MAHESHWARI, J. - (1.) THE plaintiff-petitioners have submitted this writ petition being aggrieved of the order dated 16. 9. 2004 whereby the District Judge, Bikaner allowed Civil Appeal (Order) No. 52/2004 filed by the defendant-tenant and set aside the order dated 9. 2. 2004 passed by the Trial Court striking out defence against eviction because of delay in deposit of the amount of rent.
(2.) BRIEF facts relevant for determination of the questions involved in this writ petition are that the plaintiff-petitioners have filed a suit against the defendant-Respondent No. 2 for recovery of arrears of rent and for eviction, inter alia, on the ground of default. In accordance with the requirements of Section 13 (3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (`the Act' hereinafter), provisional determination of rent was made on 17. 5. 1995 and the defendant was required to make payment of the determined amount and so also future monthly rent. According to the petitioners, the respondent-tenant deposited the rent for some time but after June 1998 committed several defaults in depositing the rent including that of the months of July 1998, January 1999, January 2003 and February 2003. The plaintiffs moved an application on 5. 4. 2003 (Annexure 2) under Section 13 (5) of the Act stating that monthly rent for several months was not deposited in time and the defendant-tenant having committed default, his defence against eviction was liable to be struck out. The defendant submitted by way of an application (Annexure 3) that the rent of the month of July 1998 was deposited in the bank account on 20. 8. 1998 and that of January 1999 on 16. 2. 1999; and the rent of the months of January and February 2003 was received by the plaintiff Om Prakash on the assurance of settlement out of Court and he assured to make deposit in the bank account; and when the same was not deposited by him, defendant-tenant had again deposited the rent in the month of March. It was submitted that there was a delay of five days and two days respectively for the rent of July 1998 and January 1999 and this mistake occurred for the plaintiff regularly entering into negotiations and the defendant being engaged in service work, it was condonable under Section 13 (4) of the Act and that the rent of the months of January and February 2003 has been received in cash by the plaintiff Om Prakash. The plaintiff submitted a reply (Annexure 4) to the application contending that the delay in deposit of the rent stands admitted with the reply of the defendant; that the parties were not on talking terms and rent for the months of January and February 2003 was not given by the defendant to the plaintiff nor there were any negotiations for settlement. The learned Trial Court proceeded to consider the matter by the order dated 9. 2. 2004 (Annexure 5) and observed that it was an admitted case of the defendant-tenant that he has made defaults in deposit of rent despite orders of the Court and found that rent of the month of July 1998 was deposited with five days' delay and that of January 1999 with one day's delay and the reasons assigned by the defendant were not convincing. The rent of the months of January 2003 and February 2003 was deposited on 31. 3. 2003 and, therefore, there was a delay of about 1 1/2 months for the rent of the month of January 2003 and of fifteen days for the rent of the month of February 2003. The reason for these defaults as stated by the defendant was not accepted because the defendant was regularly depositing the rent in the plaintiff's Bank Account No. 8299, and it was not acceptable that the plaintiff would receive the amount of the rent in the name of some settlement; and yet, if any such amount was paid, the defendant would have definitely obtained a receipt thereof and it was not expected that the defendant would provide some lacuna to the plaintiff which could be taken benefit of. The application submitted by the defendant was not found worth acceptance and on the other hand, the application filed by the plaintiff under Section 13 (5) of the Act was accepted and defence against eviction was ordered to be struck out. The defendant took an appeal against the order dated 9. 2. 2004 and the learned District Judge proceeded to decide the appeal by the impugned order dated 16. 9. 2004 (Annexure 6 ). The learned appellate Judge firstly considered the default for the months of July 1998 and January 1999 of five days and one day respectively; and with reference to the decisions of this Court, found that condonation of delay should be liberally allowed and the delay aforesaid was ordered to be condoned. Thereafter, the learned appellate Judge observed that the rent deposited on 31. 3. 2003 in relation to the months of January 2003 and February 2003 suffered from delay beyond 15 days and, therefore, it was held that the amount of rent for these months was not deposited in time. Thereafter, learned Judge proceeded to consider as to whether defence against eviction should have been struck out for this delay or not ? Learned Judge referred to several decisions cited by both the parties including that of the Hon'ble Supreme Court in the case of Nasiruddin vs. Sitaram 2003 (1) WLN 707 (SC) = (RLW 2003 (2) SC 315)cited by the plaintiff but thereafter, abruptly, observed that having gone through all the decisions and facts of the case, he was of opinion that it was not necessary to strike out the defence of the defendant. Litigation was pending since the year 1994 and the defendant was regularly depositing the rent and only for the months of January and February 2003 it was deposited on 31. 3. 2003 but it was a bona fide default and not committed intentionally or with any oblique motive and, therefore, with reference to the decision in Jagannath vs. Heerachand, 2001 DNJ 431 (Raj) observed that defence against eviction ought not to have been struck out. On these considerations, learned Judge proceeded to accept the appeal and to set aside the order dated 9. 2. 2004. Assailing the appellate order dated 16. 9. 2004, learned Counsel for the plaintiff-petitioners vehemently contended that the entire approach of the learned District Judge has been from an altogether wrong angle and in view of the decision of the Hon'ble Supreme Court in Nasiruddin's case (supra), the other decisions relied upon by the learned Court below are no longer a good law and power of condonation of delay having not been conferred by the Statute could not have been exercised; and the default in payment of rent of the month of January 2003 being of about 45 days, question of condonation of delay or enlargement of time does not arise. Learned Counsel for the respondent attempted his best to support the impugned order with the submissions that for a valid order striking out defence against eviction, it is required to be held that the tenant is guilty of contumacious conduct and of committing wilful default. Bona fide default and that too for the circumstances as set out by the defendant ought not to be visited with the penalty of striking out defence altogether and rendering the tenant defenceless. Learned Counsel referred to a decision of Hon'ble Supreme Court in M/s. Aero Traders Pvt. Ltd. vs. Ravinder Kumar, 2005 (1) WLC 200 (SC ).
(3.) HAVING heard learned Counsel for the parties and having examined the record with reference to the law applicable, this Court is clearly of opinion that the impugned order dated 16. 9. 2004 cannot be sustained being squarely contrary to the statutory mandate and so also the dictum of the Hon'ble Supreme Court. A reference to the facts of the case makes it apparent that so far the rent for the months of January and February 2003 is concerned, the same has admittedly been deposited on 31. 3. 2003 and the learned Courts below have concurrently found this delay to be beyond the extendable period of 15 days that cannot be condoned. The learned appellate Judge has also recorded a specific finding that the rent for the months of January and February 2003 was not deposited within the time prescribed by the Statute. The learned appellate Judge has held :- ****** However, thereafter learned appellate Judge has proceeded to consider the question as to whether defence against eviction be struck out or not and referred to several decisions cited by both the parties, including the decision of the Hon'ble Supreme Court in Nasiruddin's case (supra), and observed that the deposit on 31. 3. 2003 was a bona fide default and defence against eviction ought not to have been struck out. The observations by the learned appellate Judge read as under :- ********* ;