N. M. KASLIWAL, J. - (1.) THIS revision is directed against the order of learned Additional District Judge No. 1 Jaipur City dated 1st September, 1982, confirming the order passed by the Additional Munsif and Judicial Magistrate No. 3, Jaipur City, dated 12th May, 1981.
(2.) BRIEF facts leading to this revision are that the plaintiff-non-petitioners filed a suit for arrears of rent and ejectment against the defendant-petitioners for a shop situated at Sasni Sitarampura, Jhotwara Road Jaipur. The shop was let out to the petitioners on a monthly rent of Rs. 50/ -. The grounds on which ejectment was sought were default in payment of rent for more than six months and reasonable and bonafide personal necessity of the plaintiff Nathu Lal. The petitioners filed a written statement and contested the suit and denied all the allegations made in the plaint. As regards the default in the payment of rent, it was submitted that the rent was said to Gulab Chand father of the non-petitioners and the defendants have not committed any defult in the payment of rent. It was also pleaded that in the year 1965, rent of the shop in question was Rs. 26/- per month and as such it was prayed that the standard rent of the shop in question be fixed at Rs. 26/- p. m. and provisional rent of the shop in question be also fixed accordingly. The learned trial Court proceeded to fix the provisional rent under sec. 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act') by order dated 10th Jan. , 1979, the provisional rent upto December 1978 along with intrest was determined amounting to Rs. 2,868,75. It appears that subsequently the time was extended upto 27th March, 1979 for depositing the determined rent. There is no dispute that the amount so determined was deposited within the aforesaid period. The defendant-petitioner along with the aforesaid determined rent also deposited rent for the month of February, 1979. The plaintiff-non - petitioner submitted an application on 12th October, 1979 under section 13 (5) of the Act for striking of the defence of the petitioners against eviction on the ground that the petitioners had not paid the determined rent to the plaintiffs nor the monthly rent due till the date of the application was paid to the plaintiff-non-petitioners. The petitioners submitted a reply and inter alia contended that the rent for the month of January, 1979, was paid to Gulab Chand father of the non-petitioners on 7th February, 1979, but the rent for the month of February, 1979, when offered to him, he refused to accept on the advice of his counsel. In this view of the matter the rent for February, 1979 was also deposited along with the rent determined by the learned Trial Court under Section 13 (3) of the Act. It was also submitted that since the defendant-petitioner Siya Saran had fallen ill, the rent for February, 1979 could not be deposited before 15th March, 1979, however, the same was deposited along with the determined rent and as such delay in depositing the rent for the month of February may be condoned. Learned trial Court held that so far as the rent determined under Section 13 (3) of the Act was concerned, the same was deposited well within the extended time. As regards the rent for the month of January. 1979, the trial Court held that prima facie the payment of rent to Gulab Chand as alleged by the defendant petitioners was not held proved. As regards the payment of rent for the month of February 1979, the trail Court held that no sufficient ground was made out for condoning the delay from 16th March. 1979 to 27th March, 1979 and in view of these circumstances the trial Court allowed the application under Section 13 (5) of the Act and ordered to strike of the defence of the petitioners against eviction. The defendant-petitioners aggrieved against the order of the trial Court, filed an appeal, which was also dismissed by the learned Additional District Judge by his order dated 1st September, 1982. The first appellate Court also affirmed the findings of the trail court with regard to the rents for the months of January and February, 1979. Aggrieved against the judgment of both the lower Courts, the defendant-petitioners have filed the present revision. It was contended by Mr. Rastogi, learned counsel for the petItioners, that both the lower Courts commItted an error of law in placing reliance on the report of the hand-wrIting expert for holding that the receipt dated 7th February 1979 for payment of rent for the month of January, 1979, was not genuine. The plaintiffs had not produced the hand wrIting expert in evidence and merely the report of the hand-wrIting expert could not have been taken into consideration as a substantive piece of evidence. It was also argued that the courts below were wrong in comparing the signatures of Gulab Chand wIth his admItted signatures and the and role of an expert should not have been under-taken by the courts themselves. As regard the rent for the month of February, 1979, It was submItted that the two courts below seriously erred in not condoning the delay merely on the ground that even if Siya Saran defendant-petItioner was ill the other defendant Ramsaran could have deposIted the rent. It was also argud by Mr. Rastogi that the defendant petitioners had taken a plea in the written statement that standard rent should be fixed in the case @ Rs. 26/- p. m. and in these circumstances the provisional rent ought to have been determined under Sec. 7 of the Act and not under sec. 13 (3) of the Act. It was also submitted that a determination of provisional rent under section 7 of the Act supersedes and has an over-riding effect on the determination of provisional rent under section 13 3) of the Act. In view of these circumstances it is contended that there was no question of striking of the defence against eviction under section 13 (5) of the Act. Section 13 (4) of the Act reads as under: "13 (4)-The tenant shall deposit in court or pay to the landlord the amount determined by the Court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the Court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the Court under sub-section (3 ). "
(3.) IT was further argued by Mr. Rastogi that according to the above provision the operation of the words "shall also continue to deposit" shall come into effect only after the extended period allowed for deposit of the rent determined under Section 13 (3) of the Act. The argument is that if the time for depositing the rent determined under section 13 (3) of the Act was extended upto 27th March, 1979, the liability to deposit the rent for the months of January and February, 1979 can only commence after 27th March. 1979 and not earlier. In the order dated 10th January, 1979, the rent was determined upto December, 1978 and if time was extended for depositing the same upto 27th March, 1979, tenant was entitled to deposit the monthly rent falling due for the months of January, February and March, 1979 upto 15th April, 1979. On the other hand, it was argued by Mr. Barhdar that the question whether the rent for the month of Jan. , 1979, was paid to Gulab Chand or not by receipt dated 7th Feb. 1979, was a question of fact and both the courts below having taken the view that the receipt was not genuine, cannot be interfered by this Court in the exercise of its revisional jurisdiction. It was further submitted that the courts below were also competent and had jurisdiction to hold that no sufficient cause was made out for condoning the delay in the payment of rent for month of February, 1979 and there is no error of jurisdiction so as to call for any interference under section 115 C. P. C. It was also argued by Mr. Barhdar that there was no question of determining the provisional rent under Section 7 of the Act as it was not a suit filed under Section 6 of the Act and the Trial Court was right in determining the provisional rent under Section 13 (3) of the Act. It was further submitted that in any case the argument now sought to be raised in this regard by learned counsel for the petitioners was never raised before the trial Court or first appellate Court. ;