D. P. GUPTA, J - (1.) THIS revision application arises from an order passed by the learned District Judge, Alwar dated August 24, 1977 in the matter of striking of the defence of the defendant in a suit for ejectment.
(2.) THE facts leading to the filing of this revision application may be briefly stated : The plaintiff non-petitioner filed a suit for ejectment and recovery of arrears on rent of January 12, 1973. After service was effected on the defendant, he appeared on July 5, 1974 and prayed for some time to deposit the arrears of rent, and a week's time was allowed by the court for the purpose. Then again he filed an application on July 18, 1974 for further extension of time to deposit the arrears of rent, which was allowed and the defendant was directed to deposit the arrears of rent etc. upto July 22, 1974. This order was obviously passed under sub-sec. (3) of sec. 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as "the Act" ). The defendant complied with this order and deposited all arrears of rent before the aforesaid date. Thereafter, he continued to deposit the rent month by month, as provided in sub-sec. (4) of sec. 13 of the Act. However, on March 15, 1975 the suit was dismissed on account of the absence of the plaintiff. The plaintiff then filed an application for restoration of the suit and ultimately the suit was restored on its original number on April 24, 1976. The defendant did not make payment of any rent month by month during the aforesaid period and even after the suit was restored on April 24, 1976, the plaintiff submitted an application on March 18, 1977 under sub-sec. (5) of sec. 13 of the Act, praying that the defence of the defendant against eviction be struck off, as the defendant had failed to deposit the rent month by month. On the same day the defendant also submitted an application under sub-sec. (3) of sec. 13 of the Act praying that the arrears of rent may be determined. The trial court, by its order dated April 11, 1977, allowed the application of the plaintiff and struck off the defence of the defendant in respect of eviction, under sub-sec. (5) of sec. 13 of the Act, while the application of the defendant was dismissed. The defendant preferred an appeal which was also dismissed by the learned District Judge on August 24, 1977. That is how the present revision application has been filed in this Court. The argument of the learned counsel for the petitioner is that under the amended provisions of sub-sec. (3) of sec. 13 of the Act, the trial court was bound to determine the arrears of rent to be deposited in court or paid to the landlord by the tenant, even without an application for doing so on behalf of the defendant tenant. It is no doubt true that the amended provisions of sec. 13 (3) of the Act have dispensed with the earlier requirement that the defendant tenant should submit an application for determination of arrears of rent etc. , so that the same may be deposited in court or be paid to the landlord by the tenant. It is the duty of the court now, under the amended provisions of sub-sec. (3) of sec. 13 of the Act, to determine the amount of arrears of rent and interest thereon at the rate of 6% per annum. But the provisions of sub-sec. (3) of sec. 13 as amended can only be made applicable to a case in which no order was passed under the earlier provisions of sub-sec. (3) or sub-sec. (4) of sec. 13 of the Act. if at the time of the first hearing of the suit, the unamended provisions of the Act were applicable, as they existed before the amendment was introduced therein by the Ordinance No. 26 of 1975 or the Amending Act No. 14 of 1976 and if an order was passed by the court under the provisions of sub-sec. (3) or sub-sec. (4) of sec. 13 of the Act, as they existed at that time, then there is no further requirement under the amended provisions of sub-sec. (3) of sec. 13 of the Act that the trial court should still proceed to pass a fresh order under the said provisions. It cannot be disputed that the provisions of sub-sec. (3) of sec. 13 of the Act, introduced by the aforesaid amending legislation, are not retrospective in character and they can only be made applicable if no such order has been passed earlier in the suit under the corresponding provisions which existed at that time, prior to the amendment of the Act. In the instant case, the trial court had passed an order on July 18, 1974 directing the defendant tenant to deposit all arrears of rent etc. by July 22, 1974 which order squarely fell within the provisions of sub-sec. (3) of sec. 13 of the Act, as they stood before the aforesaid amendment was introduced in the year 1975 in sub-sec. (3) of sec. 13 of the Act. Once an order under sub-sec. (3) of sec. 13 of the Act, as it then stood, was passed and was a so duly complied with by the defendant tenant, there could be no necessity of passing a fresh order under the very same provisions after the amendment thereof in the year 