S. K. MAL LODHA, J. - (1.) THIS is an application in revision under sec. 115, C. P. C. by the plaintiffs against the order of the Additional District Judge, No. 2, Jodhpur, dated September 10, 1973, by which, he reversed the order of the Additional Munsif, No. 1, Jodhpur, dated January 22, 1973.
(2.) A suit was instituted by Ramlal, Hukamsingh and Prithvisingh against Shankar for arrears of rent and ejectment in the court of Munsif City, Jodhpur, on October 24, 1s68. Ramlal and Hukamsingh have died and their legal representatives were brought on record. It was averred that certain apartments mentioned in para 2 of the plaint forming a portion of building situated at Station Road, Jodhpur, described in para 1 of the plaint were taken on rent by the defendant. The rate of rent as stated was Rs. 65/-p. m. exclusive of Rs. 40/-p. m. as charges for electricity and water. In para 5 of the plaint, it is alleged that the plaintiffs filed a suit for ejectment in respect of premises in dispute against the defendant-non-petitioner, on November 12, 1964. One of the grounds for ejectment in that suit was that the defendant had committe default in payment of rent. One of issues was whether the defendant wad defaulter. In that suit, while deciding issue No. 1, the Additional Munsiff held that the defendant was defaulter in payment of rent. However, during the pendency of the suit, the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) was amended by Act No. XII of 1965, which came into force w. e. f. June 9, 1965. Thereupon, the defendant, submitted an application under sec. 13a and Sec. 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, (No. XVII of 1950) (which will for the sake of brevity be referred hereinafter as 'the Act') as amended by Act No. XII of 1965, stating that as he has already deposited the entire rent on the first day of hearing, he should be given benefit of the aforesaid provisions of the Act. The Additional Munsif, No. 1, Jodhpur, gave benefit under sec. 13 (4) of the Act and dismissed the suit. An appeal was preferred by the plaintiff against the judgment, which was also dismissed by the Additional District Judge, No. 2, Jodhpur, on September 10, 1973. In this suit, the plaintiffs have alleged that the rent was due from the defendant from November 1, 1967 to July 31, 1968 and as such, the defendant has committed in default payment of rent. In para 10 of the plaint, it is mentioned that the amount of Rs. 715/- was due from the defendant on account of rent and damages for use and occupation and Rs. 220/- on account of electric and water charges, inclusive of hire of the sub-meter. However, plaintiffs had stated that defendant had deposited Rs. 765/- in the court under sec. 19 A, of the Act and this amount would be received by the plaintiffs. After giving a credit of this amount, a sum of Rs. 170/- would only remain due from the defendant. It was clearly mentioned that the plaintiffs would withdraw the amount of Rs. 765/- deposited by the defendant reserving their rights i. e. without prejudice to their right. As such Rs. 765/- were not claimed in the suit. The suit was registered on October 28, 1968 and December 10, 1968 was fixed for filing of written statement. On December 10, 1968, on behalf of the tenant-defendant, Shri Satyanarain Advocate, filed a power and took time for filing the written statement. The next date fixed for filing the written statement was January 9, 1969. Even, on that date, the time was sought for filing the written statement and it was filed on January 13, 1969. The defendant did not pay or deposit any amount under sec. 13 (3) of the Act. He did not make any application under sec. 13 (4 ). On December 11, 1972, an application was submitted on behalf of the plaintiffs that the defendant had not deposited the entire rent on the first day of hearing i. e. December 10, 1968 and that he (tenant) has not raised any dispute under sec. 13 (5) of the Act. It was, therefore, prayed hat his defence against eviction may be struckout. This application under sec. 3 (6) was resisted by defendant by filing a reply dated December 14,1972 on various grounds; The learned Munsif by his order dated January 2, 1973 struck out defence against the eviction. Being aggrieved by the order of the Additional Munsif, No. l, Jodhpur dated January 2, 1973, the defendant went in appeal under sec. 22 of the Act. The Additional District Judge, No. 2, Jodhpur, accepted the appeal and set aside the order dated January 2, 1973 striking out the defence against eviction and dismissed the application under sec. 13 (6) of the Act. Being dis-satisfied with the order of the learned Additional District Judge, No. 2, Jodhpur, dated September 10, 1973, this revision has been filed by the plaintiffs as aforesaid. I have heard Mr. Chopra, learned counsel for the petitioners and