N. M. KASLIWAL, J. - (1.) THIS revision petition is directed against the order of Additional District Judge No. 1, Alwar, dated 12th April, 1979 whereby he dismissed the applications dated 29th March, 1978 and 7th February, 1979, of the plaintiff petitioner for striking out the defence of the defendant-respondent against eviction.
(2.) THE plaintiff-petitioner filed a suit for ejectment of a shop on the ground of default in the payment of rent for more than six months and reasonable and bona fide necessity in the court of Munsif Alwar on 9th December, 1972. THE defendant non-petitioner filed an application under sec. 13 (4) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. (hereinafter called 'the Act' ). THE learned Munsif vide his order dated 10th February, 1973, determined the amount of rent and directed the defendant to deposit the same in court or to pay to the plaintiff within 10 days and to pay the subsequent rent month by month by the 15th of each succeeding month. During the pendency of the suit the Act was amended by Amending Ordinance No. 26 of 1975 which was later on replaced by the Amending Act No. 14 of 1976, whereby a new Sec. 13a was inserted. THE defendant moved an application under sec. 13a of the Amending Ordinance and the trial Court determined Rs. 59. 25 p. to be deposited by the defendant. THE defendant deposited the said amount in pursuance to the order of the Court. THE learned trial Court thereafter dismissed the plaintiff's suit on 13th November, 1976. THE plaintiff preferred an appeal before the learned District Judge, Alwar which was transferred to the Additional Judge No. 1, Alwar for its disposal. During the pendency of the appeal the plaintiff appellant moved an application on 29th March, 1978 under sec. 13 (5) of the Act that in pursuance of the trial Court's order dated 10th February, 1973, the defendant having not deposited the rent by the 15th of each succeeding month, his defence is liable to be struck off. Another application was moved on 7th February, 1979 to the same effect. THE learned Additional District Judge dismissed both the applications by his impugned order dated 12th April, 1979. Hence this revision. Learned counsel for the petitioner has contended that the learned Additional District Judge had committed a material irregularity in exercise of its jurisdiction in holding that sec. 13 (5) of the Act connot be made applicable to the appellants. It is contended that the appeal is nothing but a continuation of the suit proceedings. Once an appeal is filed the whole suit is open before the appellate Court and all the provisions applicable to the suit are applicable to the appeal. The powers of the appellate Court were co-extensive with the trial Court as regards sec. 13 (5) of the Act and the defendant having not deposited the subsequent rents month by month, his defence was liable to be struck off. Reliance is placed on Abdul Hamid vs. Hakeem Ahamd Ullah Khan (1 ). It is further argued that on the plain reading of the language of sec. 13 (4) of the Act, the tenant is bound to deposit in court or to pay to the landlord month by month the monthly rent subsequent to its determination by the 15th of each succeeding month. The phrase 'in a suit' or 'during the pendency of the suit' is conspicuously absent in sec. 13 (4) and thus the tenant was bound to pay the rent by the 15th of each succeeding month even during the pendency of first and second appeal as the case may be. It is also submitted that the learned Additional District Judge was wrong in holding that if a party had taken advantage under sec. 13a, he is discharged from the obligation of sec. 13 (4 ). The two provisions should be reconciled and the provisions of sec. 13a do not in any manner, wipe out the liability of the tenant to pay the rent month by month as required under sec. 13 (4 ). It is also contended that though the trial Court had ordered the defendant to deposit Rs. 59. 25 p. but he actually deposited Rs. 59/- only as such he was not entitled to take advantage of the provisions of sec. 13a. It would be profitable to read sec. 13 (4) and (13 (5) of the Act before Amending Act came into force: "s. 13 (4) - In a suit for eviction on the ground set forth in clause (a) of sub-sec. (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 calculaled 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 up to 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 pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate. " "s. 13 (5)-If in any suit referred to sub-sec. (4), there is any dispute as to the amount of rent payable by the tenant, the court shall determine having regard to the provisions of this Act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order in accordance with the provisions of sub-sec. (4 ). " ' There cannot be any dispute that in case sec. 13a would have bean inserted, the defendant was duty bound to comply with the provisions of sec. 13 (4) and to deposit the rent month by month subsequent to the payment or deposit of rent under sec. 13 (4 ). The Legislature by inserting sec. 13a laid down a special provision relating to pending and other matters. I would read sec. 13a clause (a) and (b) which are relevant for the purpose of determination of the controversy in the present case: "sec. 13-A. Special provisions