BHANDARI, J. - (1.) THIS is a Civil Second Appeal in a suit for ejectment and arrears of rent.
(2.) THE case of the plaintiff-respondent as set out in the plaint is that on 7th June, 1954 the defendant-appellant had taken on lease certain pucca structures standing on the land which had been purchased by the plaintiff from the defendant on a monthly rent of Rs. 7/- and had executed a rent-note. It is further alleged that the defendant paid Rs. 21/- as rent on 2.10.1954, but thereafter made default in payment of rent. THE plaintiff served a notice for ejectment on 26.3.1957 and then filed the present suit on 23.4.1957 for ejectment of the defendant and for payment of arrears of rent amounting to Rs. 220/- and for mesne profits till ejectment. THE defendant contested the suit denying that the plaintiff had purchased any land from him or that he had executed any rent-note. It was further alleged that the defendant was the servant of the plaintiff-respondent and he might have forged a document purporting to be a rent note. It was also stated that the land was an evacuee property and could not have been sold to the plaintiff. The case came up for hearing for the first time on 25.10.1957 before the trial court. On that day, the learned trial Judge passed an order under sec. 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter called 'the Act') that the defendant should pay by 9th November, 1957, a sum of Rs. 262/- as arrears of rent together with interest at the rate of 6 % per annum from the date of the suit till that date and Rs. 45/- as costs of the suit and the case was fixed for hearing on 4.11.1957. On that day, the plaintiff was examined under O.10, R. 2 C.P.C. and he gave details of the structures which were not mentioned in the plaint. The plaintiff was ordered to file the site plan. On 25.10.1957, an application was filed by the plaintiff under sec. 13(5) of the Act that the defendant had not paid the arrears of rent in pursuance of the order of the court dated 25.10.1957 and he may be ordered to deposit rent month by month. This application was decided by the learned Munsiff on 8.5.1958. The application of the plaintiff was allowed and it was ordered that the defendant should deposit in court rent of every month by the 15th day of the next succeeding month at the rate of Rs. 7/-per month. On the same day several issues were framed but some of the issues were later on deleted by the order of the court dated 15.7.58 as these issues raised a question of title which according to the trial court could not be raised in a suit for ejectment. On 21.7.58 the plaintiff made an application that the defendant's defence be struck off. This application was disposed of on 14.1.61 and it was ordered by the court that as the defendant had not complied with the order of the court passed on 8.5.1958 and had not deposited the rent, his defence be struck off. The case was adjourned to 19.1.1961. Even before the disposal of the application on 7.8.1958 the plaintiff had been examined as witness. On 19.1.61, another witness of the plaintiff Agarchand (P.W. 2) was examined. The counsel of the defendant was not permitted to cross-examine Agarchand as the defendant's defence had been struck off. The trial court heard arguments on that day and pronounced judgment on 23.1.61 decreeing the plaintiff's suit. The appeal by the defendant-appellant to the Senior Civil Judge No. 2, Jodhpur failed. The learned Judge of the lower appellate court held that the defence of the defendant was rightly struck off. He further observed that the order striking out the defence was appealable under sec. 22 of the Act and as no appeal had been preferred, this objection could not be heard in the appeal. The learned Judge also held that the rent note was proved to have been executed by the defendant by the evidence of Ramkumar (P. W. 1) and Agarchand (P. W. 2). Taking this view of the matter, the learned Judge of the lower appellate court dismissed the appeal. Hence this second appeal. In this appeal the main point for determination is whether the defence of the defendant was rightly struck off by the trial court by its order dated 14.1.1961. The defence of the defendant was struck off under sec. 13(5) of the Act. Sec. 13 of the Act as it stood on the date of the passing of the order striking out the defence ran, as follows - "13. Eviction of tenants. - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for any two months; (b) that the tenant has wilfully caused or permitted to be caused substantial damage to the premises; or (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court, has materially altered the premises or is likely to diminish the value thereof; or (d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he Was admitted to the tenancy of the premises or which is likely to affect adversely and substantially the landlord's interest therein; or (e) that the tenant has assigned, sub-let or otherwise parted with the possession of, the whole or any part of the premises without the permission of the landlord; or (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or (g) that the premises were let to the tenant for use as a residence by reason of his being in the service or employment of the landlord and that the tenant has ceased to be in such service or employment; or (h) that the premises are required reasonably and bonafide by the landlord - (i) for the use or occupation of himself or his family, or (ii) for the use or occupation of any person for whose benefit the premises held, or (iii) tor a purpose, or (iv) for philanthropic use, or (i) that the tenant has built, acquired vacant possession of or been allotted a suitable residence; or (J) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; (k) that the landlord requires the premises in order to carry out any building work - (i) at the instance of the State Government in pursuance of an improvement scheme or development scheme; or (ii) because the premises have become unsafe or unfit for human habitation, or (iii) upon the requisition of a local authority, or (1) that the landlord has been required by any authority under any law to abate the overcrowding of the premises. (2) The court may presume that premises let for use as a residence were or are