- (1.) THE defendant (petitioner) challenged judgment of the District Judge in CMA No. 16/94 passed on 5. 8. 99 reversing the order dt. 8. 2. 94 of the learned Munsif Tonk in Civil Suit No. 236/91.
(2.) FACTS in a very narrow compass are thus. In a suit for eviction instituted by plaintiffs (respondents) on the ground of default in payment of rent to the suit shop, the trial Court under its order dt. 17. 4. 92 determined provisional rent u/s. 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short the Act) and direction the tenant (petitioner) to deposit the determined rent of Rs. 1253. 75p. by 1. 12. 92 which was admittedly deposited on 28. 11. 92, including monthly rent of November, 1992, Rs. 125/ -. The dispute arose when subsequently the tenant failed to deposit monthly rent regularly, i. e. December, 92 to February, 1993 but the rent for these months was deposited on 15. 4. 93 to the tune of Rs. 500/- and for the delay in rent of these months the tenant moved in application for condonation of such delay u/s. 5 of the Limitation Act, to which reply has also been filed by the landlord by specifically pleading inter alia that since the tenant failed to deposit monthly rent regularly his defence deserves to be struck out and to escape from striking out his defence, the tenant has moved this application. This application of tenant has been contested in its reply of landlord by specific denial of his averments describing them as an after thought story of any compromise talk. As regards one of the reasons for the delay, i. e. curfew clamped in the Tonk City owing to communal riots, the landlord in reply contended that such a curfew was only for few days in December from its 7th day, i. e. for 3-4 days on 26. 1. 93. The trial Court by its order dated 8. 2. 94 after having considered the material on record but relying on the decisions of this Court in Prahlad Kumar vs. Babu (1), allowed tenant's application and directed the tenant to deposit monthly rent regularly and the matter was posted for framing the issues. But, the landlord preferred misc. appeal which was allowed by the appellate court under its judgment dated 5. 8. 99 and set aside the trial court's order and thereby struck off tenant's defence on account of default in payment of monthly rent of December, 92, January to February 1993 within time stipulated under its order. Hence this revision petition. At the very outset, though Mr. S. M. Ali learned counsel for the tenant vociferously contended that the appellate court erred in holding that the court had no jurisdiction or discretion to condone the delay for making deposit of the provisionally determined rent of the suit shop and has only power to extend the time, but curiously enough I must hasten to add that such a contention of Shri Ali is totally misconceived, rather while merely stating the contentions of the landlord and relying upon besides applying the decisions of the Apex Court in Manju Chaudhary vs. Dulal Kumar Chandra (2), the appellate court categorically in last but in its preceding para held that the tenant has committed default in belatedly making payment of the rent of december, 92 to February 1993 which is not condonable and therefore, his defence is liable to be struck off. Be that as it may, after the larger Bench decision in Sitaram Agrawal vs. Nasiruddin (3), upholding Full Bench decision of this Court in Vishandas vs. Savitri Devi (4), it is settled law that provisions of Section 5 of the Limitation Act are applied for deposit of the rent u/s. 13 (4) of the Rent Act; (2) that Section 13 (5) of the Rent Act is directory and not mandatory; (3) the court has power, in the interest of justice and equity, to extent time beyond the limit prescribed u/s. 13 (4) of the Rent Act; and (4) that if the court is of the view the rent could not have been deposited in exceptional circumstances beyond control of the tenant; it can enlarge the time u/s. 148 CPC. That being so, larger bench of this Court held that it would be indeed proper for all courts to apply Section 5 of the Limitation Act with due caution and appropriate discretion as and when the court's jurisdiction u/s. 5 of the Limitation Act is specifically invoked.
(3.) ONCE I find that the appellate court has not at all held that the provisions of Section 5 of the Limitation Act are not applicable rather according to its categorical finding it is explicit clear that it has considered the reasons assigned by the tenant in his application for condonation of the delay in making late payment of monthly rent in dispute and while holding the reasons as insufficient & dissatisfactory for the delay, further held that the delay in question is not condonable, then in my considered view, only controversy remains for determination in this petition is as to whether the impugned order of the appellate court striking off the tenant's defence is sustainable or it does suffer from illegality with material irregularity warranting interference in revisional jurisdiction. Admittedly the tenant has lately deposited monthly rent of December, 92 to February, 93 on 15. 4. 93 and thereby committed defaults in making payment of these three months rent. Only grievance raised by the tenant is that delay in making payment of rent of these months (12/92, 1/93 & 2/93) be condoned for the reasons assigned by him in his application dated 8. 4. 93. This application is found on record of the trial Court and according to it, a specific prayer has been made that the delay in making payment and deposit of monthly rent w. e. f. December 92 be condoned and the cause for the delay assigned by the tenant in his application was as to the curfew champed in December 92 a. 01. 1993 so also because of impression given out that upon deposition of the arrears of rent determined provisionally, the litigation would come to an end, resulting into a compromise and the rent would be collected by the landlord. No doubt there was curfew clamped in the Tonk due to communal riots but admittedly it was only for few days in December 92 while only for 3-4 days from 26. 1. 93, inasmuch as according to order of trial Court determining provisional rent, the tenant had to deposit monthly rent by 15th day of succeeding of due monthly rent thereby on each 15th day of January, February or March, 93 so also in December, 1992 there was no curfew and having no hurdle for the tenant to get monthly rent deposited on 15. 1. 93, 15. 2. 93 and 15. 3. 93 respectively due of December, 92, January 93 & February 93. The cause for the delay as to the curfew is totally false and insufficient. Similarly chances of compromise having arisen allegedly on deposit of arrears of rent determined or automatic disposal of the eviction suit after determination of provisional rent, itself, I am of the considered view that in the instant case the suit was not restricted to the eviction on the ground of default rather admittedly as per written statement of the tenant himself, he has disputed rather denied to have committed any default in making the rent and as per his written statement, he had been depositing the rent in court u/s. 19a of the Rent Act, thus is view of this pleading even after the determination of provisional rent under the trial Court's order, there was no automatic disposal of the suit either by way of any compromise or deposition of the arrears of rent rather as per trial court's order, itself, the matter was never come to an end, and the tenant had to continue with deposition of monthly rent by 15th of each succeeding due month of rent. Hence I find that there was misconception on the part of the tenant to have either thought of automatic disposal of the suit, itself, or having the litigation to come to an end by way of compromise obviously because of the pleas of the tenant, himself having taken in written statement by denial of default, as rightly pointed out by Mr. B. L. Mandhana for the landlord. ;