MITAL, C.J. - (1.) RAMA Kishan was admittedly owner of the shop in dispute. After his death, dispute about the shop arose between his two sons Ganpat Lal on one side and Gulab Chand on the other. Gulab Chand filed a suit for partition of the shop and separate possession of his share as Gulab Chand was in possession of the entire shop and was not prepared to amicably ***Page No. 436 to 437*** was condoned. It was held that unless there was willful and deliberate default, the delay should be condoned as non condonation of delay would result into serious cosequence of striking off of the defence of the tenant.
(2.) On the basis of the aforesaid decision, there would have been no problem for me in condoning the delay of three days as according to the tenant's affidavit he gave the amount to his counsel on 18.08.1987 and for the month of July 1987 the amount had to be paid by 15th of August, 1987. It is the case of the tenant that counsel failed to deposit the amount soon after 19th August. The counsel's affidavit is is on record. He admits that he got the amount on 18th August but stated that he was under the impression that he had deposited the amount and when it was brought to his notice that it was not deposited he deposited the amount. There are some important facts to be noticed which may show either the party or his counsel committed willful and deliberate default in making the deposit. On 14th Sept. 1987, the landlord filed an application clearly stating therein that rent for the month of July has not been paid nor deposited and, there fore, the defence of the tenant be struck off. That application was recieved by the counsel for the tenant on 14th Sept. 1987. Record is before me and it shows that the counsel for the tenant had receiced the copy of that application on that very day, refrence may be made to page B22/1 to B22/4, therefore, Sept.1987 it became clear to the counsel for the tenant that despite the fact that he had not received the amount on 19.08.1987, he had not deposited the amount by 14th Sept. 1987 and he should have taken immediate steps either to pay to the landlord or his counsel and if they refuse to receive it,to deposit in Court. Instead of doing that, application for deposit was filed as late as 6.11.1987 and after court gave the permission, the amount was deposited. In view of the Supreme Court decision, I am prepared to condone the delay from 15.08.1987 to 14th Sept.1987 but from 14th Sept.1987 till 6th Nov.1987 there is no justifiable reason to condone the dealay, that is why, I agree with the courts below that there was willful an deliberate default on the part of the tenant or his counsel and it was not a simple case of forgetfulness of the counsel for the period from 14th Sept. till 6th Nov. 1987. The amount was actually deposited on 15th January 1988 but under the procedure law of the State of Rajasthan the deposit is permissible only when court gives an order for deposit and on the application dated 6th Nov.1987, the permission was given late and, therefore, the deposit was also late. The delay between 6-1- 1987,and 15.1.88 is, therefore, not material. For the reasons recorded above, I decline to ineterfere with the orders of Courts' below and dismiss the revision. Record of the case be sent to the trial court forthwith. The parties are directed to appear before the trial court on 5.12.1994. ;