VERMA, J. - (1.) THE petitioner is a tenant in the suit filed by the non-petitioner plaintiff for eviction and is aggrieved against the order passed on 10. 5. 1996 by the Additional Civil Judge (Senior Division) No. 3, Jaipur City, Jaipur in Civil Suit No. 257/95 for striking off the defence of the petitioner which order stands confirmed by the Additional District Judge No. 2, Jaipur City, Jaipur in Civil Misc. Appeal No. 52/96 vide its order dated 26. 10. 1996.
(2.) THE non-petitioner plaintiff had filed a suit for eviction on the ground of default of rent in which suit the trial court had passed the order under Section 13 (3) and 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter called as the Act) when the provisional rent was determined. THE trial court had passed the order on 8. 8. 1988. THE rent was alleged to be due from November 1985. Under the provisions of the Act, the rent is to be deposited within 15 days of the determination of the rent, which period can be extended by another three months by the court. THE petitioner defaulted in complying with the statutory provisions of law. He did not deposit the rent, rather moved an application on 31. 8. 1988 for extension of time of two months for depositing the rent. However, no order was made on such application. THE rent was deposited on 15. 11. 1988 with a delay of about more than 80 days upto the period of July 1988. Rent for the period of August 1988 was deposited by one day's delay and so was the position in regard to the rent for the month of October 1988. THEre was 5 days delay in depositing the rent of November 1993. Even though the rent is said to have been deposited with the delays as mentioned above, the respondent non-petitioner plaintiff had moved an application under Section 13 (5) of the Act for striking off the defence of the petitioner for the default caused by him. Section 13 (5) of the Act postulates that if the rent is not deposited within the time as stipulated or extended time, the defence of the tenant would be struck off. The said application of striking off the defence had come up for hearing before the trial court and the trial court vide impugned order dated 10. 5. 1996 had struck off the defence of the petitioner. To the application moved for striking off the defence under Section 13 (5) of the Act, the petitioner had not filed any reply, but had submitted that he had moved an application in the month of August 1988 itself for extending the time by two months. On the facts the trial court had come to a finding that there was the default and, therefore, the defence was likely to be struck off. Being aggrieved the petitioner filed an appeal. The order of the trial court was confirmed in appeal. Being aggrieved the petitioner has moved the present Revision Petition. It is stated by the learned counsel for the petitioner that the provisions of Section 13 (3) and 13 (4) if read together, leave no doubt that the rent can be deposited within a period of 105 days i. e. 15 days and the extended period of 3 months and thus there was hardly any default on the part of the petitioner. The rent could be deposited upto 23. 11. 1988 whereas the rent stood deposited on 15. 11. 1988. In regard to other defaults of one day and 5 days, it is submitted that even though there is no such default, but in the circumstances of the case when the petitioner had been regularly depositing the rent, the order of striking off the defence should not have been passed. The petitioner also relies on Mahaveer Prasad vs. Smt. Rekha Devi S. B. Civil Revision Petition No. 508/92 decided on 30. 7. 1992 (1) and Ramesh Chandra vs. Manmohan Singh & Another (2) In the case of Ramesh Chandra (supra) the default in payment of rent was one month. This Court had observed that the power to strike off the defence is a discretionary and not mandatory. In the case of Mahaveer Prasad (supra) this court had observed that the petitioner in that case had been depositing the rent in advance and there was no wilful default. In the case of Mahaveer Prasad the rent had been tendered and the certificate had been produced before the courts below. It was held that the rent stood deposited and in the circumstances the High Court had set-aside the order of striking off the defence. It is further submitted by the learned counsel for the petitioner that the word 'shall' be used and read as 'may' and in such situation the default if any, be condoned.
(3.) THE counsel for the respondent opposed the petition with the submission that there was no application moved by the petitioner for condonation of delay and even the application moved on 31. 8. 1988 is presumed to have been allowed, in that situation too, the maximum time asked for by the petitioner for extension was of two months and, therefore, even the period of two months had expired on 23. 10. 1988 and the rent was deposited after about 3 weeks even of this deemed extended time. THE question which arises to meet the argument of the counsel for the petitioner is whether the enabling provisions of the Act to the effect that the time can be extended by another three months is extended automatically or a proper application is to be moved for extension of the said time and the orders of the competent courts are required to be obtained or not. In my opinion, the statutory period for deposit of the rent after determination is 15 days and in case the rent is not deposited within a period of 15 days, the tenant is at liberty to move an application for extension of time and the rent is to be deposited within the extended time by the court. A bare reading of the provisions of Section 13 (3), (4) and (5) makes it clear that it is the court which is to extend the time on the request having been made by the tenant and in case no request is made, it cannot be dee- med that the time automatically stands extended. However, if the tenant is unable to deposit the rent, he is always at liberty to move an application for condonation of delay by satisfying the court that there were sufficient reasons for not depositing the rent and the court is to apply its mind to the facts of the case. It has been held by a Full Bench of this Court that the provisions of Section 5 of the Limitation Act does apply even for depositing of rent as has been held in the case of Sita Ram Agarwal Vs. Nasiruddin & Ors. (3) For the reasons that civil consequences do arise for not depositing the rent within time and the defence can be struck off, it is mandatory for the trial court where any such application is moved for extension of time under the relevant pro- visions of Section 13 of the Act, the court trying the suit before whom the application is pending, is duty bound to decide the said application within the period and it shall be the duty of the tenant to see that he gets an appropriate order on the application by representing to the court to the effect that the application be decided within the period. But in no case the extension can be granted more than 3 months after the expiry of the statutory period of 15 days, meaning thereby the application must be moved, if so required within the period for which the extension is permissible and should also be decided within the same period. However, for any reason or negligence not attributable to the conduct of the tenant, the tenant is not to suffer if such application is not decided by the court. It is made clear that if for any reason the application is not decided and the period of 15 days plus 90 days are likely to expire, it is the duty of the tenant to deposit the amount pending the application within the permissible time of 15 plus 90 days even if no orders on the application are made by the court. In the present case, the counsel for the petitioner states that in view of the law laid down by the Hon'ble Supreme Court in Smt. Sulochana Damodar Vs. Smt. Ratanprabha vs. Tople (4) wherein it was held that even though the rent stood deposited by the orders of the courts, it could not be construed that the court had condoned the delay in depositing the same. The Supreme Court had observed that in the absence of the order passed by the court in condoning the delay and, for the reasons that the deposit had not been made by the tenant as required regularly to deposit the rent, the default clause had been rightly invoked by the court trying the suit. Division Bench of this court in Gaurav Video Library vs. Prem Kumar Gupta (5) had held that under Section 13 (4) it cannot be presumed that the extension is automatic. Yet in another case in Jai Narain vs. Satya Narain (6) it was held that the delay in payment of rent does not attract any sympathy. ;