K. S. SIDHU,j. - (1.) THE only question, though a crucial one, which falls for determination in this petition of revision is whether the rights and liabilities of the landlord and tenant in a suit for eviction instituted, under section 13, Rajasthan Premises (Control of Rent and Eviction), Act, 1950, (hereafter called the Act), before the amendment of the Act by Rajasthan Ordinance No. 26 of 1975, since replaced by the Rajasthan Amending Act No. 14 of 1976 are governed by section 13, as it stood before the amendment or by the amendments enacted during the pendency of the suit. It has arisen in the following circumstances.
(2.) THE landlord, Firozibai brought a suit against Jagdish Prasad and Ram Bharoselal, her tenants, for a decree for eviction from a shop on the ground inter alia, that they had neither paid nor tendered the amount of rent due from them for six months. On April 5, 1973, which appears to have been the first day of hearing in the suit, the tenants deposited in the court a sum of Rs. 325/-consisting of arrears of rent, Rs. 275/- from May 2, 1972 to April 1, 1973, calculated at the rate of Rs. 25/- per mensem, and Rs. 50/-, towards costs and interest on the amount of aforesaid arrears. THE tenants continued to deposit or pay the rent regularly month by month, at the rate of Rs. 25/- per mensem till June 1, 1976. THE rent for the month from June 2, 1976 to July 1, 1976, which was required to be deposited or paid by July 16,1976, was admittedly not deposited till August 12, 1976. THE landlord made an application, dated, August 27, 1976, for an order striking out the defence against eviction in accordance with the provisions of section 13 of the Act. THE tenants contended the said application and pleaded that they had tendered the rent to the landlord and that it was only on her refusal that they had made the deposit in the court on August 12, 1976. It appears that, during arguments in the courts below, an additional plea was raised on behalf of the tenants to the effect that, as on April 5, 1973, when they made the deposit of Rs. 325/- in the court, a sum of Rs. 275/- as arrears of rent and Rs. 9/- as interest thereon, in all Rs. 284/- only were due from them and that thus an amount of Rs. 41/- had all along been lying in excess with the landlord who could quite conveniently appropriate therefrom a sum of Rs. 25/-towards rent for the period from June 2 to July 1, 1976. By its judgment, dated, October 10, 1977, the trial court rejected the pleas of the tenants, allowed the landlord's application dated, August 27, 1976, and consequently ordered the defence against eviction to be struck out The tenant's appeal from that order has been dismissed by the learned Additional District Judge, No 2, Dholpur, on December, 1980. Aggrieved by the order of the appellate court which has affirmed the order of the trial court striking out the tenants' defence against eviction, the tenants have filed the present petition of revision to get the order reversed, Notice of motion of this petition was served on the landlord, Mr. J. S. Rastogi, Advocate, entered appearance on her behalf. After hearing both sides and giving the matter my careful consideration, I am in agreement with the courts below that once the tenants had deposited, suo-moto or otherwise, the amount of Rs. 50/- towards costs and interest on April 5, 1973, they could not be heard nearly four years later telling the court for the first time in reply to the landlord's application dated, August 27, 1976, for an order striking out their defence, that the defence may not be struck out because the amount which they had deposited towards costs way not payable in law and therefore should be adjusted against rent payable for the month from June 2 to July 1, 1976. Whether costs were payable in law or not, the fact remains that the tenants deposited the amount in question towards costs and the landlord received the payment towards costs. There was thus no amount left with the landlord in the tenants' account as on & from June 2,1976,when the tenancy month, for which the default occurred, commenced, to August 12, 1976, when the tenants made the deposit in the court towards the rent for the said month. In the circumstances the plea that the tenants had deposited in the court, in April 1973, the rent for the month of June, 1976. three years in advance, was rightly rejected by the courts below as a wholly artificial plea.
