KAN SINGH, J. - (1.) THIS is a defendant's revision application and arises out of an order of the Munsif, Jaipur West dated 22-8-72 striking out the defence of the defendant in a suit for eviction from certain premises.
(2.) THE suit premises are a portion of a house known as Khinduka Bhawan which comprised of two portions on the ground floor. One portion was taken by the defendant-appellant on monthly rent of Rs. 200/- by a registered lease deed dated 1-8-63. Subsequently on 1-6-66 the other portion was taken on rent by the defendant at Rs. 130 per month. This was exclusive of house tax, water and electricity charges. THE plaintiff filed a suit for arrears of rent and eviction in respect of the portion taken on rent on 1-8-63 in the court of the learned Munsif on 26-5-71. Subsequently on 6-7-72 the present suit was filed for the second portion. It was averred that the defendant had paid the rent upto 31-7-69, but had thereafter made an application under sec. 19a of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the "act", with a view to harassing the landlord and then started depositing the rent in court. THE plaintiff gave a notice to the defendant on 11-3-72 determining the tenancy from 31-3-72. THE plaintiff, inter alia, averred that the rent for the period from 1-8-71 to 31-3-72 was in arrears. The defendant contested the suit. He denied that the rent was in arrears. He pleaded that the tenancy was an integrated one in respect of both the portions of the house and after the filing of the suit regarding the first parties on 28 5-71 the rent was being deposited in court for both the portions in the first suit No. 413 of 1971. The defendant, therefore, claimed that the plaintiff was not entitled to evict the defendant on the ground of default. The defendant made an application on 12-4-72 u/s. 13 (5) of the Act raising a dispute about the payability of rent and requested the court to determine the same. On 4 8-72 the plaintiff moved an application for striking out the defence as the defendant had failed to make a deposit of the rent on the first date of hearing as required by sub-sec. (4) of sec. 13 of the Act. The defendant had also moved an application under sec. 10 of the Code of Civil Procedure for staying the present suit on the ground that the issue regarding there being one integrated tenancy in respect of both the portions of the premises was common in the two suits and consequently the present suit which was filed subsequently be stayed. Learned Munsif passed a common order rejecting the defendant's application for staying the suit as also for striking out the defence of the defendant. The learned Munsif held that the payment of rent in another suit though in the same court was not a valid discharge of the liability to pay rent. Aggrieved by this order the defendant went up in appeal to the court of the learned District Judge, Jaipur City. Jaipur but the learned District Judge dismissed the appeal. It is in these circumstances that the defendant has come in revision to this Court. It will be observed that the order challenged is composite one disposing of two distinct matters, one regarding the application for stay of the suit under sec. 10 Civil Procedure Code and the other regarding the striking out of the defence on account of the non-payment of the rent in this suit on the first date of hearing. Learned counsel for the respondent has raised a preliminary objection regarding the maintainability of the revision application concerning the order refusing to stay the proceedings in the suit. Learned counsel submitted that the order under sec. 10 Civil Procedure Code was not appealable and, therefore, the appeal against that order to the District Court was mis-conceived. The order of the learned Munsif is dated 29-8-72 and as the present revision was filed on 2-3-73 the same would he barred by time even if it were held that the revision be taken to be directed against the order of the learned Munsiff. The contention is irresistible. No appeal lies against an order passed on an application under sec. 10 Civil Procedure Code for staying a suit on the ground of certain issues in the suit being identical with the issues in an earlier suit. In the circumstances it was for the defendant to have approached this Court in revision within time. The order of the learned Munsif, therefore, cannot be interfered with so far as the learned Munsif has refused to stay the proceedings in the suit. Now, I may deal with the question whether the learned Munsif was justified in striking out the defence of the defendant under sec. 13 (6) of the Act. In dealing with this question the learned Munsif, inter alia observed. "when this present suit was instituted for the back portion, the defendant ought to have deposited all dues and arrears with respect to the suit property in order to save himself from the rigorous consequences of the mandatory legal provisions contained in sec. 13 (6) of the Rent Control Act. He cannot be absolved from the liabilities on the pretext for which there is no reasonable and valid ground to think that both the premises are part of the same tenancy. Learned Advocate for the plaintiff besides other authorities relied on A. I. R. 1965 S. C. 1910 with gain. It is true that the amount required to be deposited may be the amount for which the parties may have entered into contract but the manner and mode in which the deposit is required to be made in the court are the result of the statutory provision and it is in this sense that they constitute a statutory obligation. According to counsel for the plaintiff the unnecessary deposits of rent in earlier suit with regard to the premises involved in this suit is a mala fide act on the part of the defendant. He attempts to show that it was a common tenancy so that the plaintiff is turned out of the court. But the attempt is futile and baseless one. "
(3.) FROM the above passage it will be clear that the learned Munsif thought that since the deposit of the rent in respect of the portion which was the subject matter of the present suit being made in the earlier suit was of no consequence and therefore the defence was to be struck out and for this the learned Munsif relied on A. I. R. 1965 S. C. 1910. The learned District Judge in agreeing with the learned Munsif went on to say that even if he were to proceed on the basis that the entire rent of both the premises was paid under sec. 19-A he could not uphold the contention that nothing was due on the first date of hearing because the payments were not capable of discharging the liability under sec. !9d. It is the correctness of the view taken by the courts below that falls to be considered. Both the learned counsel are on common ground that the rent for both the portions was being paid in court in the earlier suit. The rent for February, March and April, 1971 had been paid on 15-5-71 and that for May, June and July, 1971 had been paid on 14-8-71 The present suit was filed on 6-7-72. Subsequently the rent was being paid before the 15th of the following month