sub-let by the tenant in whole or in part to another person, if it is satisfied that such person, not being a servant of the tenant or a member of the family of such servant, was or has been residing in the premises or any part thereof for a period exceeding one month otherwise than in commensality with the tenant. (3) For the purpose of clause (a) of sub-sec. (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has remitted such amount to the landlord by postal money order at his ordinary address. (4) In a suit for eviction on the ground set forth in clause (a) of sub-sec. (1), the Court shall on the first day fixed for the hearing thereof by order determine the amount of rent due from the tenant, which is in arrears, up to the date of such order as also the amount of interest thereon at the rate of six per centum per annum and of the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amounts so specified on or before a date fixed thereby, which shall not be beyond the fifteenth day from, but exclusive of, the date thereof. If on or before the date so fixed for payment, the tenant deposits in Court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord. Provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub-section if he has made default in the payment or tender of the amount of rent due for any two months on there occasions within a period of eighteen months. (5) If, on the first day fixed for the hearing of such a suit, the tenant expresses his intention to contest the same or if he fails to make the payment referred to in sub-sec. (4), the Court shall proceed with the hearing of the suit and may, on the application of the landlord made at any stage of the suit and after giving an opportunity to the parties to be heard, make an order requiring the tenant to deposit in Court month by month the rent at the rate at which it was last paid. On his failure to deposit the rent for any month by the fifteenth day of the next following month, the Court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit." It may be pointed out that sec. 13 grants special protection to a tenant against Lis eviction if he is otherwise liable for eviction. This protection is available to a person who is a tenant of the premises as defined under the Act in the area to which the Act is applicable and it is not available to all the tenants in the State. Sub-sec. (1) of sec. 13 prohibits a Court from passing any decree or order in favour of a landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent liable by the Act, unless the conditions mentioned in the sub-cls. (a) to (k) are found to exist. These conditions are of diverse nature. They take into account that the tenant had been committing default in the payment of rent as mentioned in cl. (a), that the tenant has wilfully caused or permitted to be caused substantial damage to the premises as mentioned in cl. (b), that the tenant has made constructions or created nuisance as mentioned in cls. (c) and (d), that the tenant has assigned, sub let or has otherwise parted with the possession of the whole or any part of the premises without the permission of the landlord, as mentioned in cl. (e), that the tenant has renounced his character as tenant, or denied the title of the landlord and the landlord had not waived or condoned the conduct of the tenant as mentioned in cl. (f), that the tenant has let out premises by the landlord by reason of his being in the service or employment of the landlord and the tenant has ceased to be in such service or employment and the tenant has ceased to live on the premises let out to him as mentioned in cl. (g) and that the tenant had built, acquired vacant possession or had been allotted a suitable residence as mentioned in cl. (i). Cls. (h) and (k) take the need of landlord into account. Cl. (h) provides for the cases in which the landlord required premises reasonably and bonafide for the purposes mentioned in that clause and cl. (k) provides for cases in which the landlord requires the premises in order to carry out any building work as provided in that clause. Now it is clear that sub-sec. (1) of sec. 13 can only be applied when it is proved that the person in whose favour a decree is to be passed is in fact a landlord. It follows that for the application of sub-sec. (1) it is necessary that the relationship of landlord and tenant must be established between the contesting parties. Before applying sub-sec. (1) of sec. 13, there must be determination by the court that the person against whom any decree is claimed is the tenant of the plaintiff against whom the provisions of sec. 13(1) can be applied. If the tenancy is not proved, the suit shall be dismissed without applying sub-sec. (1) of sec. 13 at all. Again, even if the tenancy is proved, but the tenancy has not been terminated in accordance with law as provided in the provisions of the Transfer of Property Act, or in accordance with any other law, there shall be no need for application of sub-sec. (1) of sec. 13, as the tenant cannot be evicted from the premises under general law. Sub-secs. 2 and 3 are merely explanatory of the cases falling under sub-sec. 1. Sub-sec. (4) provides an additional provision for protecting the tenant even when he has incurred liability for ejectment under sub-sec. 1 of sec. 13. Under sub-sec. 4, the court is directed to determine, by passing an order, the amount of rent due from the tenant which is in arrears upto the date of such order and afford him an opportunity to pay the same, and by doing so, avoid his liability for ejectment on the ground of non-payment of rent. There is some controversy on the interpretation of sub-section in this Court, which is not material for the purposes of this case as I am dealing with sub-sec. 5. Sub-sec. 5 which is the material section in this case empowers the court to make an order in favour of the landlord requiring the tenant to deposit in court month by month the rent at the rate it was last paid. In my humble opinion, before such an order can be passed, the following conditions must be satisfied - (1) The suit filed by the landlord must be one in which he has alleged that the defendant is liable to be ejected as he has committed default in payment of rent as provided in sub-sec. 1(a) ; (2) The