N.K.JAIN, J. - (1.) THIS revision is directed against the order of learned District Judge, Udaipur dated 28.11.1991 whereby he has affirmed the order of learned Civil Judge, Udaipur dated 24.11.1988 passed in civil suit No. 166/77, by which defence of the petitioner against eviction was struck out.
(2.) THE brief facts of the case are that the plaintiff non-petitioner filed a suit for ejectment against the petitioner from the suit shop on the ground of default. The suit was contested by the petitioner. The rent was determined under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act on 16.4.1983. The plaintiff non-petitioner moved an application on 25.5.1988 stating that as the defendant has not deposited any rent after the determination of provisional rent from July, 1987 to May, 1988 and his defence against eviction may be struck out. The defendant has admitted the fact in reply stating that he has deposited rent on 3.6.1988 and moved an application under Section 5 of the Limitation Act, on 14.7.1988 for condoning the delay in not depositing the rent monthwise. The learned trial Court after considering the same found that grounds taken by defendant are not sufficient to condone the delay and dismissed the application on 24.11.1988. The defendant preferred an appeal against that order but the same was dismissed on 28.11.1991. Hence, this revision. Mr. N.P. Gupta learned counsel for the petitioner has submitted that without determining provisional rent the Courts below have erred in not allowing the application under Section 5 and he has submitted that the Court should have condoned the delay on mere filing of the application under Section 5 unless it is mala fide and wilful default. He has also submitted that if rent is not deposited in time even the Court should see whether the defence is to be struck out not. he has placed reliance on S. Sundaram v. Kaushlya, AIR 1985 SC 582; Manmohan Kaur v. Suryakant, AIR 1989 SC 291 and Rakapali Raja Rama Rao v. Naragani Govinda Sehararao and others, AIR 1989 SC 2185.
(3.) MR . R. Mehta, learned counsel for the defendant non-petitioner has submitted that after determination of rent the defence can be struck off even when the same is not deposited within 15 days. He has submitted that a revision hearing No. 507/89sic) filed by the petitioner against the determination of provisional rent was dismissed by this Court on 6.3.1987. He has also submitted that the Courts below after considering material have rightly rejected the application under section and placed reliance on Hajarilal Sedhram v. Seth Suryakant Mahavir, 1986(1) WLN 27 and Manju Choudhary v. Dulal Kumar, AIR 1988 SC 602.;