Mohammad Rafiq, J. - (1.) This regular first appeal has been filed against the judgement and decree passed by the Additional District and Sessions Judge, Jaipur City, Jaipur dated 26.3.1992 in a suit for eviction filed by the plaintiff-respondent. The suit was filed on the ground of default. It was pleaded that the defendant has committed default in making payment of rent for more than six months starting from 1.1.1981, before the filing of the suit. The trial court on 8.5.1978 passed the order of provisional determination of rent u/s.13(3) of the Act. The arrears of rent to the tune of Rs. 96,500,19/- was ordered to be deposited, which amount was deposited by the defendant. However, for the subsequent period, it has been held by the trial court on issue no.3 that the plaintiff-defendant further committed default in making payment of rent for the month of October, 1990. The decree of eviction was passed with direction to the defendant to pay to the plaintiff-respondent a sum of Rs. 12,502.82 towards electricity and water charges.
(2.) Shri Alok Garg, learned counsel for the appellant has argued that in so far as previous period of default of defendant is concerned, non-payment of rent was owing to the fact that there was a restraint order by the Commercial Taxes Officer, Circle-E dated 4.2.1980 under Section 11A of Rajasthan Sales Tax Act, 1954 requiring the defendant not to pay the amount of rent to the plaintiff. The said order was withdrawn on 25.9.1982. Thereafter the defendant sent to the plaintiff a cheque dated 15.10.1982 of Rs. 51,119,32/- by registered A.D. Post towards all the arrears, which was received by him on 22.10.1982. It was argued that the matter on behalf of defendant-appellant Oriental Insurance Company Ltd. was not diligently conducted. Despite grant of several opportunities, the Officer in charge has acted negligently and therefore all these facts could not be proved by lead of evidence. In fact, no evidence was led on behalf of defendant and it was in the absence of evidence that the suit was decreed against the defendant-appellant. Learned counsel submitted that the plaintiff has even denied the receipt of two cheques sent to him in November, 1982 and December, 1982, whereas these cheques were sent to him by registered post which he refused to accept. Even this evidence could not be brought on record due to aforesaid negligence. Learned counsel has cited the judgement of Supreme Court in J. Jermons v. Aliammal & Ors.-(1999) 7 SCC 382 and argued that Supreme Court in that case which too pertained to the eviction suit held that non-payment of rent due to restraint order passed by the Income Tax Officer under Section 222(1)(a) of Income Tax Act, 1961 read with Rule 26(1)(a) of Second Schedule thereto. does not constitute willful default on the part of the tenant. Learned counsel submitted that even the rent of the month of October, 1990 was also paid by cheque on 28.11.1990. According to Section 13(4) the rent was required to be paid within 15 days and for such delay in payment, the Court has the discretion to extend such period by further 15 days, but because the case on behalf of the defendant-appellant was negligently conducted, such application could not be made to the Court in time.
(3.) Learned counsel cited the judgement of this Court in Radhey Shyam Dhoot v. State of Rajasthan & Ors.-2009 WLC (Raj.) UC 595 and argued that in that case in spite of 11 opportunities, evidence was not led by the defendant and the suit was decreed against him. However, this Court granted one last opportunity on payment of cost of Rs. 2,000/- by setting aside the judgement and decree of the trial court and remanded the matter back. Learned counsel for the same proposition of law cited the judgment of this Court in Om Prakash & Ors. v. Ram Dutt & Anr.-RLW 1999 (2) Raj. 1254 in which case despite 19 opportunities granted, defendant failed to adduce evidence and the Court was yet persuaded to grant one more opportunity on payment of cost.;