1975. Learned counsel for the petitioner argued that the suit having been dismissed for default on March 15, 1975 the trial court should have proceeded to pass a fresh order under sub-sec. (3) of sec. 13 of the Act, as amended, after the suit was restored on April 24, 1976, as the amended provisions had come into force by then. This contention of the learned counsel for the petitioner is also devoid of any force, because the effect of restoration of a suit under the provisions of Order 9, Rule 9, C. P. C. is that the parties are placed exactly in the same position in which they were at the time of the dismissal of the suit and the ancillary orders passed earlier in the suit are automatically revived, if those orders are not specifically vacated at the time of dismissal of the suit. The order passed under the unamended provisions of sec. 13 (3) of the Act, having been duly complied with by the defendant on or before July 22, 1974, no question arose, after the restoration of the suit, to determine afresh the arrears of rent and interest due thereon. As a matter of fact, as I have already pointed out above, the defendant was not in arrears of rent at the time when the suit was dismissed for default on March 15, 1975 and as such there was no question of determination any arrears of rent or of payment of interest thereon at that time. After the suit was revived and it was restored to its original number on April 24, 1976, the tenant was bound to deposit in court or pay to the landlord month by month the monthly rent by the 15th of each succeeding month, under the provisions of sub-sec. (4) of sec. 13 of the Act. Of course, the rent for the period from March 1975 to April 1976 could have been paid or deposited after the suit was restored to its original number, by May 15, 1976. The defendant having failed to do so, in the present case, the courts below were fully justified in striking off the defence of the defendant against eviction, under the provisions of sub-sec. (5) of sec. 13 of the Act. Learned counsel for the petitioner has sought to obtain support for his submission from the judgment of a learned Single Judge of this Court in Gulam Mohammad vs. Yakub Beg (Civil Second Appeal No. 57 of 1977, decided on December 9, 1977 ). But the facts of that case are clearly distinguishable in as much as there was no order passed in that case earlier either under sub-sec. (3) or under sub-sec. (4) of sec. 13 of the Act and the defendant had submitted an application under sub-sec. (4) of sec. 13 of the Act but no order was passed on such an application by the trial court, on the alleged ground that the provisions of sub-sec. (4) could not be complied with as the period of 2 months had already elapsed. In these circumstances, the learned Judge he'd that the defendant could take advantage of the amended provision of sec. 13 (3) of the Act and that an order under that provision could be passed determining the amount of arrears of rent etc. In that case, the defendant did make an attempt to get the arrears of rent etc. determined and the learned Judge observed that if the trial court failed to determine the same, the defendant could not be allowed to suffer on account of a lapse on the part of the court.
(3.) BUT, in the present case, the defendant applied for time for making the deposit of arrears of rent which was allowed and as a matter of fact the defendant did comply with the order passed under the unamended provisions of sub-sec. (3) of sec. 13 of the Act. Thus, if the suit would not have been dismissed for default, then there would have been no question of any arrears of rent being due from the defendant, as all arrears of rent had already been deposited by the defendant tenant on or before July 22, 1974, as directed by the trial court. What the defendant was required thereafter to do was only to deposit the rent month by month. BUT after the restoration of the suit, the defendant not only failed to deposit the amount of rent which had become due between March 1975 and April 1976, but he further failed to pay or deposit even the rent for the month of April 1976 which should have been paid or deposited on or before 15th of May, 1976, nor the rent for the subsequent months was deposited by the defendant within 15 days of its falling due. Thus, I find neither law nor equity in favour of the petitioner in the present case. Thus, the trial court was right in refusing to accept the request of the defendant for determination of arrears of rent again, after the restoration of the suit and the plea of the defendant in this regard was rightly not entertained. As I have already observed above that once an order having been passed under sub-sec. (3) of sec. 13 of the Act, there was no necessity for the court to pass a fresh order under the very same provision, after the amendment thereof. I do not find any substance in the revision application and the same is dismissed with no order as to costs. .;