- (1.) This second appeal has been filed by the appellant-defendant against the judgment and decree dated 31-10-1987 passed by the learned Addl. District Judge, Bikaner in Civil Appeal No. 58/86 by which he allowed the appeal of the plaintiff and decreed the suit of the plaintiff for eviction of the defendant-appellant from the suit premises on the ground of default as envisaged under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as "the Rent Control Act") and reversed and set aside the judgment and decree dated 20-1-1983 passed by the learned Addl. Munsiff, Bikaner in Civil suit No. 54/78 by which the learned Addl. Munsiff dismissed the suit of the plaintiff holding the defendant-appellant as first defaulter. Note :- It may stated here that the suit premises were purchased by one Manoharlal from the original-plaintiff-respondent Hari Narayan and, therefore, he moved an application on 2-9-1994 for impleading him as party respondent in place of original plaintiff Hari Narayan and that application was allowed by this Court vide order dated 1-12-1995 and Manoharlal was impleaded as respondent in this second appeal in place of Hari Narayan.
(2.) It arises in the following circumstances:- On 30-5-1975, the original plaintiff - Hari Narayan filed a suit in the Court of Munsiff, Bikaner with the averments that the property mentioned in para No.1 of the plaint was given on rent to the defendant-appellant and monthly rent was Rs.25.00 and since May, 1968, the rent was reduced from Rs.25.00 p.m. to Rs.20.00 p.m., but in Rs. 20.00, Rs. 1.50 was further added as house tax. It was further averred in the plaint that the defendant-appellant had paid rent up to January, 1965 and, thereafter, he committed default in making payment of rent. A notice terminating the tenancy was given by the plaintiff to the defendant -appellant. In para No.5 of the plaint, it was averred by the plaintiff that though rent since January, 1965 became due to the tune of Rs. 3055.84, but since this amount included the time barred rent, therefore, the rent to the tune of Rs.774.00 for a period of three years was claimed by the plaintiff and the suit was based merely on the ground of default as envisaged under S. 13(1)(a) of the Rent Control Act and eviction of the defendant-appellant was sought on that ground alone. It may be stated here that on first date of hearing i.e. on 1-9-1975, the defendant-appellant made an application under S. 13(4) of the Rent Control Act as was applicable on that day and requested the Court that the amount of rent be determined as he was ready to deposit the amount under protest, as claimed in the plaint. On that application, the Court passed the following order:- "The tenant may deposit the amount as per provisions of S. 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. It hardly requires any order from the Court or assent of the landlord. The rent for each succeeding month is also payable under the directions of the statute. The rent is stated to be Rs. 21.50 p.m." After that, the defendant-appellant deposited that amount of rent which was claimed by the plaintiff in his plaint, in the following manner :- Rs. 854/- as rent for 40 months up to 31-8-1975 Rs. 82/- as interest Rs. 8/- for notice __________ Rs. 944/- __________ The defendant-appellant filed his written statement on 10-3-1977 in which he admitted that he was tenant of the plaintiff, but according to the defendant-appellant, the rent was Rs. 15.00 per month and it was never increased or decreased as alleged by the original-plaintiff-respondent. The defendant-appellant further pleaded that under protest on the first date of hearing, he had already deposited the amount of rent at the rate of Rs.21.50 p.m. as claimed by the original plaintiff-respondent himself. Hence, the suit be dismissed. On the pleadings of the parties, on 21-4-1977, the following issues were framed :- (Varnacular matter omitted - Ed.) Thereafter, on 17-9-1981, one more issue was added and the same reads as follows :- (Varnacular matter omitted - Ed.) After recording the evidence, the learned Addl. Munsiff, Bikaner through his judgment and decree dated 20-1-1983 decided the issues in the following manner :- Issue No.1 That S. 13A was added through Ordinance 26 and it may be stated here that amendment came into force with effect from 29th Sept. 1975 and there is no dispute on the point that no application was filed by the defendant-appellant under S. 13A of the amended Rent Control Act and that if any application was to be filed, that was to be filed within one month from 29-9-1975. The learned Addl. Munsiff came to the conclusion that the defendant-appellant was entitled to the benefit of the provisions prior to that Ordinance which came into force with effect from 29th Sept. 1975 and thus, though the defendant-appellant had not filed any application under S. 13A of the Rent Control Act and further since he had deposited the rent as claimed by the original-plaintiff-respondent in his plaint on first date of hearing, therefore, he could not be said to be defaulter and he was entitled to be declared as first defaulter and no decree of eviction could be passed