TATIA, J. - (1.) THIS second appeal is against the judgment and decree passed by the first appellate court dated 31. 3. 1984, allowing the appeal of the tenant-defendant preferred against the decree for eviction dated 5. 7. 1982.
(2.) EARLIER landlord Badri Narayan (appellant No. 1) filed on suit for eviction of his tenant Ratan Lal (deceased) which was registered as C. O. Suit No. 832/73. The ground for eviction of the tenant was only default in payment of rent. The tenant was protected from his eviction otherwise than on the ground as provided under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short "the Act of 1950" ). As per Section 13 (1) (a) of the Act of 1950, in case of default in payment of rent for six months by the tenant, the landlord can institute the suit for eviction of the tenant but one opportunity is given to the tenant to avoid the eviction by making payment in the court as determined by the court under Section 13 (3) read with sub-section (4) of the Act of 1950. During the pendency of the C. D. Suit No. 832/73, insertion of Section 13a in the Act of 1950 gave an opportunity to the tenant to deposit the entire arrears of rent along with interest at the rate of 6% per annum and the cost of the suit. By this offer by the tenant by moving appropriate application and on determination of the arrears of rent by the civil Court, the tenant is required to deposit the determinated rent under sub-section (b) of Section 13a of the Act of 1950. Sub-section (b) of Section 13a provides that in case the tenant pays the determined arrears of rent, interest and the cost within the stipulated period which shall not be exceeding 90 days, the eviction proceeding against the tenant shall be disposed of as if the tenant has not committed any default. Suit No. 832/1973 It appears from the facts of the C. O. Suit No. 832/73 that before coming into force of Section 19a, the rent was determined by the civil court but the defendant failed to deposit the rent in time, therefore, his defence was struck off by the civil court by order dated 7. 4. 1974. The appeal against the said order was also dismissed. But since the tenant got further opportunity because of the amendment and insertion of Section 19a in the Act of 1950, therefore, the defendant submitted application under Section 13a (a) of the Act of 1950 and prayed that he is ready to pay all arrears of rent, interest and cost of the suit. On this application, the trial Court determined the rent under sub-section (b) of Section 13a by order dated 31. 10. 1975 as arrears of rent, Rs. 230. 25 as interest and the cost of the suit of Rs. 290/ -. This order was amended by another order of the trial Court dated 18. 12. 1975. By this, the interest was increased to Rs. 290/- from Rs. 230. 25 and cost of the suit was decreased to Rs. 244. 50 in place of Rs. 290/ -. The trial Court directed the defendant to pay Rs. 2617/- by 23. 12. 1975. Said rent was deposited in the trial Court on 20. 12. 1975. It will be worthwhile to mention here that the suit was not disposed of on 20. 12. 1975, the date on which the defendant deposited the rent nor it was disposed of on 23. 12. 1975, the date by which the defendant was permitted to deposit the rent under sub-section (b) of Section 13a of the Act of 1950. The suit continued and defendant's evidence was closed on 26. 2. 1976. The plaintiff closed his rebuttal evidence on 19. 7. 1976. It will be further relevant to mention here that before the trial Court, the plaintiff himself submitted an application for striking off the defence of the tenant on the ground that the tenant did not deposit the rent month by month obviously for the period after 31. 10. 1975 and till the suit was pending. Ultimately the trial Court dismissed the suit No. 832/1973 of the plaintiff after recording finding that the rent deposited by the tenant (respondent) for the period beyond the period for which the rent was determinated by the trial Court is not valid payment of rent to the landlord and the tenant shall not be entitled to take benefit of said deposit of rent. However, the trial Court still held that if plaintiff wishes, he may be free to withdraw the rent deposited by the tenant. Those observation and findings are one of core issue involved in this appeal arising out of subsequently filed suit No. 405/1976 by the landlord for eviction of the same tenant respondent on the ground of second default in payment of rent. Present Suit No. 405/1976 The landlord thereafter instituted this present second suit on the ground that the defendant did not pay the rent to the landlord from 1. 11. 1975 to 30. 6. 1976 and thereby the defendant had committed default in terms of sub-clause (a) of sub-section (1) of Section 13 of the Act of 1950. Solely on this ground of second default, the plaintiff filed the suit for eviction in which the defendant took several pleas but for the purpose of deciding this appeal, the only plea relevant is that the defendant deposited the rent in earlier C. O. Suit No. 832/73 and the trial court while dismissing the suit of eviction, allowed the plaintiff to deposit the rent in the suit No. 832/1973 and the plaintiff was given option to withdraw the rent by the court in C. O. Suit No. 832/1973, therefore, according to the defendant, no rent of more than six months was due in the tenant on the date of filing of the suit by the landlord. It is not in dispute that if the rent deposited by the tenant in C. O. Suit No. 832/73 is considered as valid payment or valid tender of the rent to the landlord then the tenant is not defaulter and no decree for his eviction can be passed. But if it is held that in view of specific provision under Section 19a which provides procedure for deposit of rent by the tenant in certain contingencies, no other mode can be adopted for payment of rent to the landlord by the tenant, then the tenant since admittedly has not followed the procedure as provided under Section 19a and did not deposit the rent under the said provision, therefore, he becomes liable to be evicted on the ground of default in payment of rent. The trial Court in the present suit, by its judgment and decree dated 5. 