- (1.) THIS Civil Misc. Appeal under Section 22 of the Rajasthan Premises (Control of Rent & Eviction) Act 1950 (in short `the Act') has been preferred by defendant (appellant herein) against the order dated 7. 4. 1999 of the learned Additional District Judge No. 6 Jaipur City, Jaipur, Striking out her defence against eviction under Section 13 (5) of the Act.
(2.) BRIEFLY stated, the relevant facts are that plaintiff instituted a civil suit in the court below against defendant for recovery of arrears of rent and eviction on the ground of default in payment of rent, personal bonafide necessity, nuisance and sub letting with the averment that the property described in para No. 1 of the plaint was let-out to her w. e. f. 1. 5. 1990 on a monthly rent of Rs. 3200/- per month which was enhanced to Rs. 3680/- per month from 1. 5. 1993. She failed to make payment of rent w. e. f. 1. 11. 1994 to 30. 4. 1995. In her written statement she admitted the tenancy. But pleaded that the rent was deposited through cheques and the details of such deposit were also given therein. She also admitted that rent from July, 1995 to October 1995 was due, but pleaded that a sum of Rs. 9600/- was deposited by her with the plaintiff as security which should have been adjusted against the outstanding rent. As the suit was filed on the ground of default under Section 13 (1) (a) of the Act, the trial court on 23. 5. 96 determined the provisional rent after hearing the parties and on basis of materials on record. The provisional rent so determined was deposited by her but she failed to deposit rent falling due form month to month within the prescribed time. So the plaintiff moved an application under Section 13 (5) of the Act for striking out her defence against eviction. The appellant defendant resisted the application by filling reply thereto and giving details of the payment of rent. She also pleaded that the rent was deposited through cheques and she was not responsible for the late collection of cheques by the plaintiff's Bank. She further stated that her Accountant Bhagchand was responsible for late payment of rent inspite of her clear instructions to deposit the rent in time. She, therefore, prayed that the delay in the deposit of rent may be condoned. According to her, amount of Rs. 9600/- deposited by her with the plaintiff as security may be adjusted against the outstanding rent and on doing so there would be no default in the payment of rent by her. The trial court after hearing the learned counsel for the parties on this application and considering in detail the submission made at the bar held that the appellant defendant and committed default in the payment of rent for the month of April, May and August 1997 which could not be condoned. The application of the plaintiff was therefore, allowed and her defence against eviction was struck out vide impugned order. Mr. A. K. Bhandari, learned counsel for the appellant has strenuously argued that the trial court has not considered the matter in the right perspective. In order to strike out defence against eviction, the conduct of the defendant must be contumacious which means willfull, stubborn and disobedient. According to him, the delay in payment of rent for most of the months was for a period of less than 15 days which could be and ought to have been condoned. He has also contended that if the security amount deposited with the plaintiff is adjusted against the rent due for a months no default survives because the rent deposited late may be treated to be advance rent for the subsequent months Relying upon Roop Narain vs. Murti Mandir Sita Ramji (1), J. K. Motors & Ors. vs. Bhagwati Narain (2) and Jamna Lal vs. Kanhaiya Lal (3), he has contended that delay in depositing of rent should be condoned liberally. According to him, rent for the months of April, 1997 a. 08. 1997 was deposited with the delay of only 6 days and 1 day respectively. Which could be and ought to have been condoned. In this regard, he has argued on the strength of Jamna Lal vs. Kanhaiya Lal (supra) that no application for condonation of delay was necessary. The learned counsel has then argued that the security amount of Rs. 9600/- which was lying deposited with the plaintiff could be and ought to have been adjusted against the rent for the month of May 1997. In this regard, he has placed reliance upon Mohammed Salimuddin vs. Misri Lal. & Ors. (4), M/s. Sarwan Kumar Onkar Nath vs. Subhas Kumar Agarwalla (5), K. Narasimaha Rao vs. T. M. Nasimuddin Ahmed (6), Modern Hotel, Gudur represented by M. N. Narayan vs. K. Radhakrishaiah & Ors. In the end he has argued that even if the delay in deposit of rent is not condoned, it is not necessary to strike out the defence of the tenant against eviction as held in Jagan Nath vs. Heera Chand The delay could be condoned on the basis of the reply of the application under Section 13 (5) of the Act. However the appellant has filed an application for condonation of delay before this Court. Mr. R. K. Agarwal, learned counsel for the respondent- plaintiff has oppose the contentions of the learned counsel for the appellant with equal vehemence. He has placed on record a certified copy of the order dated 23. 5. 1996 and a copy f the rent note executed between the parties. He has drawn my attention to the condition agreed between the parties in the rent note where-under the amount of Rs. 9600/- was to be kept deposited with the plaintiff as security which was to be refunded at the time of handing over of the possession of the suit premises. It was further specifically provided that the aforesaid amount was not to be adjusted against the rent falling due during the tenancy. According to him, the aforesaid amount was not a fine, premium of advance, but was a security for the proper maintenance of the rented premises. He has further argued that the prayer for adjustment of aforesaid security amount against the outstanding rent was rejected by the trial court taking into consideration the condition mentioned in the rent note. The said finding of the court below was not challenged and has therefore, become final between the parties. It therefore, operates as resjudicata as has been held in the case of Satyadhyan vs. Smt. Deorajin Debi
(3.) LEARNED counsel for the respondent has then argued that the Hon'ble Apex court Court has considered the cases reported in Mohammed Salimuddin vs. Misri Lal (supra), M/s. Sarwan Kumar Onkar Nath vs. Subhas Kumar Agarwalla (supra), in the case of Bhoja @ Bhoja Ram Gupta vs. Ramesh Agarwala & Others (10), and has held that there could not be any automatic adjustment. In the case Jagan Nath vs. Heera Chand (supra), there was solitary default whereas in the instant case, the defendant has committed regular defaults in the payment of monthly rent after provisional determination of rent. The application for condonation of delay filed in this Court has also been strongly opposed by filing a reply there to. It has been argued that the defendant being the master of her Accountant Bhagchand could not be permitted to say that she was not responsible for the late payment of the rent. it has also been argued that delay of 1 year 2 months and 2 days in the deposit of rent for the month of May, 1997 could not be condoned under Section 5 of the Limitation Act 1963 as has been held by the Hon'ble Apex Court in Naziruddin & Ors. vs. Sita Ram He has, therefore, urged that this application for condonation of delay in depositing the rent for the month of April 97, May 97 & August 97 may be dismissed. I have given may anxious and thoughtful consideration to the rival submissions made at the bar and have also gone through record as well as cited authorities. It cannot be disputed and is rather an admitted fact that the appellant has not deposited the rent for the months of April 97 May 1997 and August 1997 within the prescribed time. The present is not a case of stray default in timely payment of rent, and her conduct with regard to deposit of rent has been contumacious. ;