- (1.) THIS is a second appeal by the plaintiffs in a suit for arrears of rent and ejectment.
(2.) IT is common ground between the parties that the appellant had leased out their shop to the respondent Bhomraj on 2lst May, 1949, and since then the respondent is in possession thereof. The shop is situated in Jain Market, Barmer and its boundaries are mentioned in para No. 1 of the plaint The shop was originally given on a rent of Rs. 50/-per month, but the respondent approached the Rent Controller for fixation of standard rent. The Rent Controller ordered him to pay rent at the rate of Rs. 50/- per month from 21st May, 1949 to 30th June, 1949. But from 1st July, 1949 the rent was' reduced to Rs. 15/-per month. The appellants' case in the trial court was that even according to the reduced rent i. e. Rs. 15/- per month, the respondent ought to have paid Rs. 741/10/- to the appellants upto 31st March, 1953, but he actually paid only Rs. 481/1/- by that date. On 31st March, 1953 the appellants gave a notice to the respondent whereupon he sent Rs. 191 8/-on 15. 4. 53 towards rent upto the end of May, 1953. According to the appellants the rent for the next two months i. e. June and July, 1953 again fell in arrear. It was, therefore, prayed that a decree for Rs 30/- and ejectment may be passed against the respondent. The respondent pleaded that on 15th April, 1953 he had paid not only rent upto that date but also future rent ending June, 1953 and that he was liable to pay only the rent for the month of July. It was urged that he never committee any default in paying the rent, but the appellants themselves delayed acceptance by saying that they would fake it after their revision application against the reduction of rent is decided by the Revenue Board. It was further pleaded that on 22nd August, 1953 he had paid to them Rs. 45/- as rent for the months of July, August and September, 1953, that he was thus not a defaulter in any way and the suit should be dismissed. On 5th September, 1953 the trial court found that the respondent was liable to pay to the plaintiffs-appellants Rs. 30/12/- for arrears of rent together with interest and costs of the suit and that he should deposite it in the court by 17. 9. 53. The respondent having deposited the money the suit was dismissed on 17. 9. 53. It was urged by the plaintiff that the respondent was liable to be ejected from the shop but the contention was set aside on the ground that the respondent had complied with the directions of the court as given under sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, as amended in 1952. The plaintiffs went in appeal to the District Judge, Balotra. He did not agree with the interpretation of the trial court about sec. 13 sub-sec. (1) clause (a) and sub sec. (4) but the trial court decision was maintained on the ground that the plaintiffs had not mentioned in their plaint the due dates of the payment of the rent and the alleged defaults said to have been committed by the defendants. It was also point out that the plaintiffs had failed to mention in their plaint three defaults within a period of 18 months as required by sec. 13 sub-sec. (1) (a) of the said Act. Learned advocate for the appellants has urged that the respondent had not paid to the appellants the rent for June and July 1953, that his previous three defaults of the like nature were apparent from the pleadings of the parties and therefore a decree for eviction should have been passed by the courts below and since they have committed an error in not passing such a decree it should now be passed by this Court. Learned advocate for the respondent has urged on the other hand that even if it be assumed that the respondent had committed default in payment of rent on three occasions within a period of 18 months he paid the entire rent according to the determination of the trial court under sec. 13 sub-sec. (4) of the Rajasthan Premises (Control of Rent and Eviction) Act and therefore, there was no other alternative for the trial court but to dismiss the suit for eviction. Ave gone into the pleadings of this case and I find that the plaint in this case was presented on 11. 8. 53. The period of 18 months earlier before that date would go back to 11. 2. 52. In para No. 3 of the plaint it was shown by the plaintiff that the last payment in the year 1952 was on 27. 11. 52. The next payment thereafter was on 15. 4. 53. It was not denied by the respondent in his written statement that he made no payment between 27. 11. 52 and 15. 4. 53. On the other hand it was admitted by him in para No. 7 of the written statement that on 15. 4. 53 he sent a money order of Rs. 191/8/- for arrears of rent. This amount calculated at the rate of Rs. 15/- per month was for arrears of rent for the last 13 months. There is, therefore, no doubt about the fact that the respondent had committed default in payment of rent on three occasions within a period of 18 months. The next question for determination is whether the appellants must get a decree for eviction according to law on account of said defaults or the trial court could give time to the respondent under sec. 13 (4) of the Rajasthan Premises Control of Rent and Eviction) Act and dismiss the suit because the arrears of rent were paid by the respondent within the time given to him by the court. The determination of this question turns upon the interpretation of sub-sec. (1) and (4) of sec. 13 of the said Act. The Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) was amended by the Amendment Act No. IX of 1952 and the relevant amended section now read as follows: - Sec. 13. Eviction of tenants.- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree; or make any order, in favour of a land-lord, whether in execution of a decree or otherwise, evicting the tenant, so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for any two months : Provided that no eviction shall be ordered under this clause if the tenant pays in Court on the first day of hearing such arrears of rent together with the costs of the suit: Provided further that the tenant shall not be entitled to the benefit of protection against eviction under this clause if he has made a like default in payment of rent on three occations within a period of eighteen months; or (b ). . . . . . . . . . . . (4) In a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), if it is not dismissed for either of the reasons stated in the provisos thereto the Court shall on she first day fixed for the hearing thereof by order determine the amount of rent due from the tenant, which is in arrears, up to the date of such order as also the amount of interest thereon at the rate of six per centum per annum and of the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amounts so specified on or before a date fixed thereby, which shall not be beyond the fifteenth day from, but exclusive of the date thereof. If on or before the date so fixed for payment, the tenant deposits in Court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord It would appear from a