- (1.) THIS revision is directed against the order of learned District Judge, Udaipur dated 28. 11. 91 whereby he has affirmed the order of learned Civil Judge, Udaipur dt. 24. 11. 1988 passed in civil suit no 165/77, 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 u/s. 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act on 16. 4. 83. 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 u/s. 5 of the Limitation Act, on 14. 7. 88 for condoning the delay in not depositing the rent month wise. THE learned trial court after considering the same found that grounds taken by the defendant are not sufficient to condone the delay and dismissed the application on 24. 11. 88. THE defendant preferred an appeal against that order but the same was dismissed on 28. 11. 91. 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 u/s. 5 and he has submitted that the court should have condoned the delay on mere filing of the application u/s. 5 unless it is malafide 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 struck out or not. He has placed reliance on S. Sundaram Vs. Kaushlya (1) Manmohan Kaur vs. Suryakant (2) and Rakapali Raja Ram Rao vs. Naragini Govinda Sehararao & Ors. (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 bearing no. 507/84 filed by the petitioner against the determination of provisional rent was dismissed by this Court on 6. 3. 87. He has also submitted that the courts below after considering material have rightly rejected the application u/s. 5 and placed reliance on Hajarilal Sedhram vs. Seth Suryakant Mahavir (4) and Manju Choudhary vs. Daulal Kumar (5 ). I have heard learned counsel for the parties and perused the impugned orders as well as the case law. It is no doubt true that tenant shall deposit rent after determination within 15 days or such further time not exceeding three months, in view of the provisions of Section 13 (4) of the Act. However, as provisions of Section 13 (5) have been held to be directory and not mandatory and Section 5 of the Limitation Act, is applicable in view of Vishnudas vs. Shavitridevi (6) provided the tenant moves an application u/s. 5 of the Limitation Act, and made out a good, sufficient and reasonable cause for not depositing the rent in time, the application should be considered liberally to construe whether delay was properly explained or not. The condition precedent is that the tenant has to make out a case for exercising discretion of jurisdiction vested in the court under section 5 of the Limitation Act. In such situation, the court while considering the application u/s. 5 of the Limitation Act can condone the delay in the exercise of its discretion but at the same time if the delay is not condoned then this Court in revisional jurisdiction should not interfere in the discretion exercised unless it is arbitrary or capricious. In the instant case rent was determined on 16. 4. 83 against which a revision was also filed but the same was dismissed and admittedly as stated above the petitioner has not deposited the rent from July, 1987 to May, 1988 and the explanation furnished by the petitioner In the reply before the trial court that he was ill. He was dependent on his son and munim who used to deposit the amount but actually they did not deposit the same in time, was not found to be plausible rather learned trial court found that the petitioner was negligent in depositing the rent month-wise as during the period, the case was listed for 14 times and rejected the application, which was affirmed by the learned Appellate Court. Therefore, the order not extending time is neither illegal nor perverse. Mr. Gupta has submitted that by mere filing of application the defendant has got right to get the delay condoned. Their Lordships of the Supreme Court in S. Sundaram vs. Kaushlya (supra) were considering provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and in Rakapalli Raja Rama vs. Naragani Govinda (Supra) were considering provisions of A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960, in both the said Acts, the expression is wilful default whereas in Rajasthan Premises (Control of Rent and Eviction) Act, 1950, there is no such provision. Therefore, the finding of wilful default is not necessary and the argument of Mr. Gupta has no substance. The cases cited are not applicable and helpful to the petitioner. In view of this , I do not find that the discretion has not been exercised judiciously or in arbitrary manner, so as to call for any interference in the revisional jurisdiction and no interference is called for.
(3.) IN the result, this revision has no force, so it is hereby dismissed. .;