M. C. JAIN, J. - (1.) THIS is a revision petition by the defendant tenants against the order of the additional District Judge No. 1 Jodhpur, dated 5-7-1979, where by the defendants' appeal against the order of the Additional Munsif and Judicial Magistrate, First Class No. 1, Jodhpur, dated 20-1-1979 was dismissed and the order of the Add!. Munsif, striking out the defence of the defendants against eviction, was maintained.
(2.) THE facts leading to the present revision petition may, briefly, be stated as under: The plaintiff Vali Mohammed originally instituted the suit for arrears of rent and ejectment from the disputed house against four defendants Bheroomai Vasudev, Ghanshyamdas sons of Natharmal and Jasodabai widow of Nathar Mal on 9-8-1971. The eviction was sought on the ground of reasonable and bonafide need and default in payment of rent any the unsafe condition of the house. On 1-10-1971 the defendants submitted and application under sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Act" ). It was stated in this application that 1-10-1971 is the first date of hearing. The defendants are prepared to deposit rent and interest for which two months' time may be allowed to them, as it is difficult for them to deposit the entire amount at once. However, it appears that no order was passed on this application. The defendants filed their written statement on 17-11-71. Originally seven issues were framed on 9-2-1972. Further on 24-7-1976, three more additional issues were framed. On 3. 3. 1972 the plaintiff submitted an application under Section 13 (6) of the Act for striking out the defence of the defendants against eviction on the ground that the defendants have not deposited the amount of rent and interest even after the expiry of two months under section 13 (4) of the Act. On this application, as well, no order appears to have been passed. It was an admitted case of the parties that the original tenant in the demised premises was Natharmal. After the death of Natharmal, the tenancy devolved on his heirs. The defendants sought an amendment in their written statement and a plea was raised that there are other heirs of the deceased Natharmal, who are also the tenants in the disputed premises and they are necessary parties to the suit. It was alleged that Natharmal had predeceased son Udhavdas. Udhavdas widow Mohinibai, his son Santosh Kumar and daughter Ishwaribai are also the tenants in the property. The amended written statement was filed on 24-7-1976 and the same day an additional issue No. 9 was framed to the effect that the suit is not maintainable, as the other heirs of the deceased Natharmal have not been made a party to the suit. It appears that the plaintiff then sought an amendment in the plaint and added three other heirs of the deceased Natharmal as parties to the suit. The amended plaint was submitted on 16-11-1976. Summonses were sent to the three added defendants. Despite service of summons Mohinibai widow of Udhavdas did not appear on 24-1-1977. Santosh Kumar and Ishwaribai, the children of Mohinibai were minors, so Shri Kishanlal, Advocate, was appointed as guardian ad litem and 17-2-1976 was fixed, on which date the guardian ad litem was present. Copy of the plaint was furnished to the guardian ad litem on 4-4-1977 and 19-4-1977 was fixed for written statement to be filed by the guardian ad litem on behalf of the minor defendants, but the written statement was actually filed on 21-4-1977 and thereafter the case was posted for framing of additional issues. The case continued to be adjourned for the same. On 1-8-1977 arguments for framing of the issues were heard and the plaintiffs counsel prayed for determination of rent, but the defendants' counsel submitted that he is not prepared to argue on that point. The case continued to be adjourned and the arguments were heard on 4-4-1979 and ultimately on 4-5-1978 additional issue regarding default was framed and the court provisionally determined the amount of rent from 6-1-1971 to 6-4-1978. 87 months rent @ Rs. 18/- per month to the tune of Rs. 1,566/- and interest thereon @ six percent per annum amounting to Rs. 336. 69p. total Rs. l,902. 69p. The defendants were directed to make payment of the aforesaid amount within fifteen days and continue to pay monthly rent after 6-4-1978 by the fifteenth day of the next succeeding months. The option was given to the defendant to deposit the amount of rent in court. On 17-5-1978 the defendants presented an application for allowing two month's time for depositing the amount of rent. Thereupon the defendants were allowed time to deposit the amount of rent in accordance with the order dated 4-5-1978, upto 15-7-1978. On 25-10-1978 the plaintiff presented an application under section 13 (5) of the Act stating that the defendants deposited amount of Rs. 1,902/- on 13. 7. 1978, but the defendants did not deposit or pay the amount of rent for the month from 6-4-1978 to 5-5-1978 upto 20-5-1978 and for the month from 6-5-1978 to 5-6-78 upto 20-6-1978 and the defendant deposited the rent of these two months on 13-7-1978. Thus, the defendants have not deposited the amount of rent in accordance with law, as well as order of the court, so their defence against eviction be struck out. A reply to this application was submitted by the defendants. The lenrned Additional Munsif, after hearing the arguments allowed the plaintiff's application and struck out the defence against eviction The learned Additional Munsif proceeded to state that the rent was determined under sec. 13 (3) of the Act, as amended by the amending Act. No. 14 of 1976 and time upto 15-7-78 was given for depositing the amount of rent determined by the court, and time upto 15-7-1978 was not allowed for depositing the rent for each succeeding month after 6-4-1978. The defendants have, thus, defaulted in the payment of rent under sec. 13 (4) of the Act, so their defence was struck out under section 13 (5 ). The defendants went in appeal, but were unsuccessful. Hence this revision petition. I have heard Shri Rewachand, learned counsel for the defendant-petitioners, and Shri R. R. Nagori, learned counsel for the plaintiff-non-petitioner. Shri Rewachand, learned counsel for the petitioners, submitted that the suit was not based