MAHENDRA BHUSAN SHARMA, J. - (1.) THE suit premises are situated in Dhan Mandi Ganga -nagar and the respondent filed a suit against the appellant in the court of Civil Judge, Ganganagar on May 17,1978 and one of the grounds set out in the suit was that the appellant has neither paid nor tendered rent due for six months before the filing of the suit and as such was liable to be evicted. So far as the allegations seeking eviction of the appellant from the suit premises, with ragard to non -payment of rent are concerned, they were that the rent for the period from April 1, 1977 to March 31, 1978, 13 months @ Rs. 2500/ - per year, amounting to Rs. 2708.33 was due and has neither been paid nor tendered. After the written statement had been filed, in with a plea was raised that the suit on the ground of default was without any basis and was wrong, the learned trial court under the provisions of Sub -section (3) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act') provisionally determined the arrears of rent and interest amounting to Rs. 2678.50p. on October 17, 1979, and allowed adjustment of Rs. 1,000/ - which had been deposited by the appellant in that court. The appellant was directed to pay a sum of Rs. 1678.50 within 15 days in the trial court. While determining the arrears of rent and interest in terms of Sub -section (3) of Section 13 of the Act, the court took into consideration yearly rent @ Rs. 1,000/ - per year the rate at which it was last paid.
(2.) THE amount determined by the court was paid within time in the court. Rent for the month of October, 1979 was also paid by the fifteenth of next month, but so far as the rent for the months of November, December 1979 and January, 1980 is concerned, it was not paid within 15 days of their becoming due. It was also not paid within next fifteen days upto which the court had discretion he extended the time for payment of monthly rent. An application under Sub -section (5) of Section 13 of the Act for striking out the defence against eviction of the appellant was filed on behalf of the respondent on Feb. 28, 1980 wherein it was mentioned that the rent for the months November, December 1979 and January, 1980 has not been paid in terms of Sub -section (4) of Section 13 of the Act. After reply to this application was filed the learned trial court under the impugned order directed that the defence against eviction of the appellant be struck out before I take up the main arguments in the appeal it may be stated that before filing the suit for eviction,which was filed on May 17, 1978, the appellant deposited advance rent Under Section 19CC of the Act for the period from April 1, 1977 to March 31, 1978 on February 7, 1978. When an application Under Sub -section (5) of Section 13 of the Act for striking out the defence against the eviction of appellant was filed, the appellant gave application to the effect that a sum of Rs. 1,000/ -towards the rent for payment to the respondent had been deposited by him Under Section 19CCofthe Act and, therefore, the monthly rent for the months of November, December, 1979 and January 1980 may be adjusted out of that rent. An application was also filed that the time for the payment of rent for the aforesaid three months may be extended and a case was also set up that the suit itself was not based on non -payment as set out in Sub -section (1)(a) of Section 13 of the Act. Therefore, the defence against eviction could not be struck out.The learned trial court inspite of these objections passed the impugned order. The main contention of the learned Counsel for the appellant is that before the provision of Sub -section (5) or Sub -section (4) of Section 13 of the Act could be attracted it was necessary that the suit must have been based on default in payment or tender of rent to the respondent by the appellant for a period of six months or more. According to the learned Advocate notwithstanding the fact that the order Under Sub -section (3) of Section 13 of the Act provisionally determining the arrears of rent and interest was not challenged and the appellant also deposited rent for the month of October, 1979, the appellant can still raise a plea that the defence against eviction cannot be struck out because the suit is not based on the ground of non -payment of rent for six months as set out in Section 13(1)(a) of the Act. The contention of the learned Counsel for the appellant is that even from the bare reading of the plaint, it will be clear that the mode of payment of rent was yearly and as such the rent for the period from April 1, 1977 to March 31, 1978 could have only become due on March 31, 1978 or on April 1, 1978. Thus, the yearly rent for the period was not in default for a period of six months and, therefore, the case was not and could not be Under Section 13(1)(a) of the Act. The contention of Mr. Parakh, learned advocate for the respondent is that once the court provisionally determines the rent and arrears in terms of Sub -section (3) of Section 13 of the Act and no appeal is filed against that order, that order becomes final, though in view of Nanneh Shah v. Ram Kumar (1966 RLW, page 446) it could be challenged in the final appeal as and when filed, against the decree. Mr. Parakh submits that once the tenant does not comply with the order under Sub -section (3) of Section 13 of the Act, inasmuch as he does not deposit the amount determined within the time allowed by the court and further fails to deposit the rent month by month by the fifteenth of the subsequent month Under Section. 13(4) there is no option with the court but to strike out the defence of the tenant against eviction under the provisions of Sub -section (5) of Section 13 of the Act. According to him while considering the case under Sub -section (5) of Section 13 of the Act it is no longer open to the court to see as to whether the arrears of rent were correctly determined under Sub -section (3) of Section 13 of the Act or not.
(3.) SECTION 13 Sub -sections (1)(a),(3),(4) and (5) which are relevant for the present purposes are to the following effect: Section -13 -Eviction of tenants -(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant (xxx) so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied (a) that the tenant has neither paid nor tendered the amount of rent due from him for iix months; or (3) In a suit for eviction on the ground set for forth in Clause (a) of Sub -section (1) with or without any of the other grounds 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 the land -lord 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 make default including the period subsequent there to upto the end of the month 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 up to 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 has 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 a tenant fails to deposit or pay any amount referred to in Sub -section (4) (xxx) 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. A bare perusal of the above extracted relevant provisions of Section 13 of the Act will make it clear that before a Court can be called upon to provisionally determine the arrears of rent and interest in terms of Sub -section (3) of Section 13 of the Act a suit for eviction must be on the ground as set out in clause (a) of Sub -section (1) with or without any other ground.;