GOYAL, J. - (1.) THIS is the second appeal by the defendants tenants.
(2.) THE plaintiff-respondent filed a suit for arrears of rent and eviction in September 1989 with the averments that late Shri Bhagwati Prasad was a tenant in one room, one kothari, kitchen and bath room in House No. 24/273 situated in Chand Baori, Ajmer. Monthly rent agreed upon was Rs. 21/ -. THE original landlord was Shri Ganga Sahai. THE plaintiff purchased this house from Shri Ganga Sahai vide registered sale-deed dated 20. 7. 1982 and the defendants-wife (since deceased) son and daughter of the original tenant Bhagwati Prasad were informed. Eviction was sought on the grounds of default in payment of rent, the premises have become unsafe and unfit for human habitation, reasonable and bonafide requirement for plaintiff's son Sandeep and alternative accommodation acquired by the tenants. Vide written statement having admitted the tenancy, all the grounds of eviction were denied. Issues were framed. Evidence was recorded. Learned Civil Judge (Jr. Div.) Ajmer District, Ajmer, vide judgment dated 19. 12. 1998 decided all the grounds in plaintiff's favour and thus decreed the suit, First Appeal No. 15/1999 filed by the defendants was also dismissed by Additional District Judge No. 1 Ajmer on 19. 10. 2004. I have heard learned counsel for the parties. As per Section 100 C. P. C. second appeal shall lie to the High Court if the High Court is satisfied that the case involves a substantial question of law and the appeal shall be heard on the question so formulated by the Court. Since the question of partial eviction as provided under Section 14 (2) of the Rajasthan Premises (Control of Rent & Eviction) Act 1950 (in short `the Act') was not decided by the two courts below, learned counsel for the plaintiff respondent abandoned one of the grounds of eviction i. e. , reasonable and bonafide requirement of the plaintiff. Remaining grounds of eviction are default in payment of rent, the premises being unsafe and unfit for human habitation and acquisition of alternative accommodation by the tenants. Section 13 (1) of the Act provides that in case the tenant has neither paid nor tendered the amount of rent due from him for six months, the landlord is entitled to a decree of eviction. In para 5 of the plaint, the plaintiff's case was that rent from 20. 7. 1982 has not been paid. In para 5 of the written statement it was stated that the rent from July, 1982 to December 31, 1989 has already been deposited under Section 19-CC of the Act. Both the courts below negatived the plea of the defendants.
(3.) LEARNED counsel for the appellants contended that the rent deposited under Section 19-CC of the Act should have been adjusted against the arrears of rent and thus there was no default of six months at the time of filing the suit. Reliance is placed upon M/s. Sarwan Kumar Onkar Nath vs. Subhash Kumar Agarwal, 1987 (2) R. C. R. 502 wherein the Hon'ble Supreme Court held that when the tenant paid two months rent in advance at the time of taking the tenancy, the landlord could adjust the advanced rent towards the arrears of rent. Similar view was taken by this Court in Shanti Lal vs. Shiv Pal Singh 1987 (1) R. C. R. 119 = 1987 RLW 208. LEARNED counsel for the respondent contended that the respondents failed to prove the compliance of the provisions of Section 19-A of the Act before depositing the advance rent in the court and further he has given no evidence for the compliance of Section 19-CC of the Act and there is no ground to interfere with the concurrent findings of the two courts below. It was also contended that the Trial Court determined the provisional rent under Section 13 (3) of the Act but the defendants did not pay the monthly rents thereafter, hence defence against eviction was struck out vide order dated 26. 8. 1995 and thus the tenants were rightly held not to be entitled for the benefit of first default. I have considered the rival submissions. This fact has not been disputed that provisional rent under Section 13 (3) of the Act was determined on 6. 3. 1992 and the defence eviction for struck out on 26. 8. 1995. The important fact is that whether there was statutory default in payment of rent at the time of the institution of the suit ? As per the provisions of Section 19-CC of the Act it is provided that notwithstanding anything contained in Section 19-A, a tenant may, at his option deposit with the court rent in advance for a period of not exceeding twelve months at any one time for payment thereof to the landlord as and when it becomes due and to such deposit the provisions contained in sub-section (4) to (8) of Section 19-A and in Sections 19-C, 19-D shall as far as possible and with necessary modifications, apply. A perusal of the written statement as well as the statement of the defendant Chandra Bhan makes it clear that neither there is plea nor evidence for compliance of all these provisions as stated hereinabove. Therefore, the defence against the eviction was rightly struck out. With regard to second ground of eviction i. e. , that the premises have become unsafe or unfit for human habitation, learned counsel for the appellants contended that it was the case of the plaintiff landlord that concerned Municipal Council issued a notice in this regard but the same was not produced and there is no evidence to prove that the room on rent was in an unsafe condition or unfit for human habitation. I have considered the said submissions and am of the view that there is no merit in the same. In para 6 of the plaint it is pleaded that this building is in a very bad condition and may fall at any time and Municipal Council, Ajmer, issued a notice to the plaintiff on 21. 10. 1988 in this regard. In para 6 of the written statement it is stated that the plaintiff never carried out any repairs and rented portion with the defendants is in good condition and if it is repaired it would be in a very better position. A careful perusal of the plea in written statement goes to show that the facts stated in para 6 of the plaint have not been specifically denied. Rather the defendants admit that this building requires repair. P. W. 1 supported the facts stated in the plaint while the defendant himself did say nothing on this issue. Therefore, mere non filing of the notice given by the Municipal Council is no ground to set- aside the concurrent findings of the two courts below on this issue. It is also significant to say that at no point of time the defendants ever prayed for production of any such notice. Therefore, no interference by this Court is called for on the decision of this issue also. ;