BAPNA, J. - (1.) THIS is a revision against a decree of the Judge, Small Cause Court, Jaipur, dated 30th April, 1952.
(2.) THE respondent gave on lease certain house property to the petitioner on Baisakh Sudi 2, Svt, 2003 (3rd May, 1946) on a monthly rent of Rs. 2/8/-per mensem. On the 28th of August, 1951, the respondent gave notice to the petitioner that he should vacate the house within one month, failing which damages for use and occupation at the rate of Rs. 2/- per day would be charged. He filed a suit on the 11th of December, 1951, for recovery of Rs. 30/- by way of rent from Asoj Sudi 2, Svt. 2007 to Asoj Sudi 1, Svt. 2008, and thereafter damages at Re. 1 /- per day till the date of the institution of the suit. THE defendant pleaded that he was ever ready and wiling to pay the rent and had even transmitted the rent by money orders, but the plaintiff did not accept it, and that there was no cause of action for the suit. THE learned Small Cause Court Judge, after evidence, decreed the suit. Hence this revision. The learned Judge proceeded on the view taken in Hanuman Bux vs. Dev Dutt (1) (AIR 1952 Raj 111 ). This decision has, however, been over ruled by Hans Raj vs. Gappulal and another (2) (AIR 1953 Raj. 88=1953 RLW 419. ). Under sec. 5 of the Rajasthan Premises (Control of Rent and Eviction) Act (XVII of 1950), the rent payable for any premises situated within the areas to which the Act extended for the time being, is stated to be subject to the other provisions of the Act, such as may be agreed upon between the landlord and the tenant. In this case, the rent agreed upon was Rs. 2/8/- per mensem. Sec. 13 of the Act provides for the possession of a tenant to continue even after the termination of the tenancy so long as the tenant is ready and willing to pay the rent to the full extent allowable by the Act, unless certain conditions exist, which are mentioned in clauses (a) to (k) of that section, None of these conditions have been alleged by the landlord in this case, and, therefore, the tenant was entitled to continue as a tenant under sec. 13 and to pay rent as provided by sec. 5 of the Act, unless it could be revised according to the provisions of the Act. The present device to charge damages for use and occupation, if permitted, would defeat the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, as obviously the landlord by being permitted to charge Rs. 30/- per month as damages instead of Rs. 2/8/- per mensem as rent would her more than what he could expect by any enhancement of rent or by taking any other tenant after evicting the present incumbent. The trial court has not taken into consideration the effect of the provisions of sec. 5 read with sec. 13 of the Act, and the decree passed by the lower court cannot be supported. The plaintiff could only be entitled to the rent as stipulated, which, from Asoj Sudi 2, Svt. 2007, to Mangsir Sudi 12, Svt. 2008, comes to Rs. 35/13/4. The defendant has, however, produced two money order receipts, one for Rs. 22/8/-, which was despatched by him on the 5th of September, 1951, and refused by the plaintiff, and another for Rs. 5/-despatched on 4th December, 1950, and received by Bhanwarlal on behalf of the plaintiff. The plaintiff has, however, denied having received this amount, and the tenant has not been able to prove that Bhanwarlal was authorised to receive on behalf of the plaintiff. The plaintiff is, therefore, entitled to receive Rs. 35/13/4, but he will not be entitled to any costs. The revision is therefore, allowed, the decree of the lower court is modified, an 1 reduced from Rs. 100/- to Rs. 35/13/4. The plaintiff will not get his costs in either court. The defendant will get his costs in this Court. .;