on the ground of default, so section 13 (4) as it stood prior to the Rajasthan Ordinance No. 26 of 1975, and section 13 (3), as it stands after the aforesaid Ordinance and replacement of the aforesaid Ordinance by Rajasthan Amending Act No. 14 of 1976, are not attracted, and, as such, order striking out the defence, deserves to be set aside. He pointed out that if the suit would have been based on the ground of default, an issue on default would have been struck and the plaintiff would have pressed the same, but no issue was struck prior to 4-5-1978. This contention of the learned counsel is simply stated to be rejected. A perusal of para 7 of the plaint will make it abundantly clear that the suit for eviction is grounded on default in payment of rent. The plaintiff has averred that rent from 6-1-1971 to 2-8-1971, six months twenty six days, amounting to Rs. 130-50p is due. The defendants have commi-tted default in payment of rent in law, so on this ground they are liable to be evicted. The contention is beyond comprehension and it is understandable as six month's rent was due even prior to the determination of the tenancy. The tenancy was determined with effect from 31-7-1971 with an option clause. Determination of tenancy will not in any way affect the accrual of rent every month. Even after determination of the tenancy, the tenant continues to be a tenant until actually evicted from the premises. Thus, the first contention is over ruled. It is next contended that the suit was instituted in the year 1971 The defendants had moved an application under section 13 (4) of the Act on the first date of hearing on which no order was passed and it should be deemed that the rent was determined under section 13 (4) (Old ). The defendants have complied with the order of the court inasmuch as they have deposited the determined rent, together with rent, which became due upto the date of depositing on 13 7-1978. Thus, within the extended time up to 15-7-1978, there has been no default in depositing the amount of rent. He urged that the section 13 (4) (Old), would apply to the present case and under section 13 (4) (Old) the two month's time could be extended by the Court for depositing the amount of rent, which has become due upto the date of deposit beyond the time already fixed. He submitted that on 4-5-1978, fifteen days' time was allowed to the defendants for depositing the determined rent, which comes to 19th May, 1978, and the court could allow time upto 19-7-1978 for depositing the amount of rent determined and the rent which became further due after 6-4-1978 up to the date of deposit.
(3.) I have given my careful consideration to the contention of Shri Rewa Chand, but I am unable to agree with the same. It may be stated that under sub-sec. (4) of section 13, as it stood prior to the Rajasthan Ordinance No 26 of 1975, the tenant was under an obligation to deposit the amount of rent on the first date of hearing or such date, which the court may fix on an application made to it in this behalf Maximum time, which can be extended by the Court was only two months. The interpretation, which Shri Rewachand has tried to put on Section 13 (4) (Old), is in no way borne out and the question is no more res integra. In Rampal vs. The Manager, Sasta Sahitya Press Ltd. (1) it is held as under: - "under subsec. (4) of sec. 13, the tenant must deposit all arrears of rent with interest thereon on the first day of hearing or he must make an application to the court on the first day of hearing for fixing time to deposit arresrs of rent. The Court is not bound to fix time on such application. But in case it exercises its discretion in favour of the tenant and fixes time within which the tenant is allowed to deposit the arrears of rent, the time so fixed or subsequently extended by thae Court must not exceed two months from the first day of hearing. If the tenant deposits the arrears of rent as specified in sub-section (4) of Section 13 within the time so fixed by the Court, his defence against eviction is not to be struck out, but if he fails to do so, his defence has to be struck out under section 13 (6 ). There is therefore no substance in the contention that an application to the Court for fixing time to deposit arrears of rent can be made even after the first day of hearing and if the Court fixes a date on such application even after the expiry of two months from the first day of hearing, such an order will be in conformity with the provisions of sub-sec. (4) of Sec. 13 of the Act" Admittedly in the present case no time was fixed by the Court on the defendants applicatian under sec. 13 (4) (Old ). When no time was fixed by the court for the application under sec. 13 (4) (Old ). The defendants were required to deposit the amount of rent on the first day of hearing. Further, so far as the determination of the rent on 4-5-1978 is concerned, it cannot be disputed that it was determined under section 13 (3) of the Act, as it presently stands, after the Rajasthan Amending Act No. 14 of 1976. Though, there is no reference in the order dated 4-5-1978 as to under what provision the rent has been determined, but from the tenor of the order as well as on account of the fact that on 4-5-1978. the determination could be made only under section 13 (3 ). It cannot be said that the rent was not determined under section 13 (3 ). It is true that the suit was pending since 1971, but the defendants No 5 to 7 were added in November 1976 and after filing of the written statement by the guardian ad litem and before framing of the Additional issue on 4-5-1978, the rent was provisionally determined. Where defendants are subsequently added and written statement is filed by them and additional issues are framed or even if it is found that no additional issue is required to be struck, still provision of section 13 (3) will be attracted and the provisional determination of rent under section 13 (3) would even ensure to the benefit of the other defendants, who have submitted their written statement earlier to the introduction of the provision of section 13 (3) and in whose case even issues have been struck earlier to that. Thus, it is clear that in the present case the rent has been determined under section 13 (3) of the Act ;