- (1.) THE present petition is directed against the order dated 23.10.08 passed by the learned Addl. District & Sessions Judge,(Fast Tract) No.2, Sikar Camp Srimadhopur (hereinafter referred to as 'the appellate court') in Civil Misc. Appeal No. 24/04, whereby the appellate court has set aside the order dated 30.9.04 passed by the learned Civil Judge (Sr. Div.) Srimadhopur (hereinafter referred to as 'the trial court') in Civil Suit No. 7/02.
(2.) THE short facts giving rise to the present petition are that the respondent No.2 (original plaintiff) has filed the suit being No. 7/02 before the trial court seeking eviction of the petitioner-defendant from the suit premises and for recovery of the arrears of rent. In the said suit the trial court had decided the provisional rent of the rented shop at Rs. 825/- per month and had directed the petitioner to deposit the arrears of rent for the period from 1.1.99 to 31.10.03 giving 15 days time from the date of order and to pay the future rent on 10th of every month, vide the order dated1.11.03. Since the petitioner was unable to deposit the said arrears of rent as directed by the trial court within the time limit fixed by the court, the petitioner submitted an application seeking extension of time. THE trial court vide its order dated 11.11.03 allowed the said application granting extension of two months time to deposit the amount as ordered in the earlier order. THE petitioner thereafter deposited the amount of Rs. 39,501/-on 29.12.03, which amount included the arrears of rent for the period from 1.1.99 to 31.10.03 alongwith the amount of rent for the month November, 2003 and December, 2003. THE respondent-plaintiff thereafter submitted an application under Order 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the said Act') to strike off the defence of the defendant. THE said application came to be rejected by the trial court vide its order dated 30.9.04. Being aggrieved by the said order the respondent No.2 had preferred an appeal being No. 24/04 before the appellate court and the said appeal came to be allowed vide the impugned order dated 23.10.08. Being aggrieved by the said order passed by the appellate court, the petitioner-defendant has filed the present petition under Article 227 of the Constitution of India. It has been submitted by the learned counsel Mr. S.R. Saini, for the petitioner that the petitioner had deposited the entire arrears of rent including the rent for the months of November and December, 2003 totally amounting to Rs. 39.501/-, though the rent for the month of December, 2003 was due on 10.1.04. According to him the rent for the month of November, 2003 was due to be paid upto 10th December, 2003, however in view of the order dated 11.11.03 passed by the court, the petitioner had remained under the bonafide impression that he could pay the rent for November also within two months i.e. upto 1.1.2004. He further submitted that the trial court had rightly rejected the application of the respondent-plaintiff seeking to strike off the defence of the petitioner by holding that there was no malafide intention on the part of the petitioner in not depositing the rent for the month of November, 2003 within the time limit. However, the learned counsel for the respondents Mr. Satyendra Sharma has vehemently submitted that the provisions contained in Section 13(5) of the said Act are mandatory in nature and if the tenant i.e. the present petitioner failed to deposit the rent as directed by the court, his defence was liable to be struck off, which has been rightly done by the appellate court. He also submitted that the petitioner is in the habit of depositing the rent irregularly and not as per the directions given by the trial court. According to him the order passed by the appellate court being just and legal the present petition deserves to be dismissed. Having regard to the submissions made by the learned counsel for the parties and to the documents on record, more particularly the orders passed by the courts below, it transpires that the trial court in view of the application dated 11.11.03 given by the petitioner-defendant to extend the time limit to deposit the arrears of rent for the period of 1.1.99 to 31.10.03 had extended the time limit for two months i.e. upto 1.1.04, vide the order dated 11.11.03. Of course the period included in the said order was 1.1.99 to 31.10.03, however the said order having been passed on 11.11.03, the petitioner-defendant bonafidely believed that the said extension was also for the payment of rent for the month of November, 2003. Accordingly he not only deposited the entire amount of arrears for the period from 1.1.99 to 31.10.03 amounting to Rs. 37,851/- but also deposited the rent amount for the month of November,2003 and December, 2003 amounting to Rs. 1650/- on 29th December, 2003, though the rent amount for the month of December, 2003 was to be paid upto 10.1.04. Considering the said facts, the trial court held that there was no malafide intention of the petitioner-defendant in not depositing the rent for the month of November, 2003 upto 10.12.03, as he had already deposited the rent amount for the month of December, 2003 also which had not become due till 29.12.03. The appellate court, however, set aside the said order by holding that the petitioner had not deposited the rent amount for the month of November, 2003 as per the order passed by the trial court. The said order passed by the appellate court does not appear to be correct in the fact and circumstances of the case. Even if the provisions contained in Section 13(5) of the said case are considered as mandatory in nature, the same were rightly not invoked by the trial court considering the intention of the petitioner and considering the order passed by the trial court on 11.11.03. The order passed by the appellate court, therefore, being perverse, the same deserves to be set aside and the present petition deserves to be allowed. In that view of the matter, the order dated 23.10.08 passed by the appellate court in Appeal No. 24/04 is set aside and the order dated 30.9.04 passed by the trial court is confirmed. The petition stands allowed accordingly. However, it is directed that the petitioner shall deposit the amount of rent regularly as directed by the trial court. ;