GUPTA, J. - (1.) BY this revision, the petitioners -defendants seek to assail the orders of the two learned courts below whereby the plaintiff's application u/s. 13 (5) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter to be referred as the Act) has been accepted and the petitioners' defence against the eviction has been struck off, while petitioner's application u/s. 13 (4) of the Act read with Sec. 5 of the Limitation Act has been dismissed.
(2.) THE brief facts of the case are that the plaintiff non-petitioner filed a suit for eviction against the petitioner inter-alia on the ground of default as contemplated by Sec. 13 (1) (a) of the Act. THE learned trial court made provisional determination of rent, that amount was deposited. However, thereafter, since 8. 10. 94 the defendant did not or could not deposit the monthly rent. However the rent for the period 1. 10. 94 to 30. 9. 95 was deposited by the petitioners on 3. 6. 95. It is at this time i. e. on 3. 6. 95 that the petitioner filed an application u/s. 13 (5) of the Act read with Section 5 of the Limitation Act, inter alia contending that a copy of the challan and tender dt. 7. 10. 94 was lost by the petitioner and thereafter he got busy in connection with his daughter's engagement, in which connection he had often to go outside Bhilwara. THE daughter was ultimately married on 8. 5. 95. THEreafter on 24. 5. 95 when he met his counsel he was told that monthly rent has not been deposited. On these premises the petitioner sought condonation of delay for the period upto 3. 6. 95. After filing of this application, on 29. 7. 95 the plaintiff non- petitioner filed an application u/s. 13 (5), refuting the averments of the petitioner, and contending that since the defendant has not deposited rent in time, and. there is no sufficient cause whereby he was prevented from depositing monthly rent in time, his defence against the eviction is required to be struck out. These two applications have been disposed of by the impugned order, whereby the petitioner's application u/s. 13 (4) of the Act read with Section 5 of the Limitation Act has been dismissed and accepting the plaintiff's application the petitioner's defence against the eviction has been struck out. The learned trial court recorded a positive finding on appreciation of the facts that the explanation given out by the petitioner is not satisfactory, inasmuch as in the application the petitioner has not disclosed as to when he did go outside the town in connection with his daughter's engagement. Likewise admittedly his daughter was married on 8. 5. 95 still he has deposited the rent on 12. 7. 95 only, while, as he was relieved of the responsibility of marriage on 8. 5. 95 itself, and therefore, if he wanted to deposit the rent, and was vigilant about deposit of rent, he could have deposited it immediately thereafter. Not only this, in any case when he had come to know of non-deposit of rent on 24. 5. 95 itself, still no satisfactory reason has been shown as to why did he deposit the rent on 12. 7. 95. On the basis of these facts it was concluded that the delay caused in depositing the rent cannot be accepted to be bonafide one. It was concluded that for good long period of 8 months the petitioner had been careless. Inter- alia with these findings the learned trial court also held that though the provisions of Section 13 (5) of the Act are not mandatory and are directory, still in view of the facts the petitioner is not entitled to exercise of discretion or sympathy in his favour. On appeal the learned lower Appellate Court endorsed these findings and found that even if the rent is assumed to have been deposited on 3. 6. 95, as against the finding of the learned trial court about the rent to have been deposited on 12. 7. 95, still it is not of much consequence, inasmuch as there is no explanation for the delay at least from 24. 5. 95. The learned lower Appellate Court further found that there is no reason as to why did he not make efforts to deposit the rent during the period while he was in Bhilwara, and thus it is clear that the petitioner has been negligent in depositing the rent which is synonym of wilful and contumacious default and thus the appeal was dismissed. In the first instance the learned counsel for the petitioner assailed the findings of the learned courts below on the question of delay, and contended that since the petitioner had lost the earlier tender, and then he got busy in connection with engagement of his daughter, and after she was married, he met the lawyer on the date of hearing being 24. 5. 95, and learnt about, rent having not been deposited, and soon thereafter he deposited the rent, and thus there was sufficient cause entitling him to have the delay condoned. It is contended that the provisions of condonation of delay in the matters u/s. 13 (4) and 13 (5) are required to be liberally construed. Then it was contended that admittedly it was the petitioner who first moved the application seeking to deposit the rent and seeking condonation of delay, as the application was filed by him on 3. 