- (1.) THESE two revision petitions by tenants against the same landlord-non-petitioner raise identical questions and as they were heard together, it will be convenient to dispose them of by a common judgment. S. B. Civil Revision No. 9 of 1981 is by the tenant Ratanlal against the order dated October 24,1981 passed by the District Judge, Merta in Civil Misc. Appeal No. 4 of 1977, by which, he dismissed the appeal against the order dated February 4, 1977 of the Munsif, Nawa, who struck out the petitioner's defence against eviction.
(2.) A show cause notice was issued to the non-petitioner as to why the revision petition be not admitted. The record was sent for on April 2, 1981. The Court ordered that it would be proper that the revision petition may be heard along with S. B. Civil Revision Petition No. 18 of 1981: Jethmal Vs. Ramlal. On May 4, 1981, it was ordered that this revision petition be listed for admission along with S. B. Civil Revision Petition No. 18 of 1981. That revision has been listed today. Learned counsel for the parties stated that arguments may be heard and this revision petition may finally be disposed of. I may first notice the facts giving rise to S. B. Civil Revision Petition No. 9 of 1981: Ratanlal vs. Ramlal. The plaintiff-non-petititoner instituted a suit for arrears of rent and ejectment against the petitioner in the court of Munsif, Nawa on January 15,1976. The plaintiff sought ejectment on the ground mentioned in s. 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) (which will hereinafter, for the sake of bravity, be referred to as 'the Act'), i. e. , on the ground of defaults in payment of monthly rent. After the service of the notice the defendant-petitioner submitted an application under sec. 13 (3) of the Act for determination of the amount to be deposited by him. The plaintiff submitted his reply on April 13, 1976. On Aug. 2, 1976, the trial court determined the amount of rent and interest and directed the defendant to deposit it in court by Aug. 17, 1976. On Aug. 17, 1976, an application was moved on behalf of the defendant that time may be granted to him to deposit the rent for the period Oct. 1, 1973 to October 31, 1974. The Court granted the time. On September 16,1976, an application signed by the defendant and his counsel, was filed praying that one month's time may further be allowed for depositing the amount in pursuance of the order dated August 2, 1976. A reply was filed on that very day. Learned counsel for the plaintiff stated that he has no objection if one month's time is granted for depositing the amount. On October 15,1976, the defendant filed an application along with the tender praying therein that period for depositing the rent may be extended and an order may be made for depositing the amount upto October 25, 1976, On October 25, 1976, a sum of Rs. 980/- was paid to the counsel for the plaintiff and it was accepted by him. On December 16, 1976, an application was moved on behalf of the plaintiff for striking out the defence against eviction on the ground that the defendant has committed default in payment of the rent for the months of August and Sept. 1976 inasmuch as the rent for the month of August was not deposited by Sept. 15, 1976 and the rent for the month of September, 1976 was not deposited by October 15, 1976 and, therefore, defence against eviction may be struck out under S. 13 (5) of the Act. The application was contested by the defendant by filing the reply on January 10, 1977. The learned Munsif, by his order dated February 4, 1977, held that the defendant has committed default in payment of monthly rent and, therefore, his defence against eviction is struck out. On appeal, the learned District Judge, concurred with the order of learned Munsif and dismissed the appeal by his judgment dated October 24, 1980. Hence S. B. Civil Revision Petition No. 9 of 1981. SB. Civil Revision No. 18 of 1981. This revision is by defendant-tenant against the order dated October 24, 1980 of the District Judge, Merta, passed in Civil Appeal No. 6 of 1977, by which he maintained the order dated February 4, 1976 of the Munsif, Nawa striking out his defence against eviction. The plaintiff-non-petitioners brought a suit for rent and ejectment against the defendant. The plaintiff claimed ejectment on the ground that the defendant is a defaulter within the meaning of S. 13 (1) (a) of the Act and, therefore, has rendered himself liable to eviction. The facts giving rise to this revision petition are substantially the same with those in S. B. Civil Revision Petition No. 9 of 1981 except with the variation in the amount of rent and interest, which was determined and paid to the learned counsel for the plaintiff on October 25, 1976. This revision was admitted on April 1, 1981. I have heard Mr. K. C. Samdaria and Mr DM. Singhvi for the petitioners and Mr. R. R. Chacha for the non-petitioner and have gone through the record.
(3.) IT is not in dispute in both the revision petitions that the defence against eviction was struck out on the ground that the defendant-tenants had failed to deposit the monthly rent of August, 1976 by September 15, 1976 as required by S. 13 (4) of the Act. There is no dispute that the application was moved on behalf of the defendants on August 17, 1976 for grant of one month's time which was granted. On September 16, 1976, a second application was submitted for grant of further time of one month for depositing the amount determined, which was also granted as the learned counsel for the plaintiff had no objection to it. Subsequently, on October 15, 1976, another application was moved along with the tender stating that as the Presiding Officer of the Court was on leave upto October 24, 1976 and therefore, the amount could not be deposited and as such the time may be extended upto October 24, 1976. On October 25, 1976, learned counsel for the plaintiff accepted the rent and passed a receipt. The rent for the month of September, 1976 could be deposited by fifteenth of October, 1976 and a further period of fifteen days could be enlarged under S. 13 (4) of the Act. The rent was accepted on October 25, 1976. On the basis of the above facts, learned counsel for the defendant-tenants contested that the default or failure of the tenants to pay or deposit monthly rent of August, 1976 by September 15, 1976 was waived by the plaintiff and the default was condoned and, therefore, the defence against eviction could not be struck out. This is contested by Mr. Chacha, learned counsel for the non-petitioner. He submitted that on the facts and circumstances of the case, which have been narrated above and about which there is no dispute, it cannot be said that there was waiver on the part of the plaintiff-landlord in regard to the default committed by the defendants in payment of the monthly rent of August, 1976 as contemplated under S. 13 (4) of the Act. I have bestowed my most anxious and careful consideration to the rival contentions raised by the learned counsel for the parties. The first and foremost but interesting question that crops up for consideration is whether by acceptance of the rent upto October 31, 1976 on Octobar 25, 1976 by the plaintiff's counsel (as it was not under protest) amounts to waiver on the part of the plaintiff so as to disentitle him to claim that defendant's defence against eviction under S. 13 (5) of the Act, should be struck out. ;