N. C. KOCHHAR, J. - (1.) AS this appeal as also SB Civil Misc. Appeal No 106/93 "shekhar Vs. Parvati Devi & Ors" (the other appeal) involve common question and arise out of the common order dated 6-3-1993 passed by the learned Additional District Judge No. 2, Jodhpur in Civil Original Suit No. 148/91, both these appeals are being decided together. The brief facts are as under:-
(2.) THE suit, out of which these appeals have arisen, has been filed by Smt. Parvati Devi (hereinafter to be referred as the land lady) with the allegations that she is the owner of the premises in dispute and had let it out to Shri Peerulal (hereinafter to be referred as the tenant) vide agreement dated 21. 10. 1982 at a monthly rent of Rs. 700/- but that the tenant had committed default in payment of rent for a period of more than six months by not paying the rent with effect from 21-4-1990 and also that he had sub-let the premises in dispute to Mohd. Aslam and Shekhar (hereinafter to be referred as the appellants ). She, therefore, prayed for a decree of eviction against the tenant on the grounds of default in payment of rent and sub-letting. In his written statement, the tenant admitted that he had not paid the rent for the period in question and had committed default but pleaded that the appellants were his employees. In their written statement, the appellants pleaded that they were inducted as tenants in the premises in dispute by Peerulal, who is the husband of the land lady, and that they have been paying rent in respect of the premises in dispute to him only. THEy denied that they were the employees of Peerulal. Since one of the grounds of eviction in the suit is default in payment of rent, the learned trial court, after hearing the learned counsel for the parties, passed the impugned order under sub-section (3) of section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (the Act) directing the tenant as well as the appellants to pay a sum of Rs. 23, 800/- by way of rent due for the period from 21-4-1990 to 21-2-1993 and Rs. 1963-50 p. towards interest at the rate of 6% per annum, within a period of 15 days from the date of the order and also to deposit future rent at the rate of Rs. 700/- p. m. within 15 days with effect from |21st of each succeeding month. Feeling aggrieved, this appeal has been filed by the appellant Mohd. Aslam and the other appeal has been filed by the appellant Shekhar. Both these appeals came-up for admission before me when Shri Mishri Lal, Advocate appeared for the land lady and the arguments for disposal of the appeal at this stage have been heard. It is not disputed that according to the case of the land lady, as made out in the plaint, Peerulal-tenant had become liable to eviction from the premises in dispute on the ground that he had not paid rent for the period in question and had also sub-let the premises in dispute to the two appellants and it is clear that the landlady herself did not claim any right of recovery of rent from the two appellants. Even if the two appellants are sub-tenants in the premises in dispute; having been inducted by the tenant, their land lord is the tenant and not the land lady and they are liable to pay rent to Peerulal-tenant and not to the land lady. Under the contract of tenancy it is the liability of the tenant to pay rent to the land lord for the premises let out to him. Under the scheme of the Act if a tenant fails to pay or tender rent for the statutory period to the land lord, the latter can seek his eviction from the premises and when a suit of eviction is brought against the tenant, the court has to provisionally determine the arrears of rent as also the future rent to be paid by the tenant during the pendency of the suit and, if the tenant deposits or pays the rent to the land lord as determined by the court, even if the ground of default is proved, the suit for eviction on the ground of default in payment of rent cannot be decreed as in view of sub-section (6) of section 13 of the Act the payment of rent during the pendency of the suit in compliance with the order determining the provisional rent amounts to condonation of the default in question if the default has been committed for the first time during the period of tenancy. This position is not disputed by Shri Mishri Lal, the learned counsel for the land lady. He has, however, submitted that the appellants themselves having pleaded that they were the tenants in the premises in dispute, the learned trial court was justified in passing the impugned order against them as well. As noted above, according to the case of the plaintiff-land lady there was no liability of the appellants to pay any rent to her and, as such, no order determining the provisional rent could be passed against them. Even if it be taken that by pleading that they were the tenant in respect of the premises in dispute, they had incurred any liability to the land lady, who admittedly, has not accepted them as her tenants and no claim having been made against them could be allowed by the court and, as such, the learned trial court had no jurisdiction to pass the impugned order as against the two appellants. For the above said reasons, the impugned order, as far as the two appellants are concerned, is not legal and cannot be sustained. Consequently, both these appeals are accepted and the impugned order is set aside as far as the two appellants are concerned. No costs. . ;