MAHENDRA BHUSHAN, J. - (1.) THIS is a tenant's first appeal in a suit for eviction which has been decreed by the trial Court.
(2.) THE dispute relates to two Eastern Flats of Motikunj on plot No. S-32, C-Scheme, Arbind Marg, Jaipur which are more specifically described in para No. 2 of the plaint. One Motilal along with his four sons, Govind Narain, Laxmi Narain, the two plaintiffs (respondents No. 1 & 2) constituted an undivided Hindu family of which the father and the four sons were coparceners THE two flats in dispute were let out by Motilal as Karta of the joint Hindu family to M/s Batliboi Company Private Ltd. (hereinafter referred to as the defendant) at Rs. 375/- p. m. on April 1, 1966. THE rent was increased to Rs. 425/- p. m. with effect from October 1, 1972. Under an oral partition, alleged to have taken place on February 22, 1973, the two disputed flate were allotted to the share of the above named two plaintiffs. THE defendant was informed about the oral partition under a notice dated December 12, 1973 and was asked to pay the rent to the plaintiffs. A civil suit No. 132 of 1974 (7/75) was filed by the plaintiffs against the defendant and others on October 15, 1974 on several grounds as enumerated in section 13 of the Rajasthan Premises (Central of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) and one of the grounds taken was that the defendant has neither paid nor tendered rent due from him for six months for the period January 1, 1975 upto the date of the suit and as such is liable to be evicted, under section 13 (1) (a) of the Act. THE suit was contested by the defendant who came up with a case that he was always ready and willing to pay the rent and the circumstances were stated in the written statement under which the rent could not be paid. It was also stated that the defendant has not committed any default as envisaged in section 13 (1) (a) of the Act. Moreover, on the date of the suit six months' rent was not due as it has been deposited under section 19-A of the Act. THE first date of hearing in that suit was December 6, 1974 and on that date neither the arrears of rent due were paid nor an application under sub section (5) of section 13 of the Act, as stood prior to the amendment of 1975, was filed. THE Court, therefore, on August 7,1975 ordered that the defence against eviction of the defendant be struck out. It appears that when that suit was pending the Act was amended by Ordinance No. 26 of 1975 which came into force with effect from September 29, 1975 and later on was replaced by an Act No. 14 of 1976 under sec. 13a of the Act as amended by the Ordinance, an application was filed on October 22, 1975 and the court determined the arrears of rent etc. in terms of section 13 A (b) of the Act. THE defendant paid the amount so determined, but because there were other issues the trial of that suit continued. The plaintiffs again filed a civil suit No. 79 of 1977 in the Court of learned District Judge, Jaipur City, Jaipur on April 7, 1977, on the ground that the defendant has neither paid nor tendered the rent due from November 1, 1975 to March 31,1977, for a period of 19 months, amounting to Rs. 7224/ -. Out of this amount Rs. 6800/- were payable to plaintiff No. 1 and Rs. 425/- were payable to plaintiff No. 2. Thus the second suit was only filed on the ground that the defendant has again committed default under section 13 (1) (a) of the Act in payment or tender of the rent to the plaintiffs. This suit was contested by the defendant on the ground that in the earlier suit no default in payment or tender of rent for six months had been committed by the defendant and as such the second suit is not based on the ground that the defendant has again committed default. It was further pleaded that no benefit of section 13 A of the Act had been taken by the defendant in the earlier suit, therefore, in the present suit the defendant was entitled to determination of provisional rent and interest under section 13 (3) of the Act and was also entitled to the benefit of the provisions of section 13 (6) of the Act. The learned trial Court framed issues on November 17,1978 and issue No. 1, which is only relevant for the disposal of this appeal, when literally translated in English will read as under; - "issue No. 1- Whether the plaintiffs are entitled for a decree for eviction of the suit house on the ground as mentioned in para 12 of the plaint ?" The trial Court after recording the evidence for the parties and holding that the defendant had taken advantage under section 13a of the Act in the earlier suit and further holding that he had again made default in payment of rent for six months, decreed the suit. Before I take up the respective contentions of the learned counsel for the parties, it is worth mentioning here that when the second suit, out of which the present appeal arises, was decided by the learned District Judge on April 26, 1980 the earlier suit No. 132 of 1974 (7/75) was pending in the Court of the learned Additional District