- (1.) THIS second appeal has been filed by the defendants against the judgment and decree of the learned District Judge, Bikaner dated May 23, 1987 by which he dismissed the appeal and confirmed the judgment of the learned Additional Munsif, Bikaner dated March 18, 1985, decreeing the suit for ejectment on the ground of default in payment of rent. The facts of the case giving rise to this appeal may be summarised thus.
(2.) THE plaintiff-respondents filed a suit against the appellants on the grounds of default in payment of rent for more than six months, reasonable and bonafide necessity and sub-letting. THE defendants seriously resisted the suit. THE learned trial court determined the amount of rent and interest under Section 13 (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be called 'the Act' ). THE defendants deposited the determined amount in the court within time but they failed to deposit the rent of two subsequent months i. e. of February, 1984 a. 06. 1984 within time and accordingly their defence was struck out. After recording the statement of the plaintiff Sri Kishan P. W. 1 and hearing the parties, the trial court decreed the suit for ejectment holding that the defendants have committed defaults in payment of rent of said two months. THE defendants preferred appeal against the judgment and decree and it was dismissed by the learned District Judge, Bikaner by his judgment under challenge. After hearing the parties, this appeal was allowed by me on October 30, 1987, relying upon Deshraj vs. Om Prakash (1) and Siyasaran vs. Sagarmal Review Petition No. 9/88 was moved by the plaintiff-appellant against the judgment dated October 30, 1987. It was allowed by order dated August 9, 1989, relying upon Yogendra Sharma vs. Naraindas (3) and State of Rajasthan vs. Mehta Chetandas Kishandas (4 ). It has been contended by the learned counsel for the defendant-appellants that Deshraj vs. Om Prakash (supra) and Siyasaran vs. Sagarmal Modi (supra), have not been over ruled by Yogendra Sharma vs. Naraindas, (supra) and they are still good law. He further contended that it is not provided in sub-section (5) of section 13 of the Act that in default of payment of rent of any subsequent month the suit for ejectment based on the ground of default would be decreed. He lastly contended that the decree has been passed without proper representation of the minor defendants Vishnu Dutt and Chandra Shekhar and on this ground also it deserves to be set aside. In reply, it has been contended by the learned counsel for the plaintiff-respondents that the learned lower courts have rightly decreed the suit for ejectment on the ground of defaults in payment of rent of the months of February a. 06. 1984. He further contended that Deshraj vs. Om Prakash (supra) and Siyasaran vs. Sagarmal Modi (supra) have not been approved in Yogendra Sharma vs. Naraindas (supra ). He further contended that Siyasaran vs. Sagarmal Mojdi was not approved in Rajasthan State Agriculture Marketing Board vs. Smt. Gurdeep Kaur, (5) and view similar to Yogendra Sharma's case was taken in Suraj Narain vs. Smt. Laxmi Devi He further contended that provisions of section 13 are quite different from the provisions of Section 13-A of the Act. He lastly contended that the said minors were not necessary parties, they were not tenants within the meaning of section 3 (vii) of the Act and in any view of the matter they were duly represented by their mother and elder brother. Admittedly, the provisions of section 13 of the Act are applicable in this case and not the provisions of Section 13-A. It is also not in dispute that the amounts of rent of the months of February a. 06. 1984 were not deposited by the defendant-appellant in time. Sub-sections (5) and (6) of Section 13 of the Act run as under: - " (5) If a tenant fails to deposit or pay any amount referred to in sub-section (4) 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. (6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-sec. (1) shall be passed by the court against him. Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation if he again makes a default in the payment of Rent of that accommodation for six months. " The above quoted provisions clearly provide that if a tenant fails to deposit or pay the amount determined under sub-section (3) of Section 13 of the Act or any amount of subsequent month within the specified time, the court shall order the defences against eviction to be struck out and shall proceed with the hearing of the suit. They further provide that if tenant makes deposit or payment of the determined amount and also amounts of subsequent months within specified time, no decree for eviction on the ground of default as mentioned in clause (1) of sub-section (1) of section 13 of the Act shall be passed against him. These provisions do not provide that on deposit or payment of the determined amount, the proceedings shall be disposed of/continue as if the tenant had not committed any default as provided in clause (b) of Section 13- (A) of the Act. It cannot, therefore, be said that the ground mentioned in clause (a) of sub-section (1) of Section 13 vanishes as soon as the tenant deposits the determined amount on the first date of hearing or within the time allowed by the court. If has been held so by a Division Bench of this Court in Yogendra Sharma vs. Naraindas, (supra) runs as under:- "our answer to the questions referred to above is as under:- (1.) As seen above there can be two categories of suits for eviction, when the sole ground for default is as contemplated under section 13 (3) (a) of the Act. The first category is when on the determination of the rent under sec. 13 (3) and upon payment or deposit of the same, there remains nothing to be done and the Court has to dispose the suit finally at that stage and in such a case the suit will not remain pending and it will not be necessary for the