CHOPRA, J. - (1.) THIS appeal is directed against the judgment of the learned Addl. District Judge, Bhilwara dated 16. 5. 1981 whereby the learned first appellate court has held that the defendant-respondent Pyar Chand has not committed any second default and so, he cannot be evicted from the suit-premises.
(2.) IN this case, the learned trial court i. e. learned Munsif & Judicial Magistrate, Bhilwara vide his judgement dated 6. 1. 1981 has held that the defendant has already taken the benefit of s. 13 (4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short 'the Act') and, therefore, he being a second defaulter, he is liable to be evicted from the suit premises. In this case, the following substantial question of law has been framed on 2. 12. 1981 :- Whether on the facts and in the circumstances of the case, the learned Addl. District Judge, Bhilwara was not right in holding that the tenant respondent did not commit default in payment of rent for the period between 1. 1. 1978 to 31. 8. 1978 ? If the answer to this question is in the affirmative, whether the plaintiffs-appellants are entitled to evict the defendant as it is a second default?" I have heard Mr. R. C. Maheshwari, the learned counsel appearing for the plaintiffs-appellants as M/s. N. P. Gupta and R. Chouhan for the defendant-respondent and have carefully gone through the record of the case. In this case, admittedly defendant-respondent Pyarchand is the tenant of plaintiffs-appellants and tenancy start from first of each month and the monthly rent payable is Rs. 70/ -. It is also not disputed that earlier a suit on the basis of default was filed and that suit came to be decreed vide judgment dated 16. 5. 1977 passed by the learned Addl. Munsif & Judl. Magistrate, First Class, Bhilwara in case No. 207/77, wherein the defendant admitted his first default and wanted to take benefit of the provisions of s. 13 (4) of the Act. He had deposited a sum of Rs. 1021/- as arrears of rent and, therefore, giving him the benefit of s. 13 (4) of the Act, the suit for eviction filed against him was dismissed. Now, it has been claimed that the tenant-defendant- respondent has committed the second default in not paying the rent from 1. 1. 1978 to 31. 8. 1979. However, the defendant- respondent has taken the plea that he has always been ready to pay the rent but the plaintiffs-appellants did not accept the rent. Not only he paid two months rent to him which was accepted by him but later on, he returned back that amount of rent to him after 2-3- days at the behest of his father and, thereafter, he deposited the rent under s. 19-A of the Act in the Court. According to the defendant-respondent rent from 1. 1. 1978 to 30. 6. 1978 was deposited by him in Court under s. 19- A of the Act on 26. 6. 1978 and the rent for the months of July to October, 1978 was deposited by him on 6. 11. 1978 and the rent for the months of November a. 12. 1978 Was deposited by him on 18. 12. 1978 and, therefore, he has committed no default. It was pleaded that the rent was offered to the plaintiff, which was accepted by him but it was returned back to him after 2-3 days. It has not been stated in para 3 of the written statement as to whether this has happened prior to the deposit of rent upto December 1977 under s. 19a of the Act or it has happened as regards the deposit of rent for the months of January a. 02. 1978. This assertion has been probably intentionally kept vague. However, in para 12 of the written statement, it has been clarified that the rent for the months of January and February 1978 was paid to the plaintiff but the plaintiff after 2-3 days returned it back to him at the behest of his father. Whether this rent was paid to plaintiff Naresh Chandra or plaintiff Suresh Chandra, it has not been specifically disclosed in the written statement filed on behalf of the defendant-respondent.
