- (1.) THIS is a defendant's appeal in a suit for ejectment and arrears of rent. The ground on which the ejectment was sought was that the defendant had not paid rent for the last 19 months inspite of notice. The 4th of February 1952 was fixed in the case for the filing of the written statement and upto the said date, the defendant had deposited a sum of Rs. 137/- i. e. arrears of rent due upto date. The written statement was filed on the 4th of February,1952and thereafter there was an amandment of the Rajasthan Premises (Control of Rent, and Eviction)Act 1950 hereinafter to be referred to as the Principle Act, and for the same reason the Act which amended the Principal Act shall be hereinafter to be deferred to as the Amending Act. No notice was taken of this amendment in the first court and the said court giving its finding on the issues in the case against the defendant, decreed the suit. The defendant went in appeal and, there, he raised a point that under the Amending Act it was the duty of the first court to determine the amount of rent due from the tenant upto date dare of its order as also the amount of interest thereon at the rate of 6% P. A. and of the costs of the suit allowable to the landlord and to direct the defendant tenant to pay the aggregate of the amount so specified on or before a date fixed thereby which was not beyond fifteenth day from, but exclusive of the date thereof. As such action was not taken by the first court the defendant was not liable to ejectment. The appeal came up for hearing before Shri K. N. Sharma Civil Judge, Jaipur City, who repelled the contention of the defendant and dismissed the appeal. The defendant has now come in second appeal to this court.
(2.) IT has been argued by Mr. R. C. Sharma on behalf of the appellant that it was the duty of the first court to have proceeded under sub sec. 4 of sec. 13 which was added to the Principal Act by the Amending Act. This sub-sec. 4 runs as follows. "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 proviso thereto, the court shall on the first day fixed for the hearing thereof, day 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. On behalf of the respondent,it was argued that in the first instance the newly added sub-sec. 4 did not apply to the present case as the first date of hearing in the suit had preceded the date on which the Amending Act came into force. It was argued that the said sub-section is not retrospective in its effect and could not apply to a date fixed before it come into force. It was argued that under the Principal Act before it was amended it was the duty of the defendant-appellant to have deposited the entire arrears of rent due up to date together with costs of the suit. The first date of hearing in the case was 4th of February, 1952, but till that date, the defendant had not deposited the costs of the suit and had only deposited the arrears of rent He could not therefore, take advantage of the proviso to clause (a) of sub-sec. 1 of sec. 13 of the Prinicipal Act. It was further argued that even assuming that sub-sec. 4had retrospective affect, the defendant could not take advantage of the first proviso to clause (a) of sub-sec. 1 of sec. 13 because by the second proviso such advantage is denied to a tenant who had made default it the payment of rent for any two months on three occasions within a period of eighteen months. I have considered the arguments of both the learned counsel. I do not think it necessary for me to go into the question whether the newly added sub-sec. 4 of sec. 13 by the Amending Act has retrospective effect because even assuming that it has I do not think that the defendant can have protection against his ejectment. The Amending Act which has added sub-sec. 4 has amended clause (a) of sub-sec. 1 of sec. 13 and by the amendment the words "the whole of any arrears of rent due within one month of the service on him of a notice of demand from the landlord" have been substituted by the words "the amount of rent due from him for any two months". Another addition has been made to clause (a) of sub-sec. 1 in the shape of a second proviso which runs as follows: - "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 occasions within a period of eighteen months". Thus although the tenant could be protected against ejectment if the rent of any two months only were in arrears, if he deposited those arrears along with such costs and interest as has been provided by the newly added sub-sec. 4 within a date fixed which would not be beyond 15 days from, but exclusive of the date of order, he could not be so protected if he had made a like default on three occasions within a period of eighteen months. Now it is clear in this case that the defendant had not paid eighteen months' rent before the date of the suit. Thus he had not made a default within the meaning of newly added proviso 2 in payment of rent on three occasions only within a period of eighteen months, but on about nine occasions. Under these circumstances, the defendant was not entitled to protection under proviso 1 to clause (a) of sub-sec. 1 of sec. 13 even if the Amending Act applied. The learned Civil Judge was therefore perfectly justified in not giving this protection to the defendant appellant. The appeal has force and it is dismissed with costs to the contesting respondent. .;