S. K. MAL LODHA. , J. - (1.) THIS is a defendant's revision against the order of the learned District Judge, Jodhpur, dated March 31, 1978 by which he confirmed the order of the Munsif City, Jodhpur, dated March 2, 1977.
(2.) THE plaintiff-landlerd (non-petitioner) instituted a suit for arrears of rent and ejectment against the defendant-petitioner in the court of Munsif City, Jodhpur, on August 30, 1972. Ejectment was sought on the ground of default and sub-letting. THE case of the plaintiff as disclosed in the plaint is that the defendant had taken on lease shop No 5 situate in his building located in Moti Chowk, Jodhpur and the rent payable by the defendant was Rs. 32/- per mensem inclusive of electricity charges and house tax about which there is no dispute between the parties and the defendant has paid rent up to Chait Sudi 15, Samvat 2028. It has been further mentioned in para 5 that a written notice wast sent to the defendant on December 27, 1971 stating that his tenancy would sand terminated on Magh Sudi 15, Samvat 2028 which is the date on which the month of the tenancy expires and that rent from Chait Sudi 15 to Magh Sudi 15 amounting to Rs. 320/- are due from him. In para 7 of the plaint, it is mentioned that a sum of Rs. 225/- on account of damages for use and occupation for the period from Falgun Badi 1 to Srawan Sudi 15, inclusive of 'adhik Mas' is due. Cause of action is stated to have arisen on Srawan Badi 1, Samvat 2035 when the defendant took the shop on rent and agreed to pay Rs. 32/- per men-sem as rent. THE defendant contested the suit on various grounds. His defence inter alia, is that rent up to Baisakh Sudi 15 has already been paid. He also preferred a counter-claim for the payment of Rs. 64. 80 p. alleging that the plaintiff has realised from the defendant house-tax from Samvat 2025 to the current Samvat illegally. On October 27, 1972, an application under S. 13 (5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (No. XVII of 1950) (which will hereinafter be referred to as 'the Act') as it existed then, was filed by the defendant. In that application, in para 2, it was mentioned that the defendant had already paid rent upto Baisakh Sudi 15 and that the plaintiff has wrongly mentioned in para 2 of the plaint that rent has only been paid upto Chait Sudi 15. He prayed that the arrears may be determined and time may be allowed for depositing the same. A reply was filed to this application on February 1, 1973 and the plaintiff reiterated in para 2 of the reply that the defendant has paid rent up to Chait Sudi 15 only. As the defendant raised the dispute regarding 1o amount of rent payable by him, the trial court held an enquiry. The trial court vide its order dated April 26, 1973 determined the amount of rent etc. upto Jeth Badi 1, Samvat 2030 and directed the defendant to deposit the rent so determined within fifteen days from the date of the order. A further direction was made that the defendant should continue to deposit the rent month by month in accordance with S. 13 (4) (old) of the Act. In that order dated April 26, 1973, the learned Munsif has clearly recorded a finding that the defendant has failed to prove that he has paid rent upto Baisakh Sudi 15. The defendant deposited the amount so determined within the time fixed by the court. He, however, failed to deposit the rent month by month as envisaged by S. 13 (4) (old) of the Act. On February 16, 1974, an application (dated February 14,1974) was moved by the plaintiff under S. 13 (6) (old) of the Act stating that the defendant has neither deposited in court nor paid to the plaintiff arrears of rent by 15th of each succeeding month, It was prayed by the plaintiff that the defence against eviction be struck out. The defendant submitted his reply on October 19, 1974 and stated that the tenancy of the defendant commences from the first of the month according to British calendar about which there was an oral agreement between the parties and that the defendant has been depositing rent, month by month by the 15th of each succeeding month Along with the reply, he submitted a schedule mentioning details of the deposit of the rent made by him from month to month. Learned Munsif, by bis order dated December 10, 1974, dismissed the plaintiff's application. It was not disputed before the learned Munsif, as is apparent from the order dated December 10, 1974, that the defendant had deposited each month's rent after the order dated April 26, 1973 by the 15th of each succeeding month according to the British calendar and as such, he has not become a defaulter. The next question that came to be considered by the learned Munsif was whether the tenancy is according to the Hindu calendar month or the British calendar month. He examined this