N.M.KASLIWAL,J. - (1.) THIS is a defendant's revision against the order of learned Additional District Judge No. 1, Alwar dated 9.12.1980 upholding the order of Additional Munsif-cum-Judicial Magistrate, Alwar dated 3.10.1979, whereby defence of the defendant-petitioner was struck off.
(2.) BRIEF facts leading to this revision are that the plaintiff non-petitioner filed a suit for eviction of two shops situated in Mohalla Shivpura, Alwar against the petitioner on 4.10.1975. According to the plaintiff, one shop was let out to the petitioner on 19.2.1967 at Rs. 30/- p.m. and another shop was let out at Rs. 15/- p.m. on 1.5.1967. The suit for eviction was based on the ground of reasonable and bonafide necessity of the plaintiff. The defendant filed his written statement on 24.11.1975 and took the plea, inter alia, that one shop was taken on rent on 19.2.1967 the tenancy of that shop also began from the date. As regards the other shop, it was admitted that the tenancy began from 1.5.1967. It was also pleaded that the plaintiff wanted to enhance the rent and the suit was filed with an ulterior motive and the plaintiff had no reasonable and bonafide requirement of the shop. It was also pleaded that both the shops were separate and were taken on rent separately by executing two separate rent notes and as such one suit could not be filed for eviction of both the shops. On the aforesaid pleadings of the parties, the trial Court framed the following issues on 17.1.1976 :- (a) Whether the shops are required reasonably and bonafidely by the plaintiff for his own use and occupation ? (b) Whether the requirement of defendant is greater for the suit shops than that of the plaintiff and passing of an eviction decree will cause greater hardship to the defendant ? (c) Whether the tenancy has been terminated by a valid notice ? (d) Whether single suit for the two shops does not lie ? (e) Relies ? It may also be mentioned at this stage that though the suit was not initially based for eviction on default in payment of rent, but the trial Court on 19.12.1975 determined the arrears of rent upto 31.12.1975 to the tune of Rs. 225/- as arrears of rent and Rs. 3/- by way of interest, in total Rs. 228/- and directed the defendant to deposit the same within 30 days of the order. The plaintiff non-petitioner then moved an application on 28.10.1978 before the trial Court for amendment of the plaint seeking to add two new grounds for the eviction of the disputed shops on the basis of default in payment of rent and sub-letting, assignmentor parting with the possession of the shops. The defendant petitioner contested the aforesaid application for amendment, but the same was allowed by the trial Court. The plaintiff non-petitioner thus filed an amended plaint on 30.1.1979 and inserting the additional grounds of default in payment of rent and sub-letting. The petitioner then submitted an amended written statement on 14.2.1979 and took the plea that he had already deposited the rent upto 31.3.1979. It was also pleaded that the defendant petitioner was himself in possession of the disputed shops and had not sublet, assigned or parted with the shops. On the amended pleading of the parties, the trial Court framed the following two additional issues on 24.3.1979 :- Thereafter on 26.4.1979 the plaintiff moved an application before the trial Court for striking out the defence of the petitioner against eviction on the ground that the petitioner had not deposited the rent in time and had also not deposited the rent from the month of January, 1978. The defendant-petitioner replied to the aforesaid application on 21.1.1979 and took the plea that he had deposited rent in the Court upto June, 1979, as such no rent was due against him. However, by way of abundant caution the defendant also moved an application before the trial Court on 2.7.1979 for seeking permission of the trial Court to deposit the rent for 3 months i.e. April, May and June, 1979 on the ground that he had fallen ill and in the month of June, the Court was closed for summer vacation. The learned trial Court found that the rents for the months of April, May and June, 1979 were deposited on 2.7.1979 and as the rent for the month of April, 1979 ought to have been deposited latest by 15th of May, 1979 and since that has not been done, so the delay in depositing the rent cannot be condoned and the defence of the petitioner was liable to be struck off. The appeal filed by the petitioner was also dismissed by the learned Additional District Judge No. 1, Alwar.
(3.) IT was contended by the learned counsel for the petitioner that originally the suit was not based on default in payment of rent, the order passed by the trial Court on 19.12.1975 determining the amount of Rs. 228/- was without jurisdiction, illegal and non est. According to the plaintiff himself, he took the plea of default in payment of rent by seeking amendment in the plaint, which was allowed by the trial Court on 30.1.1979. Thereafter, there was no order of the trial Court determining the rent under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Premises Act). It was thus contended that there was no question of striking off the defence against Eviction when the rent was not determined under Section 13(3) of the premises Act and the plaintiff cannot take any benefit of an order passed without jurisdiction on 19.12.1975. It was the months of April, May and June, 1979 on 2.7.1979 out of abundant caution and the amount was also deposited on 2.7.1979. Both the Courts below have not considered the ground of illness of the petitioner, otherwise the petitioner was entitled to deposit the rents of 3 months on 2.7.1979. As regards the month of April 79, it was contended that the tenancy of one shop began from 19th of each month and its rent fell due on 18th May and could have been paid by 3rd of June and as the trial Court was closed for summer vacations on 3rd June, the rent could have been paid on 2nd day of July, 1979, which was the opening day of the Court after summer vacations.;