relating to pending and other matters Notwithstanding anything 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 on 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 landlord, 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 proceeding, the court 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. " The opening words of section 13a start with a non-obstainte clause "notwithstanding anything to the contrary in this Act as it existed before the commencement of the Amending Ordinance or in any other law. " Thus it over-rides any provisions to the contrary in the Act. The reading of clause (a) and (b) of Sec. 13a makes it abundantly clear that no court shall in any proceeding pending on the date of commencement of the Amending Ordinance pass any decree in favour of the landlord for eviction of a tenant on the ground of non-payment of rent if the tenant applies under clause (b) and pays the amount within time as directed by the Court. A time limit of 30 days only had been provided under clause (b) from the date of commencement of the Amending Ordinance for making an application by the defendant in every such proceeding. If any application was moved within that time the court was required to determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon @ 6% per annum and costs of the suit allowable to the landlord and if this amount fixed by the Court was paid by the tenant, the proceeding was to be disposed of as if the tenant had not committed any default. Thus it it clear that if the defendant-tenant in the present case had moved an application under section 13a and the court had determined the amount of Rs. 59. 25p. and the same was deposited, the proceeding have to be disposed of as if the tenant had not committed any default and the suit on the ground of default under sec. 13 (1) (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months automatically comes to an end. When the ground of eviction on the basis of default under sec. 13 (1) (a) of the Act itself falls through there is no question of complying sec. 13 (4) or (5) of the Act. The provisions of sec. 13a were introduced by the Legislature as a measure of special benefit to the tenants in the matter of defaults in the payment of rent and all tenants against whom any proceeding in the trial Court or in appeals or revisions were pending at that time they could resort to the benefit of this provision provided they submitted application within 30 days from the commencement of the Amending Ordinance and also paid the amount so determined by the Court within the time allowed. If the tenant fulfilled the requirements of clause (a) and (b) of sec. 13a then the proceedings had to be disposed of as if the tenant has not committed any default. Learned counsel for the petitioner has not brought any decision to my notice contrary to the view taken by me. If the matter is seen from another angle then also it would be clear that there is no force in the contention of the learned counsel for the petitioner. The trial Court had determined the amount on the application of the defendant-tenant by its order dated 16th January, 1976 and thereafter the suit itself was decided on 30th Nov. , 1976. During this period no application was moved by the plaintiff landlord in the trial Court that the tenant should have deposited the rent month by month after 16th January, 1976 nor had made any request for striking of the defence against eviction on this ground. Learned counsel for the petitioner in this Court as well has not argued that such application was moved by the plaintiff in the trial Court. It is only during the pendency of the appeal that the plaintiff filed two applications on 29th March. 1978 and 7th February, 1979 for striking out the defence of the defendant against eviction on the ground that the defendant had no deposited the rent month by month. If there was no liability to deposit the rent month by month in the suit itself after the payment of the amount determined under sec. 13a, how can any liability arise on the defendant to deposit the rent month by month during the pendency of the appeal. As already observed above the proceeding having been disposed of as if the tenant has not committed any default under sec. 13a (b), no question remains for depositing the amount month by month during the pendency of the suit or in the appeal. The decision of Abdul Hamid's case (supra) relied upon by the learned counsel for the petitioner is not at all relevant to the present controversy as no question of applicability of sec. 13a was under consideration in that case. As regards the contention of the learned counsel for the petitioner that the defendant did not comply with the provisions of sec. 13a even if he did not deposit the entire amount of rent i. e. Rs. 59. 25 p. but only deposited Rs. 59/ -. Suffice it to say that before the lower appellate Court itself when a tender for Rs. 59. 25 p. was shown, the plaintiff-appellant did not press this point. Thus from the tender which mentions a sum of Rs. 59. 25 p. itself it would be presumed that Rs. 59. 25 p. was deposited by the defendant tenant. In any case this point was also given up by the plaintiff himself before the lower appellate Court. Thus in my view there is no force in the revision and the same is dismissed summarily. . ;