S. S. BYAS, J. - (1.) THIS is a judgment-debtor's revision directed against an order of the learned Additional Munsif & Judicial Magistrate (1), Jodhpur dated June 1,1985, whereby his objections relating to the non-executability of the decree were disallowed.
(2.) IN order to properly appreciate the contentions raised at the bar, it is necessary to have a brief resume of the relevant facts. The non-petitioner Maheshwari Samaj, Jodhpur (hereinafter to be referred as 'the landlord' or the decree-holder) instituted a suit for recovery of arrears of rent and eviction against the revision-petitioner (hereinafter to be referred as 'the tenant' or the judgment -debtor) in the Court below on August 30,1977 in respect of the shop in dispute. The only ground on which eviction of the tenant was sought was that he had neither paid nor tendered the amount of rent due from him for more than six months. He was, therefore, liable to be evicted on the ground mentioned in section 13 (1) (a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short 'the Act' hereinafter ). The defendant put appearance and contested the suit. He filed written statement on November 25,1980. Issues were framed on March 3, 1982. Thereafter the trial lingered on. The plaintiff was to lead his evidence on September 4,1984. However, on September 4, 1984, the tenant failed to put appearance. The trial was held ex-parte thereafter. The suit for eviction and arrears of rent was decreed against the tenant on January 12, 1985. The landlord decree-holder applied for the execution of the decree. The tenant-judgment-debtor moved an application under sections 47 and 151 of the Code of Civil Procedure and challenged the decree. It was alleged by him that the decree is a nullity and was not capable of execution. The ground urged by him to render the decree a nullity is that the trial Court failed to make a compliance of the mandatory provisions of section 13 (3) of the Act inasmuch as the provisional rent was not determined. Had the provisional rent been determined under section 13 (3) of the Act the tenant would have made the payment and the suit would have been then dismissed. Since no compliance of the provisions of sec. 13 (3) was made by the trial Court during the pendency of the suit, the decree-passed later on is not valid and enforceable. The learned Munsif heard both the parties and by his impugned order disallowed the objections of the tenant relating to the non- executability of the decree. Hence this revision. I have heard the learned counsel for the parties and perused the impugned order. It was contended by Mr. Singhvi learned counsel for the judgment debtor that the provisions of section 13 (3) are mandatory and imperative. It casts a duty on the Court to provisionally determine the arrears of rent and to fix a time within which the tenant may deposit or pay the same. Since no compliance of these mandatory provisions was made by the trial Court, the decree is a nullity. It was argued that even if the suit is tried ex-parte, section 13 (3) casts a duty on the trial court to provisionally determine the arrears of rent and to direct the tenant to deposit or pay the same. Reliance in support of the contention was placed on Kewal Krishna v. Harish Kumar (1) and various other decisions, which need not be cited because they all relate to the compulsive force of the provisions of section 13 (3) of the Act, about which there is no controversy. It was, on the other hand, contended by Mr. Thanvi learned counsel for the decree - holder that the tenant-defendant contested the suit. He filed the written statement. Issues were framed in his presence on March 3,1982. The case was thereafter posted on September 4, 1984 for the landlord's evidence. If the Court was not making a compliance of section 13 (3) of the Act, it was open to the tenant to draw the Court's attention to seek a proper order in that direction. It was further submitted that a decree cannot be rendered a nullity simply because the provisions of section 13 (3) of the Act were not complied with. The Court cannot go beyond the decree and open the pre-decree matter. I have taken the respective submissions into consideration. There cannot be a dispute that the provisions of sec 13 (3) of the Act are mandatory and imperative and cast a duty on the trial Court to provisionally determine the amount of arrears of rent to be deposited or paid by the tenant. No application is needed to be submitted by the landlord or the tenant for this purposs. Even if the concerned parties i. e. the landlord or the tenant fails to move an application, the Court is not relieved of its duty to give effect to the provision of section 13 (3) of the Act. This duty under sections 13 (3) is to be performed by the trial court suo-moto, even if there is no application from either the landlord or the tenant. Admittedly, in the instant case, no compliance of the provisions of sec. 13 (3) of the Act was made by the Court. But the fault for the non-compliance of the provisions of sec. 13 (3) of the Act lies on the tenant. He contested the suit and filed the written statement on November 25, 1980. Issues were framed on March 3, 1982. Under sec. 13 (3 , the provisional rent is to be determined before framing of the issues. Section 13 (3) reads as under :- 13 (3)' In a suit for eviction on the ground set forth in clause (a) of sub-sec. (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 other 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 provisionally determined 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 upto 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 percent per annum from the date when any such amount was payable upto 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 the filing of the suit. "
(3.) A bare reading of the sub-section makes it abundantly clear that the provisional rent is to be determined either on the first date of hearing or on any other date fixed by the Court for that purpose and in no case after framing of the issues. The stage for determining the provisional rent comes to an end as soon as the issues are framed. After the issues are framed, the stage for determining the provisional rent remains no more. As stated above, the suit was contested by the defendant for some time He filed the written statement on November 25, 1980 and the issues were framed on March 3, 1982. If the Court ignored the provisions of section 13 (3) of the Act, it was the duty of the tenant to draw the Court's attention to the provisions of section 13 (3) and to have the determination of the provisional rent. After all, it is the tenant who is to be ultimately benefited by the compliance of the provisions of section 13 (3) of the Act as he gots one more opportunity to prevent his eviction on the ground of his default in depositing or making the payment of rent. But he remained silent and took chance. The tenant, therefore, cannot escape his liability for the Court's not making a compliance of the provisions of section 13 (3) of the Act. After framing of the issues, the provisional rent could not be determined. It is interesting to note that the tenant was present throught-out and issues were framed in his presence. The date for the plaintiff's evidence was fixed in his presence and yet curiously enough he remained silent through-out without drawing the attention of the Court to the provisions of section 13 (3 ). There is yet another aspect of the matter. As soon as issues were framed on March 3, 1982 without making a compliance of section 13 (3) of the Act, it will be inferred that the Court refused to provisionally determine the rent. The remedy was then available to the tenant by way of appeal. But the tenant accepted the procedure and did not challenge the non-compliance of section 13 (3) by way of appeal. ;