R.S.KEJRIWAL,J - (1.) AS far as the dispute between the parties in this particular case is concerned it has been settled out of the court and no adjudication in favour of either of the parties is to be made. However, the point which has been referred to this larger Bench requires an answer to set at rest the controversy as to which view taken by the different Benches is correct as it arises quite often before the appellate courts. The point to be decided is whether the provisions of sections 13(3), 13(4) and 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter to be referred to as the Act) apply to the appeals as well or they are applicable only to the suits pending before the trial court.
(2.) SECTION 13(i) of the Act enumerates all the grounds on which the landlord would be entitled to evict a tenant and the circumstances under which the court can pass decree for eviction. If the tenant is ready and willing to pay the rent to the full extent allowable by the Act, no decree for eviction would be passed. But the ground of default would be available to the landlord if the tenant has neither paid nor tendered the amount of rent due to him for six months. Further protection is available to the tenant when the suit is on the ground of default in payment of rent. This further protection contained in section 13(3) onwards of the Act reads as under : "13(3) in a suit for eviction on the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section the court shall on the first date of hearing or on any order date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record personally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six per cent per annum from the date when such amount was payable up to the date of determination: Provided that while determining the amount under this sub-section the court shall not take into account the amount of rent which was barred by limitation on the date of filing of the suit. (4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period up to which determination has been made by the fifteenth of each succeeding month or within such further time not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3). (5) if a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. (6) if a tenant makes deposit or payment as required sub-section (4) no decree for eviction on the ground specified in clause (a) of sub- section (1) shall be passed by the court against him: Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefits or benefit under section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of the accommodation for six months. (7) if in any suit referred to in sub-section (3), there is any dispute as to the amount of rent payable by the tenant, the court shall decide the dispute finally at the time of decision of the suit and may, at that time pass such orders regarding costs or interest, as having regard to the circumstances of the case it deems fit. (8) in case at the time of decision of the suit - (a) the court finds that the amount of rent provisionally determined by it under sub-section (3) and deposited in court or paid to the landlord under sub-section (4) is less than the amount of rent finally decided as payable by the tenant the Court shall pass a decree for the balance amount against the tenant, (b) the court finds that the amount determined and deposited or paid as aforesaid in excess of the amount of rent finally decided as payable by the tenant the court shall, in the event of passing a decree for eviction against the tenant on ground other than that set forth in clause (a) of sub-section (1), also pass a decree in favour of the tenant for such excess amount deposited or paid by him and in the event of dismissing the suit for eviction it shall direct in the decree that such excess amount will be adjusted by the landlord against future rent payable by the tenant. 13(A) - Special provisions relating to pending and other matters. Notwithstanding anything to the contrary in this Act as it existed before the commencement of the amending Ordinance or in any other law :- (a) no court shall, in any proceeding pending on the date of commencement of the amending Ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant (b) and pays to the landlord, or deposits in court, within such time such aggregate of the amount of rent in arrears, interest thereon and full costs of the suit, as may be directed by the court and in accordance with that clause; (b) in every such proceeding, the court shall on the application of the tenant made within thirty days from the date of commencement of the Amending Ordinance notwithstanding any order to the contrary determine the amount of rent in arrears up to the date of the order as also the amount of the interest thereon at six per cent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed as aforesaid the proceeding shall be disposed of as if the tenant had not committed any default; (c) the provisions of clauses (a) and (b) shall mutatis mutandis apply to all appeal or application for revisions, preferred or made, after commencement of the Amending Ordinance, against decrees for eviction passed before such commencement with the variations that in clause (b), for the expression "from the date of the commencement of the Amending Act", the expression "from the date of the presentation of the memorandum of appeal or application for revision" shall be substituted; (d) no court shall in any proceeding pending on the date of commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction solely on the ground that due to the death of the tenant as defined in clause (vii) of section 3 as it stood before the commencement of the amending Ordinance, his surviving spouse, son, daughter and other heir as are referred to in sub-clause (b) of clause (vii) of section 3 were not entitled to the protection against under this Act as it stood before the commencement of the amending Ordinance; (e) no decree for eviction passed by any court before the commencement of the Amending Ordinance shall, unless the same already stands executed before such commencement, be executed against the surviving spouse, son, daughter and other heir as are referred to in sub-clause (b) of clause (vii) of Section 3 if such decree was passed solely on the ground as is referred to in clause (d) and such decree shall be deemed to be a nullity as against them; and (f) the provisions of clause (d) shall mutatis mutandis apply to all appeals, or applications for revisions preferred or made, after the commencement of the Amending Ordinance; Explanation : For the purpose of the section, (a) "Amending Ordinance" means of Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1950; (b) "proceeding" means suit, appeal or application for revision." The substance of these provisions is that in a civil suit after filing of the written statement and before framing of issues the court has to provisionally determine the amount of rent to be paid by the tenant along with interest and in case the tenant pays the provisional amount determined by the court and further pays or deposits the rent, month by month by the 15th of each succeeding month or within such further time not exceeding 15 days as may be extended by the court, then no decree for eviction on the ground of default shall be passed by the court. However, if the tenant fails to deposit the provisional rent determined or fails to pay the monthly rent by the due date, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. The further provision is that if the tenant has once obtained the benefit of the provision of section 13(5) of the Act in respect of any accommodation and he again makes a default in payment of rent of that accommodation for six months, then he would not be entitled to this protection. If there is any dispute about the amount of rent payable the same shall be decided at the time of final decision of the suit and if less amount has been paid then decree for balance shall be passed and if the excess amount has been paid then the excess amount shall be adjusted against the future rent.
(3.) THE question to be decided is whether the tenant has to deposit the monthly rent as provided in section 13(4) of the Act month by month subsequent to the period for which the determination has been made only during the pendency of the suit or during the pendency of the appeal also and in case he fails to deposit this amount during the pendency of appeal can his defence against eviction be struck out. The existing decisions of this court on this subject may be looked into before coming to the decisions of the other High Courts and the Supreme Court.;