(3.) MR. B. P. Agrawal, learned counsel for the tenants then argued that the tenant's defence against eviction cannot be validly struck out under section 13 (5) of the Act, as it stands now after the amendments enacted during the pendency of the suit, because, as he syllogised, section 13 (5) cannot come into operation without a prior determination of rent by the court under section 13 (3) and there was no such prior determination by the court in this case This argument in so far as it goes, is not open to question. A plain reading of the provisions of sub-sections 3, 4 and 5 of section 13 of the Act, as amended during the pendency of the suit, would at once show that the order under sub-section 5, striking out the defence against eviction could only be made in a case in which the court had first provisionally determined under sub-section 3, the amount of rent to be deposited in the court or paid to the landlord by the tenant, and, while making such determination, had also indicated its decision regarding the rate of rent if the rate claimed by the landlord was disputed by the tenant. There was no question of any provisional determination of the arrears of rent and the rate of rent under sub-section 3 of section 13 of the Act in the instant case for this sub section was not even in existence at the material time. It was enacted more than two years after the initial deposit was made by the tenants. That being so, no order striking out the defence against eviction could legally be passed under section 13 (5) of the Act in the facts of this case. This will not, however, help the tenants at all, for I am satisfied that the impugned order can be defended under the provisions of sub-sections 4, 5 and 6 of section 13 of the Act, as they existed prior to the amendment of this section by Rajasthan Ordinance No. 26 of 1975 (later replaced by Rajasthan Amending Act, No. 14 of 1976), read with the provisions of section 6, Rajasthan General Clauses Act (No. 8 of 1955 ). I may reproduce here the relevant provisions as under : - "sub-sections 4, 5 and 6 of section 13 of the Act before they were superceded by the Rajasthan Ordinance No. 26 of 1975. 4. In a suit for eviction on the ground set forth in clause (a) of subsection (1) with or without any of the other grounds referred to in that subsection, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months as may be extended by the court, deposit in court or 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 upto the end of the month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six per cent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at the rate. 5. If in any suit referred to in sub-section (4) there is any dispute as to the amount of rent payable by the tenants, the court shall determine, having regard to the provisions of the Act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order in accordance with the provisions of section (4 ). 6. If a tenant fails to deposit or pay any amount referred to in subsection (4) (or sub-sec. (5)) 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. Section 6, Rajasthan General Clauses Act, 1955. Effect of repeal - (1) Where any Rajasthan law repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) (b) (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so replealed; or (d) ________ (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, fine, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such fine, penalty, forfeiture or punishment may be imposed as if the repealing law had not been passed. (2 ). . . . . . . . . . . . . . . " It will be presently shown that, notwithstanding the repeal, by substitution, of the provisions of sub-sections 4, 5 and 6 of section 13 as reproduced above by the provisions of Rajasthan Ordinance No. 26 of 1975 (later replaced by Rajas-than Amending Act No. 14 of 1976), this suit which was already pending at the time of repeal was required, under law, to be continued as if the aforesaid Rajasthan Ordinance and the Amending Act had not been passed, and, therefore, the rights and liabilities of the parties arising out of the default in the payment of rent for the month from June 2, 1976 to July 1,1976, must be determined on the basis of sub-sections 4, 5 and 6 of section 13 as they existed prior to the promulgation of the Rajasthan Ordinance. Before I take up detailed discussion in that behalf, it may be pointed out that authority is available for the view that if the impugned order can be justified on a provision of law other than the one under which it was passed by a lower court, the superior court may uphold it on the basis of the provisions of law which actually governs the case. References may be made in this connection to State of Punjab vs. Mohar Singh (l), in which the highest court in the land hold that if the conviction of the respondent under sec. 7 of the East Punjab Refugees (Registration of Land Claims) Act, 1948, as ordered by the trying Magistrate, was not sustainable, there would be no serious difficulty to alter the conviction to one under identical provisions of the East Punjab (Registration of Land Claims) Ordinance 1948, which had been repealed and replaced by the said Act, provided he could be prosecuted and punished under the said Ordinance after it had been repealed. It was held in the cited case on the basis of sec. 4, Punjab General Clauses Act which is peri material with sec 6, Rajasthan General Clauses Act, that he could be prosecuted and punished under the Ordinance after its repeal and replacement by the aforementioned Act. A combined reading of the provisions of sub-sections 4,5 and 6 of sec. 13 of the Act, as they existed prior to the amendments of 1975 and 1976, and which have been reproduced above, would show that if a tenant fails to deposit or pay the rent for any month by the fifteenth of the succeeding month, the court has no option but to strike out the defence and proceed on with the hearing of the suit. In other words, the tenant by committing a default in that behalf incurs a liability of his defence against eviction being struck out mandatorily under sub-section 6 reproduced above. The material point which therefore requires consideration is whether the defence of the tenants herein against their eviction could be validly struck out under sub-section 6 of section 13 after its repeal and replacement by the Rajasthan Ordinance of 1975 and thereafter by the Rajasthan Amending Act of 1976. ;