B.S.CHAUHAN, J. - (1.) THIS revision has been filed against the impugned order dated 16.12.1993 passed by the first appellate court dismissing the appeal filed by the defendant-petitioner against the order dated 24.4.92 passed by the trial Court striking out the defence of the defendant-petitioner for default in payment of rent within the period prescribed by the law.
(2.) THE facts and circumstances giving rise to this case are that suit No. 7/81 was filed the 1981 by the plaintiff/non-petitioner for eviction of the defendant-petitioner on various grounds under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, "the Act"). Vide order dated 9.5.81, the trial court determined the interim rent in view of the provisions of Section 13(3) of the Act. The trial proceeded and both the parties led evidence. When the matter came up for final arguments on 23.1.92, plaintiff/non-petitioner filed an application under Section 13(5) of the Act contending that defendant-petitioner committed default in depositting the rent, as mandatorily required under Section 13(4) of the Act and deposited the same at a belated stage on several occasions, his defence was liable to be struck off. Defendant-petitioner took the plea that as the incident related to a remote period; delay caused in depositing the money was hardly of a few days and that was not intentional. Moreso, as the rental amount so lately deposited by him had been withdrawn by the plaintiff/non-petitioner, he waived the right to raise the issue of striking out the defence and, therefore, the application was liable to be rejected. The trial court, after hearing both the parties, allowed the application and struck off the defence vide order dated 24.4.92. being aggrieved and dissatisfied, the defendant-petitioner filed an appeal which has been dismissed vide order dated 16.12.93. Hence this revision. Mr. Lalit Kawadia, learned counsel for the petitioner, has submitted that the delay, if any, in depositing the rent in time occurred from 1988 to 1990, i.e. in remote past. Subsequent thereto, the defendant-petitioner had been allowed to lead evidence and when the matter was fixed, after expiry of two years, for final hearing, the application under Section 13(5) of the Act to strike off the defence was not maintainable. Once the landlord had withdrawn the amount deposited by the defendant-petitioner, he had waived the right to raise the issue and, thus, there was no cause of action surviving on that date. Even if there was any delay, as the defendant-petitioner had moved an application under Section 5 of the Limitation Act. 1963 (for short, "the Act, 1963") on 10.4.92 and the Court had the power to condone the delay and the delay crept therein was not intentional, the courts below have committed material irregularity in exercise of jurisdiction and allowed the application under Section 13(5) of the Act. On the other hand, Mr. D.R. Bhandari, learned counsel appearing for the plaintiff/non-petitioner, has vehemently submitted that the provisions of Section 13(4) of the Act are mandatory in nature and require strict adherence and non-observance of the same, even once, is enough to strike off the defence. As it is the statutory requirement, the question of acquiescence, estoppel or waiver by the plaintiff/non-petitioner did not arise and the case does not present special features to warrant exercise of revisional jurisdiction by this Court. I have considered the rival submissions made by the learned counsel for the parties and perused the record.
(3.) SECTION 13(4) of the Act provides that after determination of interim rent, the arrears shall be deposited within the stipulated period and further "the tenant shall also continue to deposit in court or pay to the landlord month by month the monthly rent and subsequent to the period upto which determination has been made, by 15th of each succeeding month or within such further time not exceeding 15 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)." Sub-section (5) of Section 13 further reads as under :- "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." ;