in court in the earlier suit. As a matter of fact, the only controversy that is raised is that the payment of the rent in court in the earlier suit will not avert the consequences of non-compliance with the provisions of sub-sec. (4) of sec. 13 of the Act. It is further remarkable that on the first date of hearing in this suit the defendant had moved an application under sub-sec. (4) of sec. 13 of the Act drawing attention to the earlier payments. I may straightway proceed to consider the Supreme Court case,kaluram vs. Baidyanath (l) on which the courts below have relied. The provisions that came up for consideration in that case were in same respects, analogous to the relevant provisions of the Rajasthan Act. Sec. 19a of the Rajasthan Act corresponds to sec. 21 of the West Bengal Act and sub-sec. (4) and (5) of sec. 13 correspond to the provisions of sec. 17 of the West Bengal Act. There is, however, one difference that under the West Bengal Act the deposit under sec. 21 of that Act is made before a Rent Controller, but a deposit under the Rajasthan Act is made before a court. In that case the tenant went on making deposits before a Rent Controller till after the filing of the suit, but he did not make any deposit in the court in which the suit was filed, on the first date of hearing. It is in this context that their Lordships observed as follows : When a landlord institutes a suit to recover possession of the premises let to his tenant on any of the grounds referred to in sec. 13, the tenant is required to deposit the amount in Court as provided by sec. 17 (1 ). The first part of sec. 17 (1) enables the tenant who has committed a default in the payment of rent prior to the institution of the suit to make up for that default and pay the defaulted amount as specified by this sub-section. But the tenant must pay interest on the defaulted amount calculated in the manner prescribed by it. As to the amount payable in future pending the suit or proceeding according to sec. 17 (1) the tenant must thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month, a sum equivalent to the rent at that rate. Whatever may be the cause on which the landlord's claim for eviction is based, under sec. 17 (1) subject to the provisions of sub-sec. (2) within one month of the service of the writ of summons on him, the tenant has to deposit in Court the amount in the manner prescribed by it. If he fails to comply, Sec. 17 (3) steps in and enables the landlord to claim that the defence of the tenant against delivery of possession should be struck out. " Then their Lordships further added that the Rent Controller is not Court within the meaning of sec. 17 (1 ). Though under sec. 21 and 22 a tenant may deposit rent with the Controller as soon as a suit is brought against him by the landlord, sec. 17 being a special provision comes into operation and it must prevail in cases covered by it. Now, there is a distinguishing feature, as already observed, under the Rajasthan Act. The rent is deposited under section 19a of the Act in a court. The term 'court' is defined under section 19a and a Court with respect to any local area means any civil court which may be specially authorised by the State Government by notification in this behalf, or where no civil court is so authorised, (i) the court of the Munsif, and (ii) the court of the Civil Judge, where there is no court of Munsif having jurisdiction over the area. Where the Govt. designates a court for the purposes of sec. 19-A and if it is a court different from the court in which the suit is filed some difficulty might arise, but in a case where the suit is filed in the very court in which the rent is being deposited under sec. 19a of the Act, then such a deposit in court, if otherwise valid, would be deemed to be a deposit in court for the purposes of the suit as well. If this were not so, then the tenant will be required to withdraw the amount from that very court and then re-deposit it then and there so that it may amount to a deposit on the first date of hearing. Such an empty ritual could not have been intended by the legislature. Here the question is that in order to comply with the requirement that the rent has to be deposited in the suit the defendant started depositing the rent for both the portions of the premisses in that suit. This is certainly a deposit in court even for the purposes of sub-sec. (4) of sec. 13 of the Act. Not only that, it is a payment of rent in court even prior to the first date of hearing. The underlying object of sub-sec. (4) of sec. 13 is to give protection even to defaulting tenant that by making the deposit of all the arrears of rent together with incidentals like the interest and the expenses of the suit the tenant has yet one more chance to avert his eviction. But, if the tenant has already deposited the rent in court then such a tenant can be said to be a person who is undoubtedly ready and willing to pay the rent to the full extent allowable by this Act within the meaning of sub-sec. (1) of sec. 13 of the Act which is the condition for getting protection against eviction. The court has in that event to be satisfied about the existence of such facts as may bring the tenant's case under any of the sub-clauses (a) to (k) to sub-sec. (1) of sec. 13 so as to take away such a protection. Sub-sec. (4) of sec. 13 contemplates any of the two things to be done by the tenant : (1) to deposit the rent in arrears on the first date of hearing or (2) to make an application for fixing a date for such deposit, and in the latter case he shall be entitled to deposit the rent before such date as the court may fix or within such time not exceeding two months as may be extended by the court or he may pay this amount to the landlord. Sub-sec. (5) enables the tenant to raise a dispute regarding the payability of the rent. I am not on the question whether such an application raising the dispute about the payability of the rent has to be made on the first date of hearing or should be made even subsequently, because in the present case the application for determination of the dispute was admittedly made on the first date of hearing. The only consideration that seems to have weighed with the learned District Judge was that inspite of the tenant having made the deposit in the earlier suit something more yet remained to be paid on the first date of hearing- Perhaps by this he meant the usual incidentals like interest and costs, but it has to be noticed that the rent had already been deposited long before the first date of hearing and the requirement of sub sec. (4) is not that the rent is to be deposited only in the same suit. To my mind, if another suit in respect of the other portion of the premises was already instituted and if in that suit the tenant had been paying the rent for the entire premises and there was also an issue about the tenancy being one integrated the deposit of rent in the earlier suit would discharge the liability of the tenant for the payment of rent in respect of the other portion of the premises. ;