S. C AGRAWAL, J. - (1.) THIS Second appeal by the defendant, Kalyanmal arises out of a suit for ejectment filed by Smt. Shakuntala Devi respondent. It relates to residential premises situated at Sikar. The plaintiff sought eviction of the appellant on two grounds, namely, default in payment of rent and reasonable and bona fide personal necessity. The ground of reasonable bona fide personal necessity has been negatived by both the courts below and the suit has been decreed on the ground of default in payment of rent.
(2.) ACCORDING to the case set up in the plaint, the defendant had committ-ed default in payment of rent for the period from 1st November, 1975 to 30th May, 1976 The suit was filed on 24th June, 1978. In accordance with the provisions of sub-section (3) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act') the trial court, namely, Munsiff & Judicial Magistrate, First Class, Sikar, by his order dated 25th January, 1979 determined the provisional amount of rent payable by the defendant-appellant upto 31st January, 1979. By the said order the defendant-appellant was directed to deposit Rs. 420/- towards rent and 42. 50 towards interest. The defendant deposited the aforesaid amount in accordance with the order dated 25th January, 1979 within the period prescribed by law. The rent for the month of February, 1979 was, however, deposited by the defendant on 9th April, 1979 vide challan dated 7th April, 1979. The plaintiff submitted an application dated 26th November, 1980 wherein it was submitted that the defendant had committed default in payment of rent for the month of February, 1979 and it was sub-mitted that the defendant may be treated as defaulter and suit may be suitably decreed. The defendant submitted a reply dated 19th December, 1982 to the said application. No orders were, however, passed on the application dated 26th November, 1980 submitted by the plaintiff and the Munsiff finally disposed of the suit by his judgment and decree dated 17th March, 1981 whereby he decreed the suit on the view that the defendant had committed default in payment of rent. The defendant filed an appeal against the said decree wherein he submitted that he is employed in the Telephone Department and he was posted at Palsana Annoli in the month of February, 1979 and on account of the said posting he was not able to meet his lawyer and for that reason the rent for the month of February could not be deposited in time. The said appeal of the appellant was decided by the Civil Judge, Sikar by his judgment and decree dated 15th April, 1983 whereby the decree of the Munsiff was affirmed As regards the plea of the appellant about condonation of delay in depositing the rent for the month of February, 1979, the Civil Judge held that the provisions contained in sub-section (4) of Section 13 of the Act are mandatory in nature and in case the tenant fails to deposit the future rent within 15 days from the date the rent was payable the court has no option but to pass a decree for ejectment in view of sub-section (5) of Section 13 of the Act. Feeling aggrieved by the aforesaid judgment and decree passed by the Civil Judge, the defendant has filed this appeal. I have heard Shri R. M. Lodha, the learned counsel for the appellant in support of appeal and Shri R. S. Kejriwal the learned counsel for the plaintiff respondent. Shri Lodha has urged that the Civil Judge was in error in holding that the provisions of sub-section (4) of Section 13 of the Act are mandatory in nature and the Court is bound to pass a decree for ejectment in the case where the tenant fails to deposit rent in accordance with the provisions of sub-section (4) of section 13 of the Act. The submission of Shri Lodha is that in the present case the appellant had a very reasonable explanation for the delay in depositing the rent for the month of February, 1979 and that it was incumbent upon the courts below to have considered the said explanation and that a decree on the ground of default of payment of rent could not be passed in the facts and circumstances of the case. In support of his aforesaid submission Shri Lodha has placed reliance on the decision of the full bench of this Court in Vishan Das us. Savitri Devi (1 ). Shri Lodha has also urged that the only consequence of failure to deposit the rent for the month of February, 1979 within the period prescribed under sub-section (4) of Section 13 would be that the defence of the defendant with regard to default could be struck out, but even after striking out of the defence it was necessary for the plaintiff to establish the case set up by him in the plaint that the defendant had committed default in the payment of rent for a period of six months. Shri Lodha has pointed out that in the present case both the courts below have found the defendant-appellant to be defaulter on the ground that he had committed default in payment of rent for the month of February, 1979 and that no finding has been recorded by the courts below that the defendant had committed default in payment of rent for a period of six months. The submission of Shri Lodha is that in the absence of such a specific finding that the defendant appellant had committed default in payment of rent for a period of six months, no decree of eviction on the ground of default in payment of rent under section 13 (l) (a) of the Act could be passed. Shri Kejriwal, the learned counsel for the plaintiff respondent has submitted that the decision of the Full Bench of this Court in Vishan Das vs. Savitri Devi (supra) does not lay down the correct law in so far as it holds that the provisions of Section 5 of the Limitation Act 1963 can be applied in the matter of deposit of rent under section 13 (4) of the Act in as much as Section 5 of the Limitation Act is applicable only to appeals and applications and it does not apply to periods fixed for deposits. I have given my due consideration to the aforesaid submissions and in my view the submission of Shri Lodha merits acceptance. The only consequence of failure on the part of the defendant appellant to deposit the rent for the month of February, 1979 within the prescribed period under section 13 (4) of the Act could be that the defence of the defendant appellant with regard to default in payment of rent should be struck out under sub-sec. (5) of section 13 of the Act. A Full Bench of this Court in Vishan Das vs. Savitri Devi (supra) has laid down that the provisions of sub-section (5) of Section 13 are not mandatory but are directory in nature and in the event of non-compliance of said sub-section (4)of section 13 it is not incumbent upon the court to strike out the defence and if the court was satisfied that there were extenuating circumstances explaining the delay in the deposit, the Court would be justified in not striking out the defence Shri Kejriwal has not assailed the correctness of this part of the decision of the Full Bench. In the present case 1 find that the trial court did not take any action under sub-section (5) of Section 13 of the Act on the application dated 26th November, 1980 submitted by the plaintiff. No order was passed by the trial court striking out the defence of the defendant. Even if the defence of the defendant had been struck out, it was necessary for the plaintiff to establish her case that the defendant had committed default in payment of rent for a period of six months. Neither the trial court nor the first appellate court have recorded a finding that the defendant has committed a default in payment of rent for a, period of six months. They have decreed the suit of the plaintiff respondent by holding the defendant to be a defaulter, only for the reason that he had committed default in payment of rent for the month of February, 1979. In the circum-stances the judgment and decree of both the courts below cannot be upheld and must be set aside and the matter should be remanded to the trial court for con-sideration of question as to whether the defence of the defendant appellant should be struck out under sub-section (5) of Section 13 of the Act on account of default in payment of rent for the month of February, 1979. While doing so the court will take into account the principles laid down by the Full Bench of this Court in Vishan Das Vs. Savitri Devi (1) and the explanation offered by the defendant for the delay in making the deposit. In case the trial court decides to strike out the defence of the defendant under section 13 (5) of the Act the court may proceed with the adjudication of the suit and while doing so examine whether the plaintiff has succeeded in establishing her case that the defendant has committed default in payment of rent for a period of six months.
(3.) THE appeal is, therefore, allowed, the judgment and decree dated 15th April, 1983 passed by the Civil Judge, Sikar in Civil Regular Appeal No. 49/81 (21/81) passed by the Addl; Munsiff & Judicial Magistrate First Class, Sikar in Civil Suit No. 127 of 1979 are set aside and the suit is remanded to the Addl. Munsiff First Class, Sikar for decision in accordance with the directions contain-ed in this judgment. Both the parties are directed to appear before the Addl. Munsiff Sikar on 12th December, 1988. THE original record may be returned. No order as to costs. .;