- (1.) The petitioner is Aggrieved by the order dated 20.04.2010, passed by the Civil Judge (Junior Division), Bijaynagar, District Ajmer, whereby the learned civil Judge had dismissed the petitioner's application filed under Section 13(3)(4) of Rajasthan Premises (Control of Rent and Eviction), Act 1950 ('the Act', for short) read with Section 5 of the Limitation Act for extension of time, and had allowed the application filed by the plaintiff-non-petitioners under Section 13 Sub-section 5 of the Act and had struck off the defence of the petitioner. The petitioner is also aggrieved by the order dated 12.07.2010, passed by the Additional District and Session Judge, Beawar, whereby the learned Judge has dismissed the appeal filed by the petitioner and has confirmed the order dated 20.04.2010.
(2.) The brief facts of the case are that the non-petitioner No.3, Mool Chand, had filed a civil suit for eviction against the petitioner under the Act on three grounds : firstly, the petitioner had defaulted in paying the rent; secondly, he was not using the shop for the last six months; thirdly, he had sublet the shop to another person. Mool Chand had also pleaded that there was arrears of rent of Rs.1899/- outstanding against the petitioner. During the pendency of the suit with the death of Mool Chand, Shiv Kumar was substituted as his legal representative. The petitioner filed his written statement and denied the averments made in the plaint. During the pendency of the suit on 28.04.2000 under the provisions of Section 13(3) of the Act, the learned trial court determined the provisional rent and directed that the said rent be paid within the statutory period. On 20.10.2000, the non-petitioners moved an application under Section 13(5) of the Act claiming that since the petitioner has failed to deposit the provisional rent within the statutory period, therefore, his defence should be struck off. Surprisingly, although the non-petitioners had moved their application on 20.10.2000, the petitioner did not file his application for extension of time and for condonation of delay till 19.03.2010. It is in his application dated 19.03.2010 filed under Section 13(3)(4) of the Act read with Section 5 of the Limitation Act that the petitioner admitted that he had deposited the rent for the month of April, 2000 not on 15.05.000 but on 19.05.000. Thus, he admitted that there is a delay of four days. Moreover, he admitted that the arrears of rent were deposited on 14.06.2000. Therefore, this delay should be condoned. However, after hearing both the parties vide order dated 20.04.2010 the learned Civil Judge dismissed the application filed by the petitioner, but accepted the application filed by the non-petitioners and struck off the defence of the petitioner. Since the petitioner was aggrieved by the said order, he filed an appeal before the learned Judge. However, vide order dated 12.07.2010, the learned Judge dismissed the appeal and confirmed the order dated 20.04.2010. Hence, this petition before this Court. Mr. Jai Prakash Gupta, the learned counsel for the petitioner, has vehemently contended that in the order dated 20.04.2010, the learned Civil Judge had not specified the period within which the amount determined under Section 13(3) of the Act had to be deposited. Secondly, Between 10.05.2000 and 18.05.2000, the petitioner had fallen ill to the extent that he could not move. Therefore, he had deposited the rent for April, 2000 on 19.05.2000. Hence, there is a delay of only four days in depositing the said amount. Thirdly, relying on the cases of Lalchand Vs. Santram,1978 WLN 133 and Raj Kumar & Anr. Vs. Lal Chand & Anr.,1987 2 WLN 962, the learned counsel has contended that an application for extension of time and for condonation can be filed at any time. Thus, the petitioner was justified in filing the application for condonation after the period for depositing the amount was over. Therefore, the reasoning of the learned Judge that the petitioner should have filed his application for extension of time within fifteen day given to him for depositing the amount determined under Section 13(3) of the Act is misplaced. Fourthly, in case the petitioner fails to deposit the amount within fifteen days, he could deposit the said amount within a period of three months thereafter. The petitioner had deposited the amount within the period of three months. Therefore, the delay in depositing the amount for April, 2000 should have been condoned by the learned Civil Judge. Fifthly, considering the fact that under Section 13(4) of the Act, the Court has the power to extend the time, the Court should have exercised the said power. Sixthly, considering the fact that the petitioner had deposited not only the rent of April, 2000, but had also deposited the advance rent till March, 2001, his intention to pay the rent is crystal clear. Therefore, considering his bona fide intention, the learned Judge should have condoned the delay. Lastly, according to the learned counsel, both the learned courts below have erred in holding that the application for extension of time should have been filed before the expiry of fifteen days which is the statutory period for depositing amount determined under Section 13(3) of the Act.
(3.) Heard the learned counsel for the petitioner and perused the impugned orders. Section 13 of the Act is as under : 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; (b) that the tenant had willfully caused or permitted to be caused substantial damage to the premises; or (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court, has materially altered the premises or is likely to diminish the value thereof; or (d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or (e) that the tenant has assigned, sub-let or otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord; or (f) that the tenant has renounced his character as such or denied the title of the landlord and the later has not waived his right or condoned the conduct of the tenant; or (g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or (h) that the premises are required reasonably and bona fide by the landlord :- (i) for the use or occupation of himself or his family; or (ii) for the use or occupation of any person for whose benefit the premises are held; or (iii)for a public purpose; or (iv) for philanthropic use; or (i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or (j) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; (k) that the landlord requires the premises in order to carry out any building work :- (i) at the instance of the State Government in pursuance of an improvement scheme or development scheme; or (ii) because the premises have become unsafe or unfit for human habitation; or (iii) upon the requisition of a local authority; or (l) that the landlord has been required by any authority under any law to abate the overcrowding of the premises. (2) The Court may presume that premises let for use as a residence were or are sub let by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period of exceeding one month otherwise than in commensurability with the tenant. (3) In a suit for eviction on the ground set forth in clause (a) of sub-Section (1); with or without any of the other grounds referred to in that sub-section, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issue, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable up to the date of determination; Provided that while determining the amount under this sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit. (4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month, the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the court at the monthly rate at which the rent was determined by the court under Sub-Section (3). (5) If a tenant fails to deposit or pay any amount referred to in sub-section (4), on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. (6) If a tenant makes deposit or payment as required by sub-section (4), no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court against him; provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefit under section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months. (7) If in any suit referred to in sub-section (3) there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit. (8) In case at the time of decision of the suit - (a) the court finds that the amount of rent provisionally determined by it under sub-section (3) and deposited in court or paid to the landlord under sub-section (4) is less than the amount of rent finally decided as payable by the tenant, the court shall pass a decree for the balance amount against the tenant; (b) the court finds that the amount determined and deposited or paid as aforesaid is in excess of the amount of rent finally decided as payable by the tenant, the court shall, in the event of passing a decree for eviction against the tenant on ground other than that set forth in clause (a) of sub-section (1), also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction, it shall direct in the decree, that such excess amount will be adjusted by the landlord against future rent payable by the tenant. (9) where any decree or order for the eviction of an tenant is made on the ground specified in sub-section (1), the landlord shall not be entitled to obtain possession thereof before the expiration of two months from the date of the decree or order.;