SOBHAGMAL JAIN,J. - (1.) BY the judgment dated March 24, 1979 the plaintiff's suit for eviction of the appellant from the suit premises was dismissed by the Munsif and Judicial Magistrate, Bikaner. On appeal the Civil Judge, Bikaner, by the judgment dated November 25, 1980 decreed the plaintiff's suit for eviction. The suit for eviction has been decreed on the ground that the defendant-tenant was a defaulter in the payment of rent for the period September 3, 1971 to April 3, 1972 and for the period October, 1974 to April, 1977. Aggrieved by the aforesaid judgment of the learned Civil Judge, the legal representatives of the original defendant-tenant have filed the present appeal in this Court.
(2.) I have heard learned counsel for the parties and have gone through the judgments of the learned Courts below. The ground of default for the period September 3, 1971 to April 3, 1972 does not survive for the reason that the defendant-tenant on the first date of hearing i.e. on July 4, 1972 offered and tendered to deposit the entire rent with interest and costs and required by Section 13(4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act'). A sum of Rs. 480/- was accepted by the landlord without any demur or protest. Having accepted the rent on the first date of hearing, it is not open to the landlord now to urge the point of default for the period September 3, 1971 to April 3, 1972. This ground, therefore, does not entitle the plaintiff to obtain a decree for eviction on the ground of default in the payment of rent. As regards the default in payment of rent for the period October, 1974 to April, 1977, certain facts need mention. The original defendant-tenant Gomji died during the pendency of the suit in October, 1974. His legal representatives were then brought on record and as soon as they appeared after service, they deposited the entire arrears of rent in April, 1977. Non-payment of rent for this period has been made a ground for decree of eviction by the Civil Judge, Bikaner. The consequence of failure to deposit the rent month by month after the institution of the suit is as provided by sub-section (5) of Section 13 which lays down that if a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. This section envisages a positive act on the part of Court. On non-compliance the Court is required to pass an order striking out the defence of the tenant and then proceed with the hearing of the suit. Non-compliance of sub-section (4) does not automatically result in a decree for eviction. In the present case no order as envisaged by sub-section (5) was passed by the Court. Consequently, the decree for eviction passed directly without following the procedure of Section 13(5) cannot be sustained.
(3.) ACCORDINGLY , the appeal is allowed, the judgment and decree dated November 25, 1980 passed by the Civil Judge, Bikaner is set aside and the judgment and decree dated March 24, 1979 passed by the Munsif and Judicial Magistrate, Bikaner, is restored. The plaintiff's suit shall stand dismissed. The parties shall bear their own costs. Appeal allowed.;