7. 1982 declared the tenant-respondent defaulter in payment of rent after holding that the deposit of rent by the tenant in C. O. Suit No. 832/73 for the period from 1. 11. 1975 onwards was not valid and legal deposit. However, the appellate court reversed the said finding by impugned judgment and decree dated 31. 3. 1984 and dismissed the suit of the plaintiff after holding the deposit of rent in C. O. Suit No. 832/73 for the period from 1. 11. 1973 as valid payment of rent to the landlord by the tenant. Hence this second appeal. The second appeal was admitted by this Court on 22. 8. 84 after framing the following substantial question of law:- " Whether in the facts and circumstances of the case, the learned Additional District Judge No. 1. Jodhpur, was not right in dismissing the suit on the ground that the defendant-tenant had deposited rent in Civil Original Suit No. 832 of 1979 and so the suit cannot proceed on the basis of the second defaults which are said to have been committed by the defendant in payment of rent. "
(3.) THE learned counsel for the appellant vehemently submitted that sub-section (b) of Section 13a very specifically provides that in case tenant wants to take benefit under Section 13a, he should apply to the court and pay landlord all arrears of rent, interest thereon and full cost of the suit, in case tenant applies then the court determines the arrears of rent under sub- section (b) of Section 13a and awards interest at the rate of 6% per annum and also determines the cost of the suit and directs the tenant to pay the amount so determined within such time, not exceeding 90 days which may be fixed by the Court. Sub-section (b) of Section 13a also provides that on such payment being made within the time fixed by the court, the proceeding shall be disposed of as if tenant had not committed any default. According to the learned counsel for the appellant, in view of the above unambiguous legal position, the tenant can deposit the rent as determined by the Court and not for the period beyond the period for which the rent was determined by the court. THE law also specifically provides that on payment of such determined rent, the proceeding (suit for eviction of tenant on the ground of default) shall stand disposed of. According to the learned counsel for the appellant, this Court in the case of Shyamlal and another vs. Upbhokta Sahakari Samiti, Jodhpur (AIR 1983 Raj. 133) held that the ground of Section 13 (1) (a) falls through the moment the tenant deposits the amount of rent and interest on the first day of hearing or within the time allowed by the Court. THE learned counsel for the appellant also relied upon another judgment of this Court delivered in the case of Siya Sadan vs. Sagar Mal & Ors. (1982 WLN 118) wherein this Court held that the ground of default disappears and becomes non-existent in the eye of law on account of payment of rent after its jurisdiction under Section 13a of the Act. The learned counsel for the appellant heavily relied upon the judgment of the Hon'ble Apex Court delivered in the case of Atma Ram vs. Shakuntala Rani (2005 (2) RCJ 10 (SC) 10), wherein according to the learned counsel for the appellant, the tenant deposited the rent under the provisions of the Punjab Relief of indebtedness Act, because of the reason that the arrears of rent fall within the definition of "debt" and the debtor had legal right to discharge his liability (debt) by depositing the debt (including the arrears of rent) in court under the provisions of said Debt Relief Act. Even the said deposit which was in court in a litigation between the landlord and tenant themselves was not considered as valid payment under the provisions of the Rent Control Act and the tenant was held defaulter. Therefore, according to the learned counsel for the appellant, the amount which has not been deposited where it should have been and when it should have been deposited, then that payment of rent cannot be valid payment of rent. Once the payment is not valid and legal, the tenant cannot claim that he has tendered or paid the rent to the landlord and, therefore, he is not defaulter. With the help of above authorities, the learned counsel for the appellant vehemently submitted that once the court determined the rent upto the period 31. 10. 1975 in earlier suit No. C. O. 832/1973, then the tenant was entitled to and could have deposited the rent upto the period 31. 10. 1975 in C. O. Suit No. 832/73 in view of the judgment of this Court delivered in the case of Siya Sadan's case (supra ). The provisions of Sections 13 (4), 13 (5) and 13 (6) cannot apply in a case where the tenant avails the benefit under Section 13a. Therefore, no future rent could have been deposited by the tenant in C. O. Suit No. 832/73, either under Section 13a or under any provision of Section 13 (4), (5) and (6) of the Act of 1950. Not only this but the decision between the parties in C. O. Suit No. 832/73 is final and binding, wherein it has already been declared that the rent deposited by the tenant is not valid and legal payment of the rent to the landlord, therefore, the defendant-tenant cannot dispute the finding recorded in C. O. Suit No. 832/73 and, therefore, the first appellate court committed error of law in holding the payment of rent by the tenant beyond 31. 10. 1975 in C. O. Suit No. 832/73 as valid and legal payment. ;