against him on ground of default as envisaged under Section 13(1)(a) of the Rent Control Act. Thus, issue No.1 was decided accordingly and the suit of the plaintiff was dismissed after declaring the defendant-appellant as first defaulter. For rest issues, though he decided holding that there was no necessity for those issues. Aggrieved from the judgment and decree dated 20-1-1983 passed by the learned Addl. Munsiff, Bikaner, the original plaintiff-respondent preferred first appeal before the learned District Judge, Bikaner, which was transferred to the learned Addl. District Judge, Bikaner and the learned Addl. District Judge, Bikaner through his judgment and decree dated 31-10-1987 allowed the appeal of the plaintiff and decreed the suit of the plaintiff for eviction of the defendant-appellant from the suit premises on the ground of default as envisaged under Section 13(1)(a) of the Rent Control Act and reversed and set aside the judgment and decree dated 20-1-1983 passed by the learned Addl. Munsiff, Bikaner, holding inter-alia :- (1) That looking to the facts that the suit was filed on 30-5-1975 and first date of hearing was 1-9-1975 and on that day, the defendant-appellant deposited all the arrears of rent as claimed by the plaintiff in his his plaint and amended Ordinance 26 came into force with effect from 29th Sept. 1975 and thus, the rights which accrued to any party before issuing that Ordinance are saved and therefore, if the defendant appellant had deposited rent under S. 13(4) (old) of the Rent Control Act, the amended S. 13A of the Rent Control Act would have no effect on that deposit and in these circumstances, the learned Addl. District Judge came to the same conclusion as recorded by the learned Addl. Munsiff, Bikaner in his judgment and decree dated 20-1-1983. (2) That before the learned Addl. District Judge, it was argued on behalf of the original plaintiff-respondent that while depositing the rent under S. 13(4) (old) of the Rent Control Act, it was bounden duty of the defendant-appellant to deposit all arrears of rent including the time barred rent and that argument was accepted by the learned Addl. District Judge and he came to the conclusion that on first date of hearing, the defendant appellant was bound to deposit all arrears of rent including the time barred rent and since time barred rent was not deposited by the appellant-defendant on first date of hearing, therefore, he committed default in making payment of rent on first date of hearing. (3) That the learned Addl. District Judge further came to the conclusion that while depositing the rent under S. 13(4) (old) of the Rent Control Act on the first date of hearing i.e. on 1-9-1975, the appellant defendant deposited Rs.854.00 as rent for 40 months up to 31-8-1975, but actually he should have deposited Rs.860.00 and thus, the deposited Rs. 6.00 less and furthermore, the amount of interest was Rs.87.00 but the appellant defendant deposited Rs.82.00 and thus, he also deposited Rs.5.00 less towards interest and thus, in total, the defendant appellant deposited Rs.11.00 less. Because of non-deposit of Rs. 11.00, the learned Addl. District Judge came to the conclusion that the appellant-defendant had not complied with the provisions of S. 13(4) (old) of the Rent Control Act and thus, he was not entitled for benefit of first defaulter but on the contrary, he had committed default in making payment of rent by depositing Rs. 11.00 less. (4) That rent for the month of May, 1977 should have been deposited by the defendant appellant as soon as the Court opened after summer vacation i.e. on 27/06/1977, but he deposited that rent on 1/07/1977 and, therefore, by doing so, he has not paid the rent regularly and thus, from this point of view also, the learned Addl. District Judge came to the conclusion that the appellant-defendant committed default in making payment of rent after first date of hearing and he has further come to the conclusion that because of this fact, the defence of the defendant-appellant against eviction should be struck-off. In these circumstances, the learned Addl. District Judge came to the conclusion that since on the first date of hearing due rent was not deposited by the appellant-defendant nor rent for the month of May, 1977 was deposited in time, therefore, the appellant-defendant had committed default in making payment of rent and thus, on that ground alone, he was liable to be evicted from the suit premises and thus, the learned Addl. District Judge decreed the suit of the plaintiff for eviction of the defendant-appellant on the ground of default as envisaged under S. 13(1)(a) of the Rent control Act. He granted two months' time to the defendant-appellant for vacating the suit premises. Aggrieved from the said judgment and decree dated 31-10-1987 passed by the learned Addl. District Judge, Bikaner, this second appeal has been filed by the defendant-appellant.
(3.) This Court while admitting this second appeal on 10-9-1988 framed the following substantial question of law :- "That after judgment given by the Supreme Court in AIR 1987 SC 1010, the decision given by appellate Court is correct or not.";