SINGHVI, J. - (1.) THIS second appeal of the tenant (appellant) arises out of a suit filed by the landlord (respondent) which had been decreed by the trial court and that decree has been upheld by the lower appellate court.
(2.) THE question which arises for determination in this appeal is, as to whether the landlord is bound to file a second suit for eviction of the tenant on the ground of default, after the tenant has taken benefit of Section 13a of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, in an earlier suit filed by the landlord for eviction of the the tenant on the ground specified in section 13 (1) (a) of 1950 Act, or as to whether the ground of second default can be considered by court on the basis of amended plaint in which the plaintiff landlord has raised the plea of second default. The brief facts of the case are that the landlord leased out the suit premises (a house) to the tenant on monthly rent of Rs. 140/ -. The tenant made a default in payment of rent for a period of more than six months, i. e. between 1. 2. 74 to 31. 10. 74. The landlord, therefore, filed a suit for rent and eviction. IN the original plaint dated, 5. 11. 74, the landlord based the suit for eviction on the ground of default as well as personal necessity. The tenant in his written statement denied the allegations of the landlord and stated that he had paid the rent upto February 1974 and that the landlord had not accepted the rent, thereafter, although, he had tendered the same to the landlord. He also pleaded that the suit had been filed because, the landlord wanted to enhance the rent of the tenanted premises. He claimed that the tenancy had not been terminated by a valid notice. He had made repairs of the tenanted premises and was entitled to' adjustment of a sum of Rs. 560/ -. On the pleadings of the parties, the learned trial court framed six issues. Subsequently, an additional issue about the comparative hardship was framed. During the pendency of the suit, an application was filed on behalf of the tenant under section 13a (b) of the Rajasthan Premises (Control of Rent and Eviction) Amendment ordinance, 1975, stating therein that he was prepared to deposit the arrears of rent with interest and costs and prayed for grant of time to deposit the amount. This application of the tenant was decided by the trial court on 7. 12. 75 itself and time was given to him upto 29. 1. 76 to deposit the arrears of rent with interest and costs amounting to Rs. 666. 10. On 29. 1. 76, learned trial Judge dismissed the suit of the plaintiff, in so far as it related to the ground of default, by extending benefit of Sec. 13a to the tenant. The trial court fixed the case for evidence of the parties on the remaining issues. An application dated, 3. 10. 80 was thereafter, filed on behalf of the landlord under Order VI Rule 17 read with Sec. 151 C. P. C. and an amendment was sought for introducing the ground of second default by alleging that during the pendency of the suit, the tenant has not made payment of rent after 1. 8. 77 and, had therefore, committed second default and the landlord was entitled to a decree of eviction on that ground. This application was opposed by the tenant. The amendment application filed by the landlord was allowed on 5. 2. 81 and the landlord (plaintiff) was allowed to add par-9 (A) in the plaint for raising ground of second default. An amended written statement was thereafter, filed by the tenant defendant. An additional issue on the ground of second default was framed by the trial court on 9. 7. 81. After considering the evidence of both the parties, the learned trial court decreed the suit of the landlord on the ground that the tenant committed default in payment of rent from September 1977 to November 1980. The trial court while deciding issue No. l held that the tenant did commit a default in payment of rent for more than six months, but, observed that on the basis of the provisions contained in the Ordinance of 1975 (Sec. 13a), the tenant had deposited the arrears of rent together with interest and costs and, therefore, on that ground no relief could be given to the plaintiff. The trial court decided the issue of reasonable and bonafide necessity against the plaintiff-landlord. However, on issue No. 8, which relates to the question of second default, the learned trial court accepted the evidence and plea of the plaintiff. On that premise decree the suit was decreed on 21. 5. 82. The tenant filed the appeal which has been dismissed by the learned Additional District Judge No. 4, Jaipur City, Jaipur, vide judgment dated, 27. 3. 89. Shri M. M. Ranjan, learned counsel for the appellant, forcefully argued that two courts below have committed a serious error of law in passing the decree in favour of the respondent. He argued that once the trial court had allowed the amendment application on 5. 2. 81 permitting the landlord to amend the plaint, Such amendment will relate back to the date of the suit. It cannot be said that a new suit came into existence merely by addition of a new ground for eviction. The suit continued to be the same and no decree for eviction could have been passed on the ground of second default, because it cannot be held that the tenant had availed the benefit under section 13 (6) or 13a of 1950 Act, because no finding has been recorded regarding the default in any previous suit. Placing reliance on the decision of Special Bench of Calcutta High Court in Jamuna Prasad vs. Kishori Lal (1), Shri Rajan argued that the ground of second default can be raised by the landlord for seeking eviction of the tenant only by filing a separate suit and it is not permissible for the Court to pass a decree of eviction on the ground of second default in a pending suit.
(3.) SHRI S. K. Keshote, learned counsel for the respondent, on the other hand, argued that once the tenant had made an application under section 13a (6) the Court has to pass an appropriate order for deposit of the arrears of rent together with interest and costs, no decree can be passed for eviction of the tenant, once the tenant takes deposit in pursuance of the order passed by the court. Once the tenant avails the benefit of Section 13a and prevents passing of a decree of eviction, he cannot claim benefit after committing second default. SHRI Keshote argued that the nature of the suit for eviction remains un altered even after amendment of the plaint and it was perfectly justified for the courts below to pass the decree of eviction on the ground of second default. The facts which have come on record unmistakably show that the landlord filed the suit on 6. 11. 74 for eviction on various grounds including the ground of default. During the pendency of the suit Rajasthan Premises (Control of Rent and Eviction) Amendment Ordinance, 1975 (Rajasthan Ordinance No. 26 of 1975) was promulgated on 29. 9. 75 by way of publication in the gazette of that date. The tenant moved an application under section 13a (b) and the Court passed an order on 3. 12. 75 directing that a sum of Rs. 666. 10 be deposited by 29. 1. 76. The tenant deposited the amount. The trial court extended the benefit of Section 13a to him and the suit of the landlord was dismissed, in so far as it related to the question of default. Learned trial Court made the following order on 29. 1. 76. ...[VERNACULAR TEXT OMITTED]...The tenant again committed default in payment of rent from 1st September 1977. The landlord, thereafter, moved an application for amendment of the plaint in order to raise the ground of second default. The trial court accepted the amendment application vide its order dated, 5. 2. 81. The learned trial court while taking note of the fact that the defendant appellant had already been given the benefit of the provisions contained in Section 13a (b) of 1950 Act held that there was no bar against the raising of the plea of second default in the same suit and held that the tenant had failed to deposit the rent for 39 months. He did not comply with the provisions of Section 19a; Since he had committed default for more than six months, the plaintiff was entitled to a decree of eviction. The learned lower appellate court considered the plea of the appellant that amendment application has wrongly been accepted and that the ground of second default cannot be raised in the same suit, and held that after passing of the order dated, 29. 1. 76, by which the appellant was extended benefit of Sec. 13a, the suit was not being continued on the ground of default. The ground of second default was added by way of amendment, once this amendment is allowed, it will be treated at par with the second suit and, there was every-justification for passing a decree on the ground of second default. ;