apply to the court within 30 days of the coming into force of the Amendment Act i. e. by 8-7-65. THE defendant has to make an application for the determination of arrears of rent due up to date and he is required to deposit these arrears. He is not required to deposit rent from month to month.
In the present case the defendant filed an application on 8-7-65 for the determination of the arrears of rent. Both sec. 13 A and 13  were mentioned in the application. The trial court determined the arrears of rent on 24-11-65 and gave time upto 3-1-66 to the defendant for depositing them. This amount was duly deposited. On 10-11-66 the plaintiffs filed an application that as the defendant had failed to deposit rent month by month for future months as required under sec. 13  his defence should be struck off.
Sec. 13 A is a special provision relating to pending suits. As was held by their Lordships of the Supreme Court in J. K. Cotton Spinning & Weaving Co Ltd. vs. State of Uttar Pradesh (1) where there is a conflict between a special provision and the general provision the special provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision.
On behalf of the respondents it was argued that part of the provision of sec. 13 (4) relating to the deposit of future rent month by month as contained in sec. 13 (4) is not inconsistent with the provision contained in sec. 13 A and therefore the provision under sec. 13 (4) should also be given effect to. I am unable to accept this argument. The relevant part of sec. 13 A runs as follows: "13 A. Special provisions relating to pending and other matters.- Notwithstanding anything in sec. 13, sub-sec. (1)[a], or sub-sec.  and the proviso thereto or sub-sec.  as they existed before the commencement of the amending Act -  no court shall, in any proceeding pending on the date of commencement of the amending Act, pass any decree in favour of landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under clause [b] and pays to the landlord, or deposits in court, within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause.  in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commencement of the amending Act. notwithstanding any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six percent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court; and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if the tenant had not committed any default. "
The effect of making payment under sec. 13a [b] is given under sec. 13-A [a]. If payment under sec. 13-A [b] is made then sec. 13-A [a] provides that no court shall pass any decree for eviction on the ground of non-payment of rent. If payment under sec. 13-A[b] is made the tenant cannot be evicted on the ground of default. Sec. 13-A [a] is not subject to sec, 13. It cannot therefore be said that sec. 13 A is not inconsistent with the provision contained in sec. 13. The provisions under sec. 13 cannot be applied to a case governed by sec. 13-A.
I accordingly allow the revision application, set aside the order of the appellate court and restore the order of the trial court. In the circumstances of the case, I leave the parties to bear their own costs throughout. .
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