G. M. LODHA, J. - (1.) THIS is landlord's second appeal.
(2.) THE plaintiff landlord filed a suit for possession alleging that the defendants were trespassers. THE trial court on the basis of the pleadings of the defendant that the defendant was a tenant, decreed the suit holding that the defendants have committed defaults in payment of rent. This judgment was reversed by the first appellate court so far as it relates to the ejectment. THE first appellate court has held that the suit was not filed under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 nor any of the grounds mentioned therein under Section 13 of the Act was alleged in the plaint. In view of this, because Section 13 of the Act provides various remedies, to the defendant-tenant to ward-off against the ejectment, even if the suit has been filed and default has been committed; therefore, the suit for ejectment could not have been decreed in the absence of the pleadings merely because the defendant alleges, that he was a tenant. THE decree for rent was maintained and upheld by the first appellate court- Mr. Agarwal, learned counsel for the appellant, submits that the first appellate court has committed serious error of law in reversing the judgment, merely on the ground that there was no pleading of the plaintiff in respect of the ejectment on the ground of default, as required by Section 13 (1) (a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 hereinafter referred to as the Act According to him since the defendant in his written statement has alleged that he was a tenant and further because it has been found as a matter of fact, that he failed to make payment of rent for about 22 months, it was an admitted ease of default. It is well established in a given case, if an alternative case was available to the plaintiff, and the defendant admits the same in his pleading, the court may not insist for specific pleading of the plaintiff and may grant relief in the form of decree on the basis of the admission of the defendant. The case of a claim for ejectment on the basis of default stands on different footing under the provisions of the Act. Whenever, a decree for ejectment is claimed on the ground of default, the defendant has got a statutory remedy to deposit the rent etc. on first date of hearing or raising a dispute and claim determination of rent and then getting the suit for ejectment on the ground of default dismissed on the payment of rent within the time which the court may allow. This is a special law and the provisions regarding the various alternatives which the defendant tenant can avail, for getting the claim of ejectment on the basis of the default dismissed from the court are contained under the provisions of Section 13 of the Act. Unless the plaintiff expressly and specifically claims ejectment on the ground of default in his plaint, the defendant cannot be expected to avail of the remedies under Section 13 of the Act by depositing the rent on the first date of bearing or by raising dispute. I am of the opinion that the first appellate court was correct in holding that in ejectment based on the ground of default under the provisions of the Act, unless the plaintiff claims ejectment on the basis of the default in his plaint by specific averment to that effect it cannot be expected from the defendant that he should comply with the provisions of Section 13 of the Act and on failure to do so, face the consequenced of ejectment. The mere fact that the defendant alleges in his written statement that he was not a trespasser but a tenant could not result in saddling him with the liability of ejectment for nonpayment of rent unless a specific plea is taken by the plaintiff in his plaint. The remedies allowed to the defendant under Section 13 of the Act are statutory in nature, and the legislature in its wisdom has provided these remedies to provide protection against ejectment on the basis of the default. That being so, by the process adopted by the trial court of giving a decree of ejectment, it would result, in depriving the defendant from availing of the statutory remedies against ejectment on the basis of the default, which cannot be permitted.
(3.) I am, therefore, of the view that the judgment of the first appellate court, dismissing the suit for ejectment but decreeing the suit for rent calls for no interference. The appeal therefore, fails and is hereby dismissed. .;