Judge No. l Jaipur City,. That suit was dismissed by the Court on July 28, 1980 i. e. after the decision of the second suit. An application under O. 41 R. 27 C. P. C. for taking the certified copy of that judgment as additional evidence on record was filed on behalf of the defendant and after notice to the plaintiffs the arguments were heard. The learned advocate for the plaintiffs had no objection to take this judgment on record as additional evidence. That apart, I am of opinion that to enable this Court to decide the present appeal and to pronounce judgment, taking on the record the certified copy of the judgment in the earlier suit, appears to be necessary. Therefore, that application has been allowed and the judgment dated July 29, 1980 in the earlier suit shall be read in evidence as Ex. C-l. Mr. R. C. Kasliwal, learned advocate for the defendant has contended that the defendant was always ready and willing to pay the rent; that the first suit was not based on default and no finding in the earlier suit was given that the defendant has committed default as enumerated in section 13 (1) (a) of the Act and that the second suit was also not based on second default and as such the learned trial Court should have determined the provisional rent and interest under section 13 (3) of the Act and on deposit of amount so determined by the defendant within prescribed time the suit should have been dismissed. The failure of the Court to determine provisionally the rent and interest under section 13 (3) of the Act which is mandatory provision, renders the decree of the trial Court as illegal. Mr. Paras Kuhad, learned advocate for the plaintiffs, on the other hand, contends that the relevancy of the first default only arises in the second suit which is filed on the ground that the defendant has again committed default under section 13 (1) (a) of the Act, and as such it was not necessary for the trial Court in the earlier suit to have given a finding that the defendant has committed a default. He further contends that in the instant case such a finding in the earlier suit can be spelt out from the judgment Ex. C-l. According to him from the undisputed facts of the second suit out of which the present appeal arises, it can be said that the second suit is based on second default and on the material on record a finding can be given in second suit and has been rightly given by the trial Court, that the defendant had earlier also committed default under section 13 (1) (a) of the Act. Lastly it is contended by him that the conduct of the defendant through-out shows that he was never ready and willing to pay the rent.
(3.) THE first question, therefore, which calls for determination is as to whether it is a requirement of law that a finding on default under sec. 13 (1) (a) of the Act should be given by the trial Court in the earlier suit and if so whether in the second suit, which is filed on the ground that the defendant (tenant) has again committed a default in the payment of rent, such a finding cannot be given. The provisions with regard to payment to the landlord or deposit in the Court of rent determined by the Court in a suit for eviction in which one of the ground set forth is under clause (a)of sub-section (1) of Sec. 13 of the Act, have been amended from time to time. Under Sub-Sec. (4) of Sec. 13 of the Act, as it stood prior to the amendment introduced by the Ordinance No. 26 of 1975 which later on was replaced by Amending Act No. 14 of 1976, in a suit for eviction on the ground set forth in clause (a) of sub-sec. (1) of Sec. 13 of the Act with or without any of the other grounds referred to therein, on the first date of hearing or on or before such date not exceeding two months the Court, on an application made to it, may fix in this behalf, the tenant was required to deposit in the Court or to pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to the date of the order together with interest on such amount calculated at the rate of Rs. 6% per annum. He was also required thereafter to continue to deposit or pay, month by month, by 15th of each succeeding month a sum equivalent to the rent at that rate. No application seeking permission of the Court to deposit the rent was required and on failure of the tenant to deposit the arrears of rent along with interest in terms of the aforesaid provision and the further failure of the tenant to continue to deposit the mothly rent by 15th of each subsequent month, his defence against eviction was to be struck out. The object of the Act is to benefit the tenants and, therefore, special provisions in the matter of payment of arrears of rent have been introduced from time to time. By the Amending Act No. 12 of 1965, Sec. 13a of the Act was inserted. Under that provision one more chance was given to such tenants who had made default in the payment of rent so as to purge themselves of default. That section 13a was substituted by present Sec. 13a under the aforesaid Ordinance which was replaced by Act No. 14 of 