K.S.LODHA, J. - (1.) THIS is a plaintiffs' second appeal in a suit for ejectment based on the ground of second default. The suit was filed on 22.10.1973 and it was alleged that rent from 2.5.1972 up to the date of the suit had fallen into arrears and thus the tenant had committed a default. It was also alleged that earlier also, the tenant had made defaults in payment of rent and, therefore, a suit on the ground of default had been filed in the Court of Munsif, Bhilwara, being suit No. 260/71. However, the tenant had deposited the arrears of rent, interest and costs of the suit on the first date of hearing and, therefore, that suit was dismissed on 15.10.1971 in pursuance of Section 13(4) of the Rajasthan Premises (Control of Rent & Eviction) Act as it then stood. In the present suit, some other grounds for ejectment were also pleaded but we are not concerned with them at present. After framing the necessary issues and taking the evidence of the parties, the learned Munsif, Bhilwara, decided issue No. 1 regarding personal bonafide necessity against the plaintiffs. On issue No. 2 regarding default, he came to the conclusion that although the defendant had committed more than three defaults after having already taken the advantage of Section 13(4) of the Act on previous occasions, the amended Section 13A of the Act had come to his rescue pending this suit and as the tenant had moved an application under Section 13A within the prescribed time, he proceeded to determine the arrears of rent, interest thereon and the costs of the suit and came to the conclusion that a sum of Rs. 357/- was due against the tenant from 2.5.1972 to 31.7.1976 he was also liable to pay interest on that amount amounting to Rs. 46.76 and he also awarded costs of the suit, the amount of which, of course, has not been mentioned in the judgment but according to the decree framed in pursuance of this judgment, it comes to Rs. 62.50. The Court directed that the amount determined by it was to be deposited by the tenant within two months i.e. 60 days from the date of the judgment and as the tenant was entitled to the benefit of Section 13A, the suit for ejectment was dismissed. Aggrieved of this judgment and decree of the learned Munsif, Bhilwara, dated 21.8.1976, the plaintiffs went up in appeal. The contention raised before the learned first appellate Court was that the tenant had not deposited the full amount of arrears of rent, interest and costs determined by the trial Court within the time prescribed by it and, therefore, he was not entitled to the benefit of Section 13A and as he had been found to have committed defaults for the second time, he was liable to be ejected. The tenant-respondent before the first appellate Court, on the other hand, contended that the trial Court had committed a mistake in calculating the amount of interest on the arrears of rent and instead of a sum of Rs. 46.76 only a sum of Rs. 2.52 was payable by him as interest on the arrears as he had already deposited the rent from time to time under Section 19A of the Act and if the interest was to be taken to be Rs. 2.52 only then all the arrears of rent, interest and costs stood deposited within the time specified by the trial Court. The learned first appellate Court did not agree with the submissions of either of the parties in this connection but made out an altogether new case for the tenant inasmuch as although he was of the view that if the tenant thought that the interest had wrongly been calculated by the trial Court and a decree for a greater amount was passed against him, he should have challenged that part of the decree by filing an appeal of cross-objection and as he failed to do so, he cannot make a grouse about the wrong calculation of interest in this appeal, but he further found that as a matter of fact, the trial Court had only determined the arrears of rent and interest but had not determined the costs while disposing of the application under Section 13A and had not directed the tenant to pay the amount of the costs also within the period of 60 days. Therefore, the tenant was not bound to deposit the amount of costs of the suit within that time and on his failure to do so, it cannot be said that he is not entitled to the benefit of Section 13A of the Act and on that ground, he dismissed the plaintiff's appeal by his judgment dated 31.1.1979. Aggrieved of this, plaintiffs have come up in second appeal.
(2.) THE following substantial question of law was framed at the time of the admission of this appeal :- "Whether on the facts and in the circumstances of the case, the learned Additional District Judge was not right in refusing to decree the suit for eviction against the tenant respondent for failure to comply with the conditions laid down under Section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) ?" This question has been agitated before me by the learned counsel for the appellants. His contention is that the learned Addl. District Judge was entirely wrong in observing that the trial Court had not determined the costs of the suit nor had it directed the same to be paid within 60 days when it was not the case of the defendant respondent before him. On the other hand, from the application filed by the respondent himself on 19.7.1979, it would be clear that the trial Court had determined the costs in the sum of Rs. 62.50 and that he had to pay that amount within 60 days of the date of the judgment. On the other hand, the learned counsel for the respondent urged that that amount of Rs. 62.50 had not been determined by the learned Munsif while deciding the case but that had later been incorporated in the decree as the decree had awarded costs and, therefore, this amount cannot be said to have been determined under Section 13A of the Act. He further reiterated that the learned Munsif had committed an arithmetical mistake in calculating the interest on the amount of arrears of rent and that mistake could have been corrected by the learned first appellate Court and if that had been done, it would have found that the whole amount of arrears of rent, interest and costs had been deposited within the prescribed time. Unfortunately according to him, the first appellate Court failed to correct this arithmetical or clerical mistake but on that account, the defendant should not be deprived of the benefit of Section 13A. He further contended that such mistake can still be corrected by this Court while hearing this appeal.