perusal of the above section that sub-section (1) lays down that whatever may be the contract between the parties or whatever may be the right of the landlord under any law no court should pass any decree or make any order in favour of a landlord for evicting the tenant so long as the latter is ready and willing to pay rent therefor to the full extent as allowed by this Act. It also says that even if there is a decree for ejectment of she tenant, the tenant would not be evicted if he fulfils the conditions referred to above. To this there is an exception which is provided in clause (a ). It says that if the court is satisfied that the tenant has neither paid nor tendered the amount of rent payable by him for any two months, the court may eject him. To this exception itself however there is a further exception which is embodied in the first proviso. According to this first proviso, even though the tenant has failed to pay or tendered the amount of rent for any two. months an order of eviction against him will not be passed if on the first day of hearing he pays into the court such arrears of rent together with the costs if the suit. The amendment made by Act No. IX of 1952, has inserted a second proviso to clause (a ). It says that if the tenant has made a like default i. e. the default shown in clause (a) on three occasions within a period of 18 months then the right given to him by the first proviso would not be available and he cannot claim the benefit of protection given therein. It is on the basis of this second proviso that learned advocate for the appellants has urged that the respondent having committed defaults in payment of rent on three occasions within a period of 18 months, he forfeited the protected against eviction given by the law and therefore, the order for his ejectment should be passed by this Court. Learned counsel for the respondent has however, urged that clause fa) of sub-sec. (1) which contains both the provisos is subject to the provisions of sub-sec. (4) which has been newly inserted by the Amendment Act (No. IX of 1952) and since the respondent has complied with the order passed under sub-sec. (4) he cannot be evicted. It would appear from sub-sec. (4) that it lays down that if there is a suit for eviction on the ground mentioned in clause (a) of sub-sec. (1) and if such suit is not dismissed for either of the reasons stated in the provisos thereto then it is the duty of the court that on the first day of hearing of the case it should by its order determine as to what amount of rent is due from the tenant upto the date of that order. The court should further deter-mine what amount of interest at the rate of 6 per cent per annum on the arrears of rent the landlord is entitled to get up to that date. After determining these things the court should direct the tenant that he should pay the total amount i. e. the arrears of rent plus interest plus the costs of the suit on or before the date which should be fixed by the court. That date should not extend beyond a period of 15 days from the date of the order. Then it is further provided that if on or before such date fixed by the court the tenant deposits the total amount in the court then the court must dismiss the suit and the amount should be paid to the landlord Learned counsel for the appellants says that sub-sec. (4) would be applicable only if the tenant fails to take advantage of the first proviso to clause (a) of sub-sec. (1 ). In other words, if the tenant has not paid or tendered the amount of rent due from him for any two months and if he also fails to pay into the court on the first day of hearing such arrears of rent together with the costs of the suit, then only the court should proceed under sub-sec (4 ). It is urged that if second proviso is applicable and the tenant has within the period of 18 months committed defaults on three occasions then sub-sec. (4) does not come into play and landlord gets the right of evicting the tenant. Thus according to him the right given to the landlord by the second proviso is not subject to the provisions of sub-sec. (4 ). It has been argued that if sub sec. (4 governs the second proviso also then the additional right given to the landlord by the Amendment Act becomes meaningless and the court should therefore interpret sub-sec. (4) in such a way that the right given by the second proviso is not negatived. This argument is not unreasonable but unfortunately the language of sub-sec. (1) does not bear a such an interpretation. The whole difficulty is created because of the following words occurring in sub-sec. (4): ". . . . . . . . . if it is not dismissed for either of the reasons stated in the provisos thereto". . . . . . . . . . . It is apparent that the said abstract contains the word 'provisos' in plural and not 'proviso' in singular. It is therefore not proper to say that this sub-section refers to proviso No. 1 and not to both the provisos. Further, it may be pointed out that the words 'either of the reasons' also show that both the provisos are meant and the words 'provisos' in plural is not used only by mistake. Learned counsel perhaps thought that by printing mistake provisos appear instead of the word 'proviso' but this surmise does not stand because of the appearance of the said words i. e. 'either of the reasons'. It is therefore, clear that sub-sec. (4) governs both the provisos and not only one proviso. Learned counsel for the appellants says that if this interpretation is made, the right given to the landlord by the second proviso becomes altogether useless. In my opinion, the second proviso does not purport to give a right to the landlord although it indirectly gives a right to him. This proviso shows that it was inserted only to take away the absolute right given to the tenant in proviso No. 1. The first proviso gave to the tenant a right that if he paid into the court on the first day of hearing all the arrears of rent together with costs of the suit, he would not be evicted by the court. That protection given to him was taken away by the second proviso if he had committed similar defaults in the past on three occasions within 81 months. Sub-sec. (4) makes it further clear that inspite of such defaults on the part of the tenant the court would still protect him if he pays the arrears of rent, the interest thereon and the costs of the suit as determined by the court under sub-sec. (4) on or before the date fixed in the order. The net result of proviso No. 2 is only this that the landlord further becomes entitled to get interest on arrears of rent if the tenant complies with the order passed under sub-sec. (4) and if he does not comply with that order he also becomes entitled to get an order of eviction against the tenant. In the present case the respondent complied with the order of the trial court passed under sub-sec. (4) and therefore inspite of his making defaults of payment on three occasions within 18 months,this Courts cannot pass a decree for eviction against him. The appeal is, therefore, dismissed with costs. . ;