question and observed that the plaintiff has not specified the details of the delayed payments according to the Hindu calendar month. Being dissatisfied with the order dated December 10, 1974, the plaintiff preferred an appeal and it is not in dispute before me that appeal was withdrawn on November 20, 1975 The second application was moved under S. 13 (5) of the Act on April 7, 1976 in which it was stated that the defendant has deposited the rent of the months April and November, 1974, May 1975 and January 1976 beyond time and since the defendant has not deposited the rent of the aforesaid months in time, he is a defaulter. In this application, it was specifically mentioned that the plaintiff has previously moved an application tinder S. 1 (6) of the Act, on the ground of default which was dismissed. In this application, it was prayed that the defence against eviction be struck out. The defendant contested this application stating that he has not committed any default in payment of the rent as stated by the plaintiff. It appears from the order sheet dated Jan. 10, 1977 that the learned counsel for the plaintiff stated before the court that he wants to move a fresh application under S. 13 (5) of the Act, to which the learned counsel had no objection. This second application of the plaintiff has not been disposed of by the trial court so far and the third application was submitted on January 20, 1977 under S. 13 (5) of the Act. It was stated in this application that the defendant did not deposit the rent by the fifteenth of each succeeding month. It was also mentioned that the tenancy of the defendant is from Badi Ekam and the month of tenancy is from Badi Ekam to Sudi Poonam. A mention was made in the application that the previous application under S. 13 (6) of the Act was dismissed because it did not contain specific details of defaults of the monthly rent by the defendant. In this application, details of the monthly defaults according to the Hindu calendar were given. It was specifically stated that the defendant has not deposited rent month by month in time as required by Section 13 (4) of the Act and, therefore, the defendant is a defaulter. Because of the defaults committed by the defendant-petitioner, it was pleaded that the defence against eviction under S. 13 (5) of the Act be struck out. The defendant opposed this application by filing a reply on February 17, 1977. The principal objection taken in the reply was that it was not open to the plaintiff to allege that the month of the tenancy commences from Badi Ekam of each month and that this will be deemed to have been abandoned when he did not press the appeal which was preferred by him against the order of the trial court dated December 10, 1974. It was pleaded that he has been depositing the rent according to the British calendar months by fifteenth of each month and that this deposit has been made in accordance with S. 13 (4) of the Act. The learned Munsif, by his order dated March 2, 1977, ordered the defence of the defendant against eviction to be struck out on the ground that the defendant has failed to deposit the rent by fifteenth of each of the month of the tenancy according to Hindu calendar month. Being aggrieved by the order passed by the Munsif on March 2, 1977, the defendant-petitioner went in appeal and the learned District Judge dismissed it on March 31, 1978 holding that the defendant-tenant has committed default in the payments of the monthly rent in pursuance of the order passed on April 26, 1977. Being dissatisfied with this order, the defendant-petitioner has come up in revision. I have heard Mr. P. C. Mathur, learned counsel for the petitioner and Mr. Rajendra Mehta, learned counsel for the non petitioner, and have also gone through the record of the case.
(3.) IT has vehemently been argued by Mr. Mathur that the order dated December 10, 1974 passed on the first application (which was presented on November 16, 1974) operates as res judicata. His submission in this behalf is that the plaintiff himself in that application had mentioned that the defendant did not deposit the rent of each month by the fifteenth of each succeeding month nor did he pay the same to the plaintiff He invited my attention to the following words used in the application, - ********* Learned counsel for the defendant submitted that in the first application the plaintiff has clearly mentioned "before DATE OF 15th" and before the trial court it was admitted by the learned counsel lor the plaintiff that according to the British calendar month, rent of each month was deposited before fifteenth of each succeeding month and, therefore, the defendant has not committed any default. On the basis of this, the learned Munsif observed in the order that, ************* ;