M. C. JAIN, J. - (1.) THIS revision is directed against the order dated 6. 7. 87 passed by the learned Addl. Chief Judicial Magistrate, Sojat, whereby the plaintiff's application for striking out the defence under S. 13 (5) of the Rajasthan Premises (Control of Rent and Eviction), Act, 1950 (for short 'the Act') has been rejected.
(2.) A preliminary objection has been raised on behalf of the respondent that the impugned order is appealable under Sec. 22 of the Act and this revision is incompetent and not maintainable. The question therefore, arises as to whether the order rejecting the application for striking out the defence under Sec. 13 (5) of the Act is appealable under Sec. 22 of the Act or not. The relevant part of Sec. 22 reads as under: "sec. 22-Appeal & Revision: (1) From every decree or order passed by a court under this Act, an appeal shall lie to the court to which appeals ordinarily lie from original decree and orders passed by such former court. " Section 13 (5) of the Act is as follows :- "sec. 1-3 (5) If a tenant fails to deposit or pay any amount referred to in sub-sec (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. " 4. It may be stated here that under sub-sec. (4) of Sec. 13 of the Act, the tenant is required to deposit-in court or pay to the landlord the amount determined by the court under sub-sec. (3) within the time provided under that provision and there is a further duty cast on the part of the tenant that he shall continue to deposit in court or pay to the landlord month by month monthly rent subsequent to the period upto which determination has been made within the time provided therein. Sub Section (5) of Sec. 13 of the Act makes a provision for striking out the defence when there is a failure on the part of the tenant to pay or deposit the amount referred in sub-sec (4) on the date or within the time specified therein. If the landlord makes an application under sub-s. (5) the court is called upon to decide as to whether there has been a failure on the part or the tenant to deposit the amount of rent in court or pay to the landlord referred in sub sec. (4)within the time specified therein. If the court finds that there has been a faiulre or non compliance on the part of the tenant, the court is require to strike out the defence and when the court finds that there has been no such failure or non compliance, then, will refuse to strikeout the defence. The question, therefore, is in the event when the court rejects the landlords application for striking out the defence, finding that there has been compliance by the tenant in making or depositing the amount of rent referred to in sub sec. (4) within the time specified therein, whether against such an order appeal will lie. Mr. K. C. Samdaria, learned counsel for the petitioners submitted that under sub-sec. (5) of S. 13 of the Act, the only order which can be passed by the court, is striking out the defence against eviction. When such an order is passed under Sec. 13 (5) then only such an order would be appealable. But when the court declines to strike but the defence and rejects the application then it is not an order under Sec. 13 (5) of the Act and no appeal would lie under Sec. 22 of the Act. He submitted that under sub-sec. (5) mention has only been made for a positive order and it does not include a negative order and only a positive order can be said to be an order under the Act, which is appealable. He drew analogy from Sec. 39 of the Arbitration Act and also from the provision contained in Sec 43 (1) (d), C. P. C. He referred to a decision of Andhra Pradesh High Court in Puppalla Ramula V. Nagidi Appalaswami (1) on Sec. 39 of the Arbitration Act and Arjunsingh v. Mohindra Kumar (2) on O 43, r. 1 (d) C. P. C. How far these provisions are analogous to the provision contained in Sec. 22 of the Act. Under clause (d) C. P. C. , the provision is, that the appeal shall lie from an order under r. 13,0,9 C. P. C. rejecting the application for an order setting aside a decree passed ex parte. It has been specifically provided under C1. (d) r. 1 of 0. 43 that the appeal would lie against the order rejecting the application under 0 9, r. 13 C. P. C. and 0. 43 does not provide for an appeal where the application is allowed and accepted and the ex parte decree is set aside. I agree with the view that an appeal is a creature of a statute and the right of appeal cannot be extended by implication and no appeal lies where the statute does not make a provision for it. This would mean that where there has been a rejection of the application under 0. 9, r. 13, C. P. C. , then appeal would lie, similarly in Sec. 39 of the Arbitration Act specific mention has been made of the acceptance or refusal or passing of a particular nature of orders. When an order answers the necessary description provided under Sec. 39. then only appeal would lie, otherwise not. Here, the question before me is that when Sec. 22 provides in a general way that the orders passed under this Act are applicable, then what is to be seen is whether the order of rejection of the application is passed under the Act. The question is whether Sec. 13 (5) envisaged only a positive order or even a negative order. The negative order is implicit under Sec. 13 (5 ). The Court has to see as to whether the compliance of Sec 13 (4) regarding making payment or deposi-ting the amount of rent in Court, has been made or not within the time specified in sub sec. (4 ). The order striking out the defence or refusing to strike out, would be based on the rinding regarding compliance of sub-sec (4 ). In case of compliance the order will have to be an order negative in character and in case of non compliance, the order striking out of the defence would be a positive character. In my opinion, Sec. 13 (5) contemplates both i. e. striking out of the defence as well as refusing to strike out of the defence, defending on compliance or non compliance of Sec. 13 (4 ).
(3.) LEARNED counsel for the non petitioner placed reliance on a decision of this Court in Darshansingh vs. Mst. Daso (3 ). In that case, the question was whether the dismissal of an application for restitution of conjugal rights is appealable or not. This Court held that the expression "passing of any decree" under Sec. 25 of the Act would mean decree granting relief of the nature stated in Ss. 9 to13 of the Act and the expression 'decrees' made under the provisions of the Act, would mean decrees granting relief or refusing relief and it was also observed that it cannot be the intention of the legislatures to attach finality to the orders of the District Judge regarding the dismissal of the petitions under Ss. 9 to 13 of the Act. Thus, in that case, the decree granting relief as well as refusing relief, both were considered to be appealable. Similarly, the order striking out the defence and refusing to strike out the defence, both can be considered to be an order passed under the Act. Hence, against such an order of rejection if the landlord's application for striking out the defence an appeal would lie under Sec. 22 of the Act. I, therefore, find force in the submission of the learned counsel for the non-petitioner and I hold that the impugned order is appealable and the present revision is not maintainable. The revision petition is, therefore, dismissed with no order as to costs. It is open to the petitioner to prefer an appeal alongwith application for condonation of delay and the appellate authority as well, may consider the application sympathetically having regard to the fact that petitioner had preferred the revi-sion, thinking that the impugned order is only revisable and not appealable. .;