(3.) I have given my careful consideration to the rival contentions. Now there is no dispute that the defendant had committed defaults in payment of rent more than thrice as has been found by the trial Court and which finding does not appear to have been challenged before the first appellate Court. It has been further found and is not disputed that the earlier suit filed by the plaintiffs on the ground of default was dismissed on account of the benefit given to the tenant under Section 13(4) of the Act as it then stood. Therefore, the only question, which now remains to be considered is whether the tenant should or should not have been given the benefit of Section 13A. The trial Court gave him benefit of Section 13A with a direction amounting to Rs. 46.76 within 60 days of the date of the judgment. While determining these amounts and disposing of the suit, he further observed that the defendant was also liable to pay the costs of the suit. Of course, that amount has not been mentioned in the judgment nor it has been directed that the amount of cost is also to be paid within 60 days along with the arrears of rent and interest and it is probably on this account that the first appellate Court had come to the conclusion that the tenant was not bound to deposit this amount of costs within 90 days. It is also not in dispute that in the decree framed in pursuance of this judgment, the costs have been calculated as Rs. 62.50 and this fact also stands admitted by the tenant in the application he had filed in the first appellate Court on 19.7.1973. Now that being so, it is to be determined whether Section 13A had been complied with by the tenant-defendant or not. The relevant part of Section 13A reads as under :- "Section 13A. 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 landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under clause (b) and pays to the landlord, or deposits in Court; within such time such aggregate of the amount or rent in arrears, interent thereon and full costs of the suit as may be directed by the Court under 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 upto the date of the order as also the amount of interest thereon at 6% 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 by the Court; and on such payment being made within the time fixed as aforesaid; the proceeding shall be disposed of as if tenant had not committed any default;" A bare reading of this section would go to show that the benefit of this section can be taken by the tenant if he complies within clause (b) and pays to the landlord or deposits in Court within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the Court and such amount has to be deposited within such time not exceeding 90 days as may be fixed by the Court. On such payment being made within the time fixed as aforesaid, the proceedings have to be disposed of as if the tenant had not committed any default. Thus according to this section, the burden of making an application within time has been placed upon the tenant and he has to deposit the arrears of rent, interest thereon and the full costs of the suit allowable to the plaintiff-landlord. Of course, the amount has to be calculated and to be determined by the Court. Now in the present case, the tenant-defendant had moved an application under Section 13A(b) within the prescribed time and the Court had proceeded to determine the amounts referred to in that section. It definitely gave the figure of the arrears of rent and interest payable thereon. However, it did not determine the definite figure of costs but it certainly added that costs are also to be paid by the tenant and those costs thereafter were specified the decree. The tenant himself has not challenged the calculation of costs nor has he alleged that the Court had not directed payment of this amount in pursuance of Section 13A. What has been disputed by the tenant is the calculation of the interest on the ground that the tenant had deposited rent from time to time under Section 19A of the Act. The judgment of the trial Court does not show that the payment of rent under Section 19A was made the ground of diminishing the interest. The trial Court had taken into account the payment made by the tenant under Section 19A as would be clear from the discussion of the earlier part of issue No. 2 but while calculating the interest, those payments as such have not been taken into account had it appears that the tenant also did not make a grouse in this respect before the trial Court. Now if the tenant though that the interest had wrongly been calculated and a decree in excess of the interest due had been passed against him, he had two options open to him, he could have applied for correction of the mistake under Section 152 CPC before the trial Court if he thought that the mistake was only a clerical one or to have filed an appeal or a cross-objection before the first appellate appellate but he did not do either of them and only alleged before the first appellate Court that the interest has wrongly been calculated and that if the interest was rightly calculated the amounts under Section 13A would have been stood paid. The first appellate Court refused to go into this question and, in my opinion, rightly. As a matter of fact, the question raised about the calculation of interest in this case by the defendant-tenant cannot be said to be a question relating to a clerical or arithmetical mistake but it involves a further question to be considered and that is whether the landlord was bound to accept the payment or deposit of rent after the tenant had already committed a default. The tenant-defendant while alleging that only a sum of Rs. 2.52 was payable upto the deposit of rent under Section 19A irrespective of the fact whether it was after a default and whether the plaintiff-landlords was bound to accept such a deposit. In these circumstances such a question could not have been raised before the first appellate Court without filing an appeal or a cross-objection. The question, therefore, clearly appears to be out of the purview of Section 152 CPC also and, therefore, neither the learned Addl. District judge nor this Court can come to the rescue of the tenant-defendant.;