- (1.) THE brief facts giving rise to this revision petition filed by the petitioner-tenant Ramgopal under section 115 of the Code of Civil Procedure (the Code) are as under : -
(2.) THE petitioner is in occupation of the premises in dispute which is residential in nature as a tenant under the respondents and, according to the agreement between the parties, rent at the rate of Rs. 22/- per month was to be paid by the petitioner to the respondents-land-lords. A suit for eviction on the ground of default in payment of rent for a period of more than six months and on personal requirement was instituted by the respondents against the petitioner before the learned trial court, who, after hearing the learned counsel for the parties, passed an order under sub-section (3) of section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (the Act) directing the petitioner to deposit the arrears of rent at the agreed rate of Rs. 22/- per month within the period specified therein and also to deposit future rent month by month at the same rate during the pendency of the suit by 15th of each succeeding month. THEre is no dispute that this order passed by the learned trial court was complied with by the petitioner-tenant. However, the respondents, who felt that the agreed rent was no adequate filed a suit for fixation of the standard rent of the premises in dispute and, after the trial of the suit, the rent was determined by the learned trial court at the rate of Rs. 37-50 per month, but, on appeal, the standard rent was fixed at the rate of Rs. 33/- per month with effect from the date of the filing of the suit for fixation of standard rent. After the fixation of the standard at the above said rate of Rs. 33/- per month the respondents moved an application under sub-section (5) of section 13 of the Act stating that by not depositing the arrears of rent at the rate of Rs. 33/-per month the petitioner had committed default in complying with the order passed under sub-section (3) of section 13 of the Act and praying that the defence of the petitioner should be struck off. THE learned trial court, after hearing the learned counsel for the parties, dismissed the said application. THE appeal filed by the respondents-land-lords was accepted by the learned Additional District Judge No. 5, Jaipur City, Jaipur vide the impugned order dated 5-11-1992 and as such the application filed by the respondents was allowed and the defence of the petitioner against his eviction from the premises in dispute was struck off. Feeling aggrieved, the petitioner has approached this court by filing this revision petition. When this revision petition came up before this court, Shri S. C. Goyal, Advocate has appeared for the respondents and with the consent of the learned counsel for the parties, the arguments have been heard for disposing of this revision petition at this stage itself. The only question to be seen is as to whether any default had been committed by the petitioner in complying with the order passed by the learned trial court under sub-section (3) of Section 13 of the Act, which, as noted above, was passed with a direction that the rent should be deposited at the agreed rate of Rs. 22/- per month. It is not disputed that after the fixation of the standard rent no order was sought from the learned trial court modifying the earlier order passed under section 13 (3) of the Act in regard to the rate in question. If a tenant fails to pay the rent due from him and which is legally recoverable, the land-lord has two remedies against him; one is recovery of rent due from the tenant and the other is to institute a suit for eviction against him under the provisions of the Act. The former remedy is always open to a land-lord i. e. to make recovery even if he does not resort to the other remedy seeking eviction of the tenant. However, if the remedy of seeking eviction of a tenant is taken by the land-lord the tenant cannot be evicted except on the grounds mentioned in section 13 of the Act and if he complies with the order regarding payment of rent as passed by the court trying the suit for eviction he has to be given the benefit of sub-section (6) of section 13 of the Act in case the default committed is found to be first during the term of his tenancy. The tenant cannot be said to have committed any default in complying with the order which was never passed by the court and, as noted above, the learned trial court never passed an order directing the tenant to pay rent at the rate of Rs. 33/- per month either in regard to the arrears of rent or in regard to the future rent and, as such, it cannot be said that any default had been committed by the tenant-petitioner in complying with the order in question. Mere fixation of standard rent would not mean that the order passed under sub-section (3) of section 13 of the Act stood automatically modified and the non-compliance attracted the penalty of striking off the defence of the petitioner-tenant. The learned first appellate court, in my view, committed grave error of jurisdiction in striking off the defence of the petitioner- tenant and the impugned order cannot be sustained. Consequently, I accept this revision petition, set-aside the impugned order dated 5-11-1992 passed by the learned Additional District Judge No. 5, Jaipur City, Jaipur and dismiss the application filed for striking off the defence of the petitioner tenant. No costs. . ;