tenant to continue to deposit rent month by month. Even in such cases if the suit remains pending only for the purpose of depositing the rent then the tenant has to deposit rent month by month. In the second category of cases where though the sole ground for eviction is default in payment of rent but there are other matters in dispute between the parties, which do not come to an end upon determination and payment of rent under section 13 (3) of the Act and this provisional determination of rent has to be decided finally at a later stage and in such a situation the suit has to continue even after the deposit of rent determined under section 13 (3) of the Act. In such suits, it is necessary for the tenant to continue to deposit rent month by month as provided by the sec. 13 (4) of the Act, till the disposal of the suit. (2) The suit for eviction on the sole ground under section 13 (1) (a) does not ceases to be a suit for eviction on deposit of rent determined under sec. 13 (3) and deposit under the first part of section 13 (4) of the Act. The suit has to be disposed of finally if no point of dispute remains to be decided between the parties. If the suit has to proceed further for the purposes of determination of some controversy between the parties, then the suit continues to be suit for eviction under section 13 (1) (a) of the Act and all the provisions for seetion 13 (3) (a) to 13 (8) are applicable to the proceedings. "
(3.) CONTRARY view taken in Siyasaran v. Sagarmal Modi (supra), Shyamlal v. Upbhokta Sahakari Samiti (7) and Deshraj v. Om Prakash, (supra) are no longer good law. All these three cases have been decided by Single Bench of this Court. The first two cases have duly been considered in the Division Bench case of Yogendra Sharma v. Naraindas, (supra ). The observations made in Deshraj vs. Om Prakash (supra) are contrary to the above quoted observations made in Yogendra Sharma's case. It may be mentioned here that the Hon'ble Judge who decided Siyasaran's case took the contrary view in Suraj Narain v. Laxmi Devi (supra ). Its paras 10, 11, 12 and 13 run as under : "10. A comprehensive reading of sec. 13 as a whole and of its subclauses is that the intention of the legislature was that in a suit based on default of payment of rent, the defendant-tenant need not be effected, if he shows his readiness and willingness to pay the rent by first depositing the arrears of rent, as determined under sub-sec. (3) within the period mentioned in sub-sec. (4) and then further making regular payments month to month. 11. I am convinced that both these conditions are essential, inseparable and indivisable. The moment the tenant commits default in either of the two, he can do so at his own peril by exposing himself to the consequence of eviction. 12. Sub-clause (5) further confirms the view which I am taking in as much as it makes no distinction between the first clause or the second clause of sub-sec. (4)CONTRARY to it, it used the words 'any amount'. The word 'any' is significant. The Legislation has used the word 'any' to point out that there are two conditions in clause (4), and if any of the conditions is not fulfilled by the tenant, the court has got no option but to strike out the defence against the eviction. 13. Once the penalty prescribed in sub-clause (5) comes into play, a tenant cannot be saved from the consequences of eviction, as the defence umbrella provided by sub-sec (6) fails to protect him, because the 'sine qua non' or bed rock of application of sub-sec. (6) again is making deposit as required by sub-sec. (4)A combined comprehensive reading of sub-sec. (5) and (6) makes it clear that the legislature has emphasised the compliance of sub-clause (4) in unequivocal terms. The object is very obvious, that the tenant should be vigilant if he wants to take benefit of sub-clause (6)" It cannot, therefore, be held that the ground of eviction on account of default in payment of rent disappeared after the determined amount was deposited. The suit for ejectment on the ground of default in payment of rent has rightly been decreed by the learned lower courts. There is no force in the contention of the learned counsel for the defendant-appellants that the minor defendants no. 4 and 5 Vishnu Dutt and Chandra Shekhar were not properly represented during the trial of the suit. The summons issued to these minors were duly served upon their mother Smt. Sona (defendant no. 3 ). Shri Ghanshyam Ojha Advocate filed his power (paper no. 11-B) on August 30, 1981 for and on behalf of the defendant no. 3 Smt. Sona in her personal capacity and also in her capacity as the guardian of the minor defendants Vishnudutt and Chandra Shekhar. It is specifically mentioned in it that this power is being filed for and on behalf of the defendants Sona, Vishnu Dutt and Chandra Shekhar. Sub-rule (5) of rule 3 of Order 32, C. P. C. runs as under : " (5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree. " On December 18, 1984, Shri Ghanshyam Ojha Advocate moved an application, paper no. B-21, withdrawing his power for and on behalf of the minor defendants on the instructions of their mother Smt. Sona. By detailed order dated January 14, 1985, this application was rejected by the trial court. Thus the minor defendant continued to be represented in the suit. It may be mentioned were that the First Appeal No. 29/85 was filed by he defendant no. 3 Smt. Sona only. Subsequently, application, paper no. B-13, was moved for transposing the minor respondents Vishnudutt and Chandra Shekhar as appellants no. 2 and 3. This application was allowed on November 1, 1985. This second appeal has been filed by the mother, brother and sister of the said minor defendants and they have also been impleaded in it as appellants no. 3 and 4 through their maternal grand father Narainlal. It cannot, therefore, be said that these minor defendants were not duly represented in the suit. ;