1976. Thus, it will be clear that either under sub section (4) of Sec. 13 of the Act, as it stood prior to the amendment of 1975, or under sub section (3) of Sec. 1 of the Act as it stands, general provisions are contained and if the tenant takes benefit of those general provisions suit based on default cannot be decreed against him. But the provisions contained in Sec. 13a of the Act are "special provisions" and are only applicable to pending matters. Under these special provisions on the payment being made within time fixed by the Court of all the amount of arrears etc. determined, the proceedings have to be disposed of as if tenant has not committed any default. But under the general provisions, referred to above, if the tenant does not contest that a default has been committed by him and complies with the general provisions so far as the default is concerned, the suit cannot be decreed. Even if the tenant contests having committed default but in order to escape the consequences of his defence against eviction being struck out he pays the amount determined by the Court, the Court has to frame an issue about the default and decide it in accordance with law. Thus in case a tenant takes benefit of the "special provisions" contained in Sec. 13a of the Act it is not at all necessary for the Court to frame an issue as to whether the tenant has committed any default or not because on payment within time fixed by the Court of the amount determined under Sec. 13 (a) (b) of the Act, the proceedings have to be disposed of as if the tenant has not committed any default. In case of a determination under sub section (3) of section 13 of the Act, which determination is only provisional of the amount of rent, in case the tenant in the written statement has contested that he has made any default, the Court has to frame an issue and try and in case finally it holds that the tenant has committed default under section 13 (1) fa) of the Act, it will not pass a decree for eviction on such ground of default because the tenant has complied with the provisions of sub-sections (3) & (4) of section 13 of the Act. The contention of the learned advocate for the defendant that in this case it was necessary for the learned trial Court in the earlier suit to have given a finding that the suit was based on default, has no force. A look at Ex. C-l will make it clear that though issue No. 3 was struck as to whether defendant No. 1 is a defaulter, but because the defendant took benefit of the special provisions contained in sec. 13a of the Act as was introduced by Ordinance No. 26 of 1975, the proceedings has to be disposed of as if the tenant has not committed any default. But having framed an issue No. 3 as aforesaid it was necessary for the trial court to have given finding on that issue at the time of disposing of the suit finally. The observations of the trial Court in the earlier suit under Issue No. 3 that under its earlier order dated August 7, 1975 (Ex. 7) holding that the defendant was defaulter his defence against eviction was struck out, do not appear to be in accordance with law. Moreover a perusal of Ex 7 will make it clear that no such finding was recorded therein. To my mind, while dealing with the matter of striking out defence against eviction of a tenant under the relevant provisions the Court is not called upon to hold as to whether a tenant is a defaulter or not and also cannot hold so. All that is required at that stage for the Court to consider is as to whether the tenant has paid the amount of rent determined under subsection (3) of section 13 of the Act and has continued depositing the rent under section 13 (4) of the Act. In Ex. 7 in the end no doubt, it has been observed by the Court that "i am of opinion that a penalty as provided in section 13 (6) of the Act would come into operation and the defence of defendant No. 1, is liable to be struck out on account of defaults". But by "defaults" the Court ment defaults in compliance with the provisions of sub-sec. (4) of sec. 13 of the Act as it stood before the amendment by Ordinance No. 26 of 1975. To my mind, in a case where the defendant contests the plea of the plaintiff that the defendant has committed defaults, the stage to give a finding on such an issue only will arise at the conclusion of the trial. To my mind, a reading of sub-section (8) of section 13 of the Act will, all the more, make it clear. Under that provision at the time of the decision of the suit, the equities are to be worked out and in case the amount determined under sub-sec. (3) of section 13 of the Act and deposited in the Court or paid to the landlord as well as deposited or paid under sub section (4) of section 13 of the Act is less than the amount of rent finally decided as payable by the tenant, a decree for the balance amount against a tenant has to be passed. In case such amount is in excess of the amount of rent finally decided as payable by the tenant the Court shall pass a decree in favour of the tenant for such excess amount. ;