MAHENDRA BHUSHAN, J. - (1.) AN important question of law involved in this revision petition is as to whether in a suit filed only for eviction under Sec. 13 (l) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') the Court is required to determine the rent and interest under Section 13 (3) of the Act ?
(2.) THE petitioner purchased the suit property from the previous owner Smt. Kastoori Bai wife of B. L. Sharma under a registered sale-deed dt. the 26th September, 1977. Prior to the purchase, in the suit property the non-petitioner was a tenant allegedly on a monthly rent of Rs. 100/ -. After the purchase of the property the petitioner filed a suit only on the ground of default under Section 13 (!) (a) of the Act that the non-petitioner has neither paid nor tendered the rent due for six months. THE learned trial Court by its order dated the 20th March 1979 determined the rent and interest amounting to Rs. 4914/- and directed the non-petitioner to pay to the land lord or deposit this amount in the Court within a period of one month. It also directed that the monthly rent to fall due shall also be paid by the non-petitioner to the petitioner by 15th of succeeding month. THE non petitioner filed an appeal before the learned District Judge, who accepted the same and set aside the order of the learned Munsiff passed under Sub-sec. (6) of Sec. 13 of the Act, and directed him to provisionally determine the rent under Sub-sec. (3) of Sec. 13 as per directions contained in his order. I am of the opinion that the approach of the learned District Judge that unless in a suit for eviction based on a ground as contained in Section 13 (1) (a) of the Act, the arrears of rent are also claimed upto the date of the suit, the amount of rent cannot be determined under Sec. 13 (3) of the Act for the period prior to the suit, is not in accordance with law. The learned District Judge has also observed by referring to O. 2 R. 2 C. P. C. that unless the arrears are claimed, the amount prior to the filing of the suit cannot be determined and he has drawn analogy from the proviso to Sub-sec. (2) of Sec. 13 with regard to time-barred rent. A look at Section 13 (3) of the Act will make it clear that in the suit for eviction on the ground set forth in clause (a) of sub-sec. (1) of Sec. 13 of the Act is filed, it is the duty of the Court to provisionally determine the amount of rent to be deposited in Court or to be paid to the land lord by the tenant. The determination of the amount is to be confined to the amount of rent which was not barred by limitation on the date of filing of the suit. It can hardly be disputed that a suit purely for eviction on the ground set forth in clause (a) of sub-sec. (1) of Section 13 of the Act is maintainable and it is not necessary in such a suit also to claim arrears of rent on which the alleged default is based. Under O. 2 R. 2 (2) C. P. C. where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he is debarred afterwards to sue in respect of the portion so omitted or relinquished. The only effeet of the plaintiff suing purely for eviction under Section 13 (l) (a) of the Act will be that he cannot later on file a suit for arrears of rent for which he omits to sue in such a suit. That apart the law can be said to be settled if at a particular stage Rent Act provides for determination of rent and its payment in a suit for eviction then even such rent the recovery of which has become time barred on the date of the suit, has to be determined in accordance with relevant provisions of law. In Ram Nandan Sharma vs. Mt. Maya Devi (1), a Full Bench of Patna High Court, dealing with section 11 A of Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947) has held that while determining the rent the provisions of O. 2 R. 2 C. P. C. are not attracted. In Khadi Gram Udhyog Trust vs. Shri Ram Chandraji Virajman Mandir, Sarasiya Ghat, Kanpur (2) their Lordships while dealing with the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 have held that the tenant can take advantage of the benefit conferred by Section 20 (4) only when he pays the entire amount of rent due as required under Section 20 (4 ). It was further held that there is ample authority for the proposition that though a debt is time barred, it will be a debt due though not recoverable, the relief being barred by limitation and the entire amount of rent due would include even rent which cannot be recovered as having been time-barred. I am, therefore, of the opinion that a suit purely on the ground set-forth in Section 13 (l) (a) of the Act for eviction is maintainable and it is not necessary also to sue for arrears of rent relating to which the default is alleged to be committed by the tenant. In such a suit it is the duty of the Court under Sub-section (3) of Sec. 13 of the Act to provisionally determine the amount of rent to be deposited in Court or to be paid to the land-lord by the tenant, and if the tenant fails (to deposit or pay the amount as aforesaid, the landlord will be entitled for an order of eviction. No doubt the plaintiff-tenant will get the arrears of rent without paying the requisite court fee, but it is for the legislature to see, the learned District Judge has acted in the exercise of its jurisdiction illegally or with material irregularity. Under the sale-deed a right has been conferred on the land lord to recover the arrears of rent, if any form the tenant. Therefore, while determining the amount of rent under Sub-sec. (3) of Sec. 13 of the Act, the Court has to determine the amount which was due as rent against the tenant to the pre-decessor-in~title of the petitioner provided the same is within legislation. The revision petition is allowed and the order of the learned District Judge is set aside. The learned trial Court is directed to provisionally determine the rent along with interest under Sub-section (3) of Sec. 13 of the Act. While determining the amount the learned Trial Court shall take into consideration the rent receipts signed by V. L. Sharma. The costs of this revision petition are made easy. . ;