(3.) ABOUT this plea, Issue No. 2 was framed. It has been contended by Mr. Maheshwari that the plaintiff-appellant gave a notice to the defendant that he has committed default in payment of rent upto 1. 8. 1978 on 10. 8. 1978. A reply to this notice has also been sent to the plaintiff by the defendant on 28. 8. 1978, in which, it has been stated that the tenant-defendant-respondent has tried to pay the rent number of times to the plaintiff-appellant but he has not accepted the rent intentionally because he wants to harass the defendant-tenant. He has further stated that the matter went to the extent that initially the rent was accepted but it was returned after 2-3 days and thereafter, the rent was deposited in the court. Application Ex. A. 2 dated 14. 4. 1977 was filed by Shri P. L. Ajmera, Advocate and this application pertains to the deposit of rent under s. 19-A of the Act regarding rent for the months of May, June a. 07. 1977. Application Ex. A. l dated 27. 5. 1978 has also been filed by Shri P. L. Ajmera, Advocate under s. 19-A of the Act for depositing the rent for the months of January 1978 to June 1978. In para 3 of this application, it has also been stated that although the defendant were ready to pay the rent but the plaintiffs in order to increase the rent were not ready to accept the rent and therefore, rent for these six months may be allowed to be deposited in the Court. It has not been mentioned in this application that the rent for two months was paid to (he plaintiff and it was accepted by him and after about 2-3 days, it was returned back to him. It has also not been mentioned in this application that at whose behest, rent of two months was returned back to him. This application is prior to the filing of the reply to the notice sent by the plaintiff before filing of this suit. This reply to the notice was sent on 27. 8. 1978 whereas this application is dated 27. 5. 1978. Be that as it may, when plaintiff Suresh Chandra entered in the witness box as P. W. I, it was suggested to him in his cross-examination that the rent for the months of February and March 1978 was paid to him. He has denied this fact and has stated that no such rent was ever paid to him. Now, when defendant Pyarchand entered in the witness box, he has stated that the rent for the months of January a. 02. 1978 was paid to the plaintiff and it was kept by him for 4 days and thereafter, plaintiff Naresh Chandra came and returned back that amount of rent and told him that they will not keep the rent with them and will get the shop vacated from him but when he was cross-examined, he- has changed his version and has stated that he has paid the rent to plaintiff Suresh Chandra and plaintiff Suresh Chandra alone came to him and returned back the amount of rent for two months to him. Thus, the statement of defendant Pyarchand in his cross-examination is contradictory to the statement given in his examination in-chief. Defendant Pyarchand has further stated that before depositing this amount of rent in Court, he sent 5-6 money orders to the plaintiff but copies of those money orders sent to the plaintiffs and the receipt showing that money orders were not received by the plaintiff have not been filed. Thus, this contention of defendant-respondent Pyarchand that he has paid the rent for the months of January a. 02. 1978 to the plaintiff, which was kept for 4 days and was returned back to him appears to be an after though plea. There is no mention about this fact in his application filed before the court on 27. 5. 1978. Moreover, the statement of defendant Pyarchand is also contradictory and he has not disclosed as to home, the rent was paid by him, which was returned back to him after 2-3- days at the behest of his father. As stated above, in his examination-in-chief defendant Pyarchand has stated that rent for the two months was paid to plaintiff Nareshchand whereas in his cross-examination, he has stated that it was paid to plaintiff Suresh Chandra and was returned back to him by Suresh Chandra. Such an evidence cannot be believed. The evidence of D. W. 2 Mst. Jhamku, who is a maid servant cannot be believed. Mst. Jhamku (D. W. 2) has stated that two months rent was paid and it was returned back by plaintiff Suresh Chandra. In view of the discussion made hereinabove, I am firmly of the view that the evidence of D. W. 2 Mst. Jhamku has rightly been disbelieved by the learned trial court because firstly when the defendant has failed to prove that the rent has ever been offered to the plaintiff and it has been sent through money orders and secondly, the defendants has not asked the plaintiff to disclose his Bank A/c where the amount of rent can be deposited. S. 19-A of the Act provides that every tenant shall pay rent within the time fixed by the contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Sub-S. (2) of S. 19-A further provides that every tenant who makes a payment on account of rent shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent. Sub-s. (3) of S. 19-A further provides that a tenant may, apart from personal payment of rent to the landlord, remit or deposit rent by any of the following methods : (a) he may remit the amount of any rent due from him by postal money order at the ordinary address of the landlord; or (b) he may by notice in writing require the landlord to specify within ten days from the date of receipt of the notice by the latter, a bank and account number into which the rent may be deposited by the tenant to the credit of the landlord. If the landlord specifies a bank and account number, the tenant shall deposit the rent in such bank and account number and shall continue to deposit in it any rent which may subsequently become due in respect of the premises ; or (c) where he has remitted the rent by postal money order under Clause (a) and the money order is received back by him under a postal endorsement of refusal or unfound and where the landlord does not specify a bank and account number under clause (b) or where there is bonafide doubt as to the person or Persons to whom rent is payable the tenant may deposit such rent with the court within fifteen days of the expiry of the period of ten days referred to in clause (b) and in the case of such bonafide doubt as aforesaid, within fifteen days of the time referred to in sub-s. (1) and further continue to deposit with the Court any rent which may subsequently become due in respect of the premises. Thus, either the rent is to be paid in person or is to be sent by money order or it may be deposited in the bank account of the landlord. It is only when the rent is not accepted either personally or through money orders or the landlord does not specify the bank and his account number then the rent can be deposited in the Court under s. 19-A of the Act. Unless these conditions are complied with, it is not a valid tender of rent and deposit of rent under s. 19-A of the Act will not absolve the tenant of his responsibility to pay the rent. This is what has been held by a learned single Judge of this Court in M/s. Batliboi & Company Pvt. Ltd. vs. Govind Narain (1) that a tenant without taking recourse to the modes mentioned in s. 19-A of the Act cannot deposit the rent in court under s. 19-A of the Act. ;