DWARKA PRASAD, J. - (1.) THIS revision petition raises a short question as to whether the defence of the defendant tenant against eviction was wrongly struck off by the courts below.
(2.) THE facts which have led to the filing of the present revision petition may be briefly state: THE opposite party Madhu Sudan filed a suit for eviction against the petitioner Madan Mohan in respect of a shop situated in Kuchaman City. THE plaintiff also claimed recovery of arrears of rent to the extent of Rs. 468/-, at the rate of Rs. 13/- per month. THE suit was filed on two grounds, namely, that the defendant had committed defaults in payment of rent for a period of more than 6 months and had become defaulter within the meaning of Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act' ) and that the plaintiff had bona fide and reasonable personal necessity for the shop in dispute. On the application of the defendant, the trial court by its order dt. August 2, 1976 determined the amount of arrears of rent which was payable by the tenant and held that rent for 40 months from March 17, 1973 to July 16, 1976, at the rate of Rs. 13/- per month, in all Rs. . 515/-, together with interest thereon at the rare of 6% per annum was payable by the defendant tenant to the landlord plaintiff. THE trial court directed that the aforesaid amount should be paid or deposited by the defendant upto August 17, 1976. THE defendant paid a sum of Rs. 537. 57 p. to the plaintiff on August 17, 1976 in respect of arrears of rent upto July 16, 1976 and interest thereon, as directed by the trial court and a receipt evidencing the said payment was produced before the trial court. Thereafter on April 15, 1977, the plaintiff submitted an application under sub-section (5) of Section 13 stating that the defendant had failed to pay the rent month by month during the period after July 16, 1976 and as such his defence against eviction should be struck off. The defendant file a reply stating that he has continuously paid rent month by month and since no default has been committed by him in payment of rent, the defence could not be struck off. The trial court, by its order dated May 9, 1977 held that the defendant had deposited in the court on September 22,1976 rent for two months for the period from July 17, 1976 to September 16, 1976 by means of a tender and thereby the rent for the period from July 17, 1976 to August 16, 1976 was not paid or deposited within the period of 15 days of the succeeding month. It was also held that rent for the period from February 17, 1977 to March 16, 1977 was also not deposited by the tenant within the prescribed time, but the same was deposited on April 5, 1977. On the basis of the aforesaid defaults in payment of rent, month by month, during the pendency of the suit, the trial court held that the provisions of sub-section (4) of Section 13 were not complied with by the defendant-tenant and as such his defence against eviction was struck off. The defendant preferred an appeal before the learned District Judge, Merta, but the same was dismissed by the order dated April 10, 1980. In this revision petition, it was urged by the learned counsel for the petitioner that so far as the period from February 17, 1977 to March 16,1977 is concerned, the rent was deposited by the defendant-tenant on March 15, 1977 and as such the two courts below were not right in striking off the defence of the defendant-petitioner on that ground. I have gone through the record of the trial court and a receipt for the deposit of rent for the period from February 17, 1977 to March 16, 9177 on March 15, 1977 by means of tender was found at p. D36/1 in the record of the trial court. Thus, the learned counsel is right that the rent for the period from February 17, 1977 to March 16, 1977 was deposited by the tenant within time. The receipt regarding payment of rent made by the defendant-tenant on April 5, 1977 must necessarily relate to the subsequent period from March 17, 1977 to April 16, 1977. Learned counsel for the opposite party also could not raise any objection so far as this aspect of the matter is concerned. But the further question which arises in this revision petition is as to whether the defence to the defendant could still be struck off on the ground that the amount of rent for the period from July 17, 1976 to August 16, 1977 was neither paid nor deposited in the court within the prescribed time but was deposited by tender in the court on September 22, 1976. The original challan regarding deposit of Rs. 26/- by means of tender on September 22, 1976 is at page D 23/1 of the record of the trial court and it has been mentioned therein that the said amount of Rs. 26/- related to rent for two months, from July 17, 1976 to September 16, 1976. Thus, there could be no doubt that the rent for the period from July 17, 1976 to August 16, 1976 was deposited after the statutory period, prescribed in Section 13 (4) of the Act. Learned counsel for the petitioner made two submissions in this respect. His first contention was that the application which was submitted by the plaintiff for striking off the defence under Sec. 13 (5) of the Act, was absolutely vague and that no specific period was mentioned therein for which a default was alleged to have been committed by the defendant in payment of rent, during the pendency of the suit. There is no doubt that the application submitted by the plaintiff on April 15, 1977 was vague but when the matter was heard by the trial court, the period for which the default was alleged to have been committed by the defendant was specified and at that point of time the defendant clearly became aware about the period for which the plaintiff alleged that rent was neither paid nor deposited according to the provisions of sub-section (4) of Section 13 of the Act. The matter was again taken up in appeal and no such ground was urged either before the trial court or the appellate court that any prejudice was caused to the defendant on account of the vagueness of the application. It would have been much better if the application submitted by the plaintiff for striking off the defence would have contained the details regarding the precise period in respect of which the defendant was alleged to have committed defaults in payment of rent during the pendency of the suit. But even if such details were not furnished in the application filed by the plaintiff, yet the defendant could not be relieved of his liability for the said default after the details were brought to his notice in the trial court itself. The defendant tenant having become aware of the period for which the default was alleged, could not do anything to remedy the default. Thus, no prejudice appears to have been caused to the defendant on account of the vagueness of the application filed by the plaintiff.