defendant must have contested his liability to be ejected on any of the grounds mentioned in sec. 13(1), or must have failed to make payment referred to in sub-sec. 4. All this has been provided to ensure that the tenant may not prolong the litigation without even paying the rent month by month. Before sub-sec. 5 can be applied, the court must see that it is passing an order against a person who has been proved to be a tenant. It cannot pass an order in favour of a person who is not proved to be a landlord, in other words, against a person who is not proved to be a tenant. If tenancy is contested, the court must first hold an enquiry into the matter and come to the conclusion that the defendant is a tenant, and then only, subject to what has been said earlier, an order can be passed asking him to deposit rent month by month. It may, however, be pointed out that if the rate of rent is contested by the tenant in such a case, the court may not determine this matter finally at the stage when it proposes to pass the order under sub-sec. 5. It may postpone the decision on the point. But a duty has been cast upon the court to determine the rate of rent at which it was last paid. It is also clear that if under the order the tenant has been made to pay rent at a higher rate than that which is finally determined, the excess shall have to be returned to the tenant, or otherwise adjusted towards the arrears of rent. The last sentence of sub-sec. (5) makes it incumbent on the court to strike out the defence of the defendant against eviction in case the tenant fails to deposit the rent by the 15th of the next following month. What is meant by striking out the defence against the eviction? Does it mean the special defences to the grounds of ejectment mentioned in sub-sec. (1)(a) to (k) or all the defences raised by the defendant to contest his liability for ejectment ? In my opinion, the proper interpretation is that it does not mean the entire defence of the defendant because in a suit against eviction, the defendant may be taking up defence, such as his tenancy has not terminated, or that he is not tenant at all, or that he is a tenant of only a part of the property and not of the entire property for which the suit has been brought against him. It is contended that in the concluding part of this sub-section, it is mentioned that the tenant is to be placed in the same position as if he had not defended the suit and these words show that the entire defence of the defendant should be struck out whether such defence relates to the denial of the tenancy, or to the rate at which the rent is payable, or to the termination of tenancy. In my opinion, such an interpretation is not warranted looking to the context in which these words have been used. Sub-sec. 5 no doubt says that the defendant shall be placed in the same position as if he had not defended the suit, but preceding these words are the words which call upon the court to order the defence against eviction to be struck out. and these words must be construed as meaning striking off the defence against eviction taken up by the tenant in answer to allegations of the landlord that his case falls under clauses (a) to (k) of sub-sec. 1. If this interpretation is not adopted, a person, who is in fact not a tenant, will be at the mercy of the plaintiff who alleges that the defendant is his tenant and that he had committed default in the matter of payment of rent. Let it not be forgotten that it is not even left to the discretion of the court whether to strike out or not the defence of the defendant on the failure of a person to deposit the rent for any month. It makes incumbent on the court to strike out the defence. In support of this view, I may cite D. R. Gellatly vs. R. R. W. Cannon (l), which was a case in which sec. 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act which contained a provision similar to sec. 13(5) of the Act was considered. It empowered the court to order striking out the defence and placing the tenant in the same position as if he had defended the claim to eject-ment in case the defendant contested the suit as regards the claim for ejectment and failed to make deposit of the rent at such rate month by month as ordered by the court. Chakravartti, C.J. observed, as follows: "If the person, sued as a tenant pleads that he is not a tenant, then till that question is decided against him, there can be no question of proceeding against him as a tenant or applying to him sec. 14(4) or, any other provision of the said Act." In my humble opinion, the defence of the defendant in the instant case that he was not a tenant had been wrongly struck off by the trial court. It is next contended that the order dated 14.1.1961 striking out the defence was appealable as provided under sec. 22(1) of the Act and as no appeal was preferred, it was not open to the defendant to take up this plea in this second appeal. Sec. 22(1) of the Act runs, as follows: "22. Appeals and Revisions. - (1) From every decree or order passed by a Court under this Act, an appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former Court." There is nothing in this section laying down that if no appeal is preferred, the order shall become final. Recently their Lordships of the Supreme Court in Satyadhyan Ghosal vs. Smt, Deorajin Debi (2) have pointed out that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken could be challenged in an appeal from the final decree or order. In this view of the matter, this contention has got no force. The trial court was wrong in striking out the defence of the defendant. After the defence had been struck off, one of the witnesses of the plaintiff was not allowed to be cross-examined on the ground that the defence of the defendant has been struck off and he was not given any opportunity to rebut the case of the plaintiff. Under these circumstances the decree for ejectment passed by the courts below under appeal cannot stand. The judgment and decree under appeal are, therefore, set aside and the suit is remanded to the trial court for deciding it in the light of the aforesaid observations. Costs of the defendant-appellant in this Court as well as in the lower appellate court shall be borne by the plaintiff-respondent. ;