LODHA, J. - (1.) THIS revision application by the defendant-tenant raises an in-eresting question though a short one. The question is whether a tenant who having btained benefit under sec. 13a of the Rajasthan Premises (Control of Rent and viction) Act, 1950 (hereinafter referred to as 'the Act') again makes a default in the ayment of rent for six months is liable to have his defence against eviction struck out nder sec. 13 (6) of the Act on account of his failure to deposit or pay any amount eferred to in sub sec. (4) or sub-sec. (5) ? It arises in the following circumstances : -
(2.) THE defendant-petitioner took the suit shop on rent from the plaintiff-non-etitioner on 1-12-1953 on a monthly rent of Rs. 25/ -. THE plaintiff filed a suit for jectment on the ground of default in payment of rent. During the pendency of the uit sec. 13-A was introduced and in accordance with sec. 13-A the tenant paid the ent, interest and costs with the result that the suit for ejectment was dismissed on 4. 7. 1966. THEreafter the plaintiff brought a second suit for ejectment on 4-7-1968 inter alia on the ground that the defendant had again committed default in payment of rent for the period commencing from 18-1966 to 19-6-1968. THE date of first hearing of the suit was 22-11-1968. After taking one adjournment the defendant filed written statement on 3-1-1969. He pleaded inter alia that he remitted monthly rent to the land-lord time and again by money orders but the land-lord went on refusing with a view to create a ground for ejecting him on the ground of default. He further pleaded that inspite of refusal of the landlord to accept the money-orders, he deposited the full arrears of rent under sec. 19a of the Act and nothing was due from him upto 17-8-68. Thus his case was that he had not committed any default on payment of rent and the suit for ejectment on the ground of default was not maintainable. On 25-2-1969 the defendant submitted an application under sec. 13 (4) of the Act stating that he had deposited an amount by way of rent more than claimed by the plaintiff, yet by way of abundant caution he prayed that it may be determined whether after making allowance for the default under sec. 19a, any amount remained due from him, and if so a direction may he given in accordance with the law so that the defendant may deposit the same. This application was opposed by the landlord who filed a written reply wherein he contended that the defendant had already taken benefit of sec. 13a in the previous suit and therefore he was not entitled to save himself from ejectment by making the deposit under sec. 13 (4 ). After hearing arguments on this application the Court by its order dated 26-4-1969 directed that an issue we framed whether the defendant has committed a second default in payment of rent. It was, however, held that the application under sec. 13 (4) was not maintainable. THE case then proceeded to trial. After some evidence had been recorded, the plaintiff made an application on 15-7-1971 under sec. 13 (6) of the Act praying that since the tenant's application under sec. 13 (4) of the Act had been dismissed and he had not deposited the arrears of rent along with interest on the first date of hearing i. e. 22. 11. 1968 his defence may be struck out. THE learned Munsiff by his order dated 2-8-1971 allowed the application and struck out the defence of the tenant against eviction. Aggrieved by the order of the learned Munsiff, the defendant-tenant filed appeal but the Same was dismissed by the learned Additional District Judge No. 2, Jaipur City by his order dated 8-8-1972. Hence this revision by the defendant-tenant. Learned counsel for the petitioner has urged that the courts below had no jurisdiction to strike out the tenant's defence under sec, 13 (6) of the Act for allegedly not depositing or paying the amount referred to in sub-sec. (4) or sub-sec. (5) of the Act, because the benefit of the deposit even if made would not have been available to the tenant on account of proviso to sub-sec. (7) of sec. 13. It is incontrovertible that the defendant is not entitled to any relief under sub sec. (7) of sec. 13 on account of his having obtained benefit under sec. 13a and this is precisely the plaintiff's case. For the sake of convenience I may reproduce here sec. 13 (4) to (7) : - " (4) In a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), with or without any of the other grounds referred to in that subsection, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for the period for which the tenant may have made default including the period subsequent thereto upto the end of month previous to that in which the deposit or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each suceed-ing month a sum equivalent to the rent at that rate. (5) If in any suit referred to in sub-sec. (4), there is any dispute as to the amount of rent payable by the tenant), the court shall determine, having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with the provisions of sec. 4. (6) If a tenant fails to deposit or pay any amount referred to in sub-sec. (4) or sub-sec. (5), on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. (7) If a tenant makes deposit or payment as required by sub-sec. (4) or sub-sec. (5 ). no decree for eviction on the ground specified in clause (a), of sub-sec. (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord. Provided that a tenant shall not be entitled to any relief under this sub section if having obtained such benefit under section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accomodation for six months. " Now the point is whether even though the defendant is not entitled to the benefit available to a tenant under sub-sec. (7) on account of proviso below it, is he still liable to be penalised under sub-sec. (6) for noncompliance with the provisions of sub-sec. (4) or sub-sec. (5) ? Learned counsel for the parties submit that there is no case law available on the point. The matter is therefore to be decided on first impression and on the interpretation of the provisions of the Act. It may be pointed out that sub-sec. (4) and (5) have been introduced for the benefit of the tenant so that in case of first default he may protect himself against ejectment by making the required deposit or payment as provided therein. But in case of a tenant who has committed a second default, as mentioned in the proviso to sub-sec. (7) no such benefit is available. It is a principle of jurisprudence that rights and liabilities are co-relative. Consequently if a certain provision of law provides a benefit to a class of persons on performance of the act mentioned therein the penalty prescribed for nonperformance of the act cannot be meted out to a person who cannot avail of the benefit of such provision. It would, thus be incongruous to say that even though the defendant cannot save himself from ejectment by making the deposit or payment under sub-sec. (4) or sub-sec. (5) of sec. 13 of the Act, yet he is liable to have his defence struck out on account of noncompliance of the same. It appears to me therefore that snb-sec. (6) of sec, 13 cannot be pressed into service against a tenant to whom the benefit tinder sub-sec. (7) is not available. Since the case of the defendant falls under the proviso to sub-sec. (7), the penalty provided under sub-sec. (6) of striking out the defence cannot be meted out to him. There is yet another aspect of the case, which must not be lost sight of. The plaintiff-landlord has taken a queer position. The tenant came forward with a plea that he had not committed any default and that he had made the full deposit of the amount of rent as required by sub-sec. (4) of sec. 13, under sec. 19a of the Act. By way of abundant caution he also made an application under sec. 13 (4) on 25-2-1969. It is true that this application was not made on the first date of hearing but that is not material, for the plea taken by the plaintiff in the reply filed by him to that application was that no application under sec. 13 (4) as maintainable was the tenant had committed a second default. Having succeeded in getting that application dismissed on the ground of second default, he returned round and made an application under sec. 13, sub-sec. (6) praying that since no application had been made under sec. 13 (4), the defendant's defence should be struck out. This is nothing but a game of hide and seek which courts cannot countenance. Apart from that due attention must also be paid to the fact that according to the case set up by the defendant he had made full deposit as required by law even after the institution of the suit under sec. 19a and his case in nutshell is that he had deposited the amount in excess of the rent claimed by the landlord and nothing was due from him to be deposited on the first date of hearing. However, no enquiry was made on this point apparently because the plaintiff did not want any such enquiry to be made and he tried to snap the defendant's case by resorting to the provisions of sec. 13 (6) which, as held by me in the earlier part of this judgment, has no application to the facts and circumstances of the present case. The result of the foregoing discussion is that the defendant's defence has been wrongly struck out. This revision application is, therefore, allowed, the orders of the courts below are set aside and the trial court is directed to proceed in accordance with law. No order as to costs. . ;