(3.) IT was then argued by the learned counsel for the defendant petitioner that the trial court, by its order dated August 2, 1976 directed the defendant to deposit rent for the period from March 17, 1973 to July 16, 1976 by August 17, 1976 and that the defendant was misled by the fact that the total amount of arrears of rent together with interest thereon had been deposited by him and the defendant was under an impression that rent upto August 16, 1976 has been deposited by him. This contention cannot be accepted for the simple reason that the receipt which was given by the landlord on August 17, 1976 clearly stated that rent upto July 16, 1976 together with interest thereupon amounting to Rs. 47. 57, in all a sum of Rs 567. 57, was received by him from the defendant. This receipt was given on August 17, 1976, by the plaintiff to the defendant, who filed the same in the trial court. At that time the defendant must have been fully aware of the fact that he had paid rent to the plaintiff only upto July 16, 1976 and the rent for the subsequent period was yet to be paid to the plaintiff or deposited in the court Moreover, the tender for the period from July 17, 1976 to September 16, 1976 which is on the record of the trial court at page D 23/1 clearly shows that a sum of Rs. 26/- was sought to be deposited by the defendant on September 26, 1976 represented rent for the period of two months from July 17, 1976 upto September 16, 1975. Thus, there could be no misconception while making the aforesaid deposit of rent and the submission made by the learned counsel that the defendant was misled is merely an after thought and deserves to be rejected. Another argument which was vehemently put forward by the learned counsel for the defendant-petitioner was that the plaintiff had waived the default since he had submitted an application for withdrawal of the amount of rent relating to the period from July 17, 1976 to September 16, 1976. The plaintiff filed an application under Section 13 (5) of the Act on April 15, 1977 and the trial court passed its order striking off the defence of the defendant against eviction on May 9, 1977. Even upto that date the plaintiff had not moved any application for withdrawal of the amount of rent for the aforesaid period. The defendant thereafter preferred an appeal before the learned District Judge, as mentioned above, against the order striking off his defence and the said appeal was dismissed on April 10, 1980. Even until the dismissal of the appeal the plaintiff had not applied for withdrawal of the amount in question. It was subsequent thereto that an application for withdrawal of the amount was made by the plaintiff on September 26, 1980 after the defendant's appeal was dismissed by the learned District Judge. Thus, until the question of default was agitated and decided, the plaintiff had not even applied for withdrawal of the amount of rent and his subsequent application for withdrawal of the said amount cannot constitute a waiver. Moreover, it is undisputed that the amount of rent for the period from July 17, 1976 to August 16, 1976 has not been withdrawn by the plaintiff even upto this day. After the question about making of defaults in payment of rent during the pendency of the suit was determined by the trial court and the defence of the defendant against eviction was struck off under Sec. 13 (5) of the Act, the plaintiff was well within his rights to obtain the said amount of rent and there could be no waiver. As held by their Lordships of the Supreme Court in Dhirendra Nath vs. Sudhir Chandra (1), waiver is an intentional relinquishment of a known right and there was no intentional relinquishment by the plaintiff of his right in the present case. It is well settled that every litigant has a right to waive and agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. In Lachoo Mal vs. Radhey Shyam (2) their Lordships of the Supreme Court quoted with approval the following passage from the Halsbury's Laws of England, Volume 8 (Third Edition):- "as a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the Legislature has expressly provided that any such agreement shall be void. " ;