6. 95, and on that very day he had deposited the entire arrears of rent, and it was thereafter only that as late as on 29. 7. 95, that the plaintiff filed an application for striking out the defence, getting conscious of the default on the petitioner's filing application seeking condonation of delay, which is a weighty circumstance in favour of not exercising discretion to strike out the defence, and the order striking out the defence is required to be set aside. Likewise it was also contended that admittedly as on the date of the filing of the application for striking out defence no amount of rent was in arrears, and therefore, in view of the judgments cited by him, the defence was not required to be struck off. In support of his contentions learned counsel relied on Shyamcharan Sharma vs. Dharamdas (1), Miss Santosh Mehta vs. Om Prakash (2), Ram Murti vs. Bhola Nath (3), M/s. B. P. Khema Pvt. Ltd. vs. Birendra Kumar Bhowmick (4), Vishandas vs. Savitri Devi (5), Kamla Devi vs. Shri Vasdev (6), M/s. Sunmoon Stationers vs. Banshi Lal (7), Amar Singh vs. Doongar Singh (8), Smt. Rekha Bhandari vs. Deepak Surana (9) and Collector, Land Acquisition vs. Mst. Katiji Learned counsel for the non-petitioner on the other hand supported the impugned order and contended that the two learned courts below have closely examined the cause given out by the petitioner for condonation of delay, and in right and legitimate considerations have been found that cause to be not tantamounting to sufficient cause which does not require any interference by this Court as the finding does not suffer from any jurisdictional error. The learned counsel contended that in this view of the matter the learned courts below have rightly struck out the defence of the petitioner against eviction. The learned counsel placed reliance on the judgments in Dr. Gopal Dass Verma vs. Dr. S. K. Bhardwaj (11), Jai Narain vs. Satya Narain (12) and Basti Chand vs. Pukhraj
(3.) I have heard learned counsel for the parties, and have gone through the various judgments cited on either side so also the relevant provisions of law. Before starting with the discussion it would be gainful to reproduce the relevant parts of the provisions of Section 13 (3), 13 (4), 13 (5), 13 (6) and 13 (7) of the Act: " (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 ground 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 issues, 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 upto the end of the months 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 upto 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 upto 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 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 benefits 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 a. 05. at that time, pass such orders regarding costs or interest, as having regard to the circumstances of the case, it deems fit. " I may recapitulate that these provisions of sub-sections (3), (4), (5) and (6) are out come of amendments introduced by the Rajasthan Ordinance No. 26 of 1975, later on replaced by the Rajasthan Amending Act No. 14 of 1976. Prior to the amendment, it was the tenant's duty on the first date of hearing to himself calculate the arrears of rent and interest etc. thereon and to deposit it, while in case of there being any dispute, such dispute was required to be raised on the first date of hearing itself, in which event the arrears of rent was required to be determined by the court under the then Section 13 (5) and then thereafter the tenant was required to deposit and to continue to deposit or pay the monthly rent month by month. By the aforesaid amendment vide ordinance of 26 of 1975 those two erstwhile sub- sections were substituted, and uniform provision was made in Section 13 (3) reproduced above, wherein, irrespective of the fact as to whether there is any dispute or not as to the amount of arrears of rent, a duty is caste on the court to make provisional determination of rent together with interest. Such determination is required to be made on the first date of hearing, or on any other date as the court may fix in this behalf, not later than three months after filing of the written statement, and is to be before framing of the issues. After such determination having been made, by virtue of Section 13 (4) the tenant is to deposit the amount and continue to deposit the rent month by month by the fifteenth of each succeeding month, or within such further time not exceeding fifteen days, as may be extended by the court. Then sub-section (5) requires the defence against the eviction to be struck out in the event of failure on the part of the tenant to deposit or pay the amount or amounts referred to in sub-section (4) The word used in sub-section (5) by the legislature is "shall", and therefore, this provision was consistently construed by this Court to be mandatory, in the sense that in the event of defendant failing to pay or deposit the amount or amounts referred to in sub-section (4) the Court had no option but to straightaway struck out the defence. ;