- (1.) THIS is a revisional application filed by the defendant-tenant against the appellate order of the learned Additional Judge No. 1, Jodhpur dated January 13, 1978 by which he set aside the order of the learned Munsif City, Jodhpur dated January 29, 1977.
(2.) BRIEFLY put the facts leading to this revision are these: the plaintiffs-non petitioners (landlords) instituted a suit for arrears of rent and ejectment against the defendant-petitioner in the court of Munsif City, Jodhpur on March 18, 1976. In the suit the plaintiffs claimed rent from March 1, 1975 to January 31, 1976 @ Rs. 80/- per month and damages for use and occupation from February 1, 1976 to March 18, 1976 amounting to Rs. 290 out of which they relinquished Rs. 130/ -. It was specifically mentioned in para 7 of the plaint that the previous Civil Original Suit No. 119 of 1972 which was decided by the learned Additional Civil Judge,jodhpur on March 18,1972, was for the recovery of arrears of rent at the rate of Rs. 80/- per month from November 1, 1969 to October 31, 1970 to May 18, 1971 and ejectment. It was also stated in para 7 that suit for ejectment was based on the ground of default in payment under Section 13 (l) (a) of the Rajasthan Premises Control of Rent and Eviction Act, 1950 (No. XVII of 1950) (for short 'the Act' ). In that suit, the defendant is alleged to have taken benefit to Section 13 (7) (old) of the Act but as defendant has committed default in payment to rent, as mentioned above, it was prayed that the plaintiffs are entitled to evict the defendant from the premises in question and the defendant is not entitled to any protection or benefit. On July 29, 1976, the trial court directed the defendant under Section 13 (4) of the Act to deposit in court or pay to the plaintiffs by August 12, 1976 the amount of arrears of rent, costs of suit and interest and further ordered that the file be put up for the decision of the suit on August 12, 1976. A perusal of the proceedings of the trial Court, dated August 12, 1976 shows that the amount was deposited vide tender No. 727 dated August 5, 1976. On that day, the counsel for the plaintiffs intimated the trial Court that this was a case of second default. The trial Court ordered that the defendant should file the written statement on October 12, 1976. On November 13, 1976, an application was moved by the defendant under Section 13 (6) of the Act stating therein that he has deposited the entire amount in pursuance of the order of the Court dated July 29, 1976 and that the defendant has not taken the additional benefit of sec. 13a of the Rajasthan Premises Control of Rent and Eviction (Amendment Ordinance), 1975 (Rajasthan Ordinance No. XXVI of 1975) or after that of Section 13a of the Act. He, therefore, prayed that the suit of the plaintiffs may be dismissed. This application was resisted by the plaintiffs by filing a reply dated September 13, 1976 on the ground that the defendant had already taken benefit under Section 13 (7), as it stood then, and, therefore, since the suit out of which this revision has arisen," was based on second default under Section 13 (l) (a), the defendant is not entitled to the benefit of Section 13 (6) of the Act. Along with the reply, the plaintiffs submitted the certified copies of the plaint (filed in Civil Original Suit No, 119 of 1972), decree-sheet dated March 18,1972, order dt. February 24, 1972 and application dated March 10, 1972. After hearing the arguments, learned Munsif, by his order dated January 29, 1977, dismissed the plaintiffs' suit for eviction. Being dissatisfied with the order of the learned Munsif dated January 29, 1977, the plaintiffs preferred appeal under Section 22 of the Act. The learned Additional District Judge No. 1, Jodhpur accepted the appeal and set aside the order dated January 29, 1977, passed by the Munsif City and remanded the suit to him for further proceedings in accordance with law in the light of the observations made by him in the order. Being aggrieved by this order, the defendant has come up in revision to this Court as aforesaid. Appearing for the petitioner, Mr. J. P. Joshi contended that in the earlier suit No. ll9 of 1972, compromise was arrived at between the plaintiffs and the defendant and on the basis of the compromise, the suit was disposed of and as such there was no finding of the learned Additional Civil Judge, Jodhpur that the defendant was a defaulter under Section 12 (l) (a) of the Act. He made particular reference to the decree-sheet of Civil Suit No. 119/72. The relevant portion of which reads as under: --------o fmxjh nh tkrh gs fd ekfqd jkthukek izfroknh dks 1815 rkjh[k 10-5-72 dks vnk djsxk] ,slk djus ij oknh izksehtst eqruktk ls csn[ky ugh djsxk o nkok k[kkjht le> k tk;sxka ;fn bl izdkj vnk;xh ugh djus ij oknh nkok ds vuqlkj [kwt ,. M vksd;wys'ku ds 80 :- ekgokj ls eqdnek [kpkz o izksehtst eqruktk dk dctk nks ekg ckn ikus dk eqlrgd gksxk [kpkz viuk&viuk Qjhdsu ik;saxsa
(3.) THERE are some mistakes in the language of the decree It was next urged that the defendant in the previous Suit No. 119 of 1972 did not avail of the benefit of Section 13a as it stood then, and therefore, it cannot be said that he took benefit of Section 13 (7) (old) and when he has not taken such benefit, the defendant cannot be deprived of the benefit, available to him under Section 13 (6) of the Act. In order to appreciate the contentions raised by the learned counsel for the petitioner, I may reproduce here the relevant Sections : Provisions of law which were in force upto the decision of the suit No. 119 of 1972 which was decided on March 18, 1972. Provisions of law which were/are in force upto the decision of the suit and appeal leading to the present revision. Section 13eviction of tenant. . . . . . (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 six months. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) In a suit for eviction on the ground set forth in clause (a) of sub-section (1), with or without any of the other grounds referred to in that sub-section, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, 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 the deposit or payment 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 deposit and shall thereafter continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at the rate. (7) If a tenant makes deposit or payment as required by sub-section (4) or sub-section (5), no decree for eviction on the ground specified in clause (a), of sub-section (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord. Provided that a tenant shall not be entitled to any relief under this subsection if having obtained such benefit or benefit under section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months. Section 13-A-Special provisions relating to pending and other matters-Notwithstanding (anything in section 13, sub-sec. (l) (a), or sub-section (4) and the proviso thereto or sub-section (5) as they existed) before the commen cement of the amending Act (a) no court shall, in any proceeding pending on the date of commencement of the Act, pass any decree in favour of a 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, interest therein 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 Act, 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 six per cent 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. S. 13. Eviction of tenants (1) Notwithstanding any thing 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 six months. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under subsection (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3 ). (6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-section (1) shall be passed by the court against him: Provided that a tenant shall not be entitled to any relief under this subsection, if having obtained such benefit or benefits under section 13-A in respect of any such accommodation if he again makes a default in the payment of rent of that accommodation for six months. Section 13-A. Special provisions relating to pending and other matters-Notwithstanding any-thing 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 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 land lord, 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 under and in accordance with that clause; (b) in every such proceedings the cou rt 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. ;