Mr, S. N. Chhangani, learned counsel for the non-petitioners and have also carefully gone through the record of the case. The Judge of the first appellate court has recorded the following findings ; - (1) that the plaintiffs' suit for eviction is not based on the ground mentioned in sec. 13 (l) (a) and as such the provisions of sec. 13 (5) and (6) of the Act are not attracted; (2) that it was not necessary for the trial court to have determined the rent under sec. 13 (5) of the Act as it stood then, as no application under sec. 13 (5) of the Act was filed on the first day of hearing. Learned counsel appearing on behalf of the petitioners urged that the learned Additional District Judge has exercised his jurisdiction illegally when he held that the suit was not based on the ground, mentioned in sec. 13 (l) (a) of the Act. On the other hand, Mr. Chhangani, learned counsel for the defendant (tenant)-non-petitioner submitted that six months' rent was not claimed in the suit, and, therefore, sec. 13 (1) (a) is not attracted. In this connection he invited my attention to para 10 of the plaint, wherein, the plaintiffs have averred that total Rs. 935/- W3re due fron the defendant and as he had deposited a sum of Rs. 765/- a sum of Rs. 170/- is outstanding. On the basis of these averments, the learned counsel contended that on the date of institution of the suit, two months' rent amounting to Rs. 170/- was only due. He, therefore, urged that as six months' rent was not claimed in the suit, sec. 13 (1) (a) is not attracted and as such the provisions of sec. 13 (4), (5) and (6) as they stood then, could not be invoked. Mr. Chhangani, learned counsel for the tenant further submitted that as the plaintiffs had voluntarily, adjusted Rs. 765/-which were deposited by the tenant under sec. 19a of the Act, there is waiver on the part of the landlords so far as defaults in payment of rent are concerned. Learned counsel further urged that in view of the decision of the Full Bench in Harakchand vs. State of Rajasthan (l), the revision is not maintainable.
(3.) IN view of the submissions made by the learned counsel for the parties, the first question that crops up for consideration is whether the revision against the impugned order is maintainable. Sec. 22 of the Act deals with Appeal and Revision. It also provides for forums for revision or appeal. Proviso to sec. 22 (2) lays down that nothing contained in sec. 22 (1) shall affect the powers of the High Court for Rajasthan in revision. The conditions for exercising the power of revision are those, which are provided in sec. 115, C. P. C. If, one of the conditions laid down in sec. 115, C. P. C. is satisfied, the High Court has been empowered to interfere in revision against the appellate order passed under sec. 22 (1) of the Act. It is under clause (c) of sec. 115, C. P. C. that the High Court can interfere with the order of the Subordinate Court, in which no appeal lies, thereto if the sub ordinate court exercises its jurisdiction illegally or with material irregularity. It is well settled by the various decisions of their Lordships of the Supreme Court, that the words "illegally" and "with material irregularity" as used in Clause (c) of Sec. 115, C. P. C. do not over the errors of fact or of law. IN Harakchand's case (l), this court has laid down that illegality or material irregularity must have occurred in the manner, in which the jurisdiction of the Subordinate court is exercised i. e. in the manner on which the case is heard or decided. Under clause (c) of sec. 115, C. P. C. before interfering with an order, it will have to be examined whether it has been passed in breach of the provisions of law or there have been such material defects of procedure which had affected the decision of the case. The next point that calls for determination is whether the suit was based on the ground of default in payment of rent as envisaged by sec. 13 (l) (a) of the Act. Sec. 13 (1) (a) is as under: - "sec. 13 Eviction of tenants - (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied - (a) that the tenant has neither paid nor tendered the amount of rent due from him for six months, or Default in payment of six months' rent is a ground for eviction. If the tenant does not pay or tender the amount of tent due from him for six months', he renders himself liable to eviction. The words used in clause (a) of Sec. 13 (1) of the Act, are "neither paid nor tendered. " It is thus clear that if the tenant has not made payment of rent for six months' or when it fell due or if he has not tendered rent for six months, he would be liable to be evicted. The plaintiffs have averred in para 10 of the plaint that the rent from 1-11-1967 to 23-9-1968 and damages for use and occupation from 24-9-1968 to 30-9-1968 at the rate of Rs. 65/- per month i. e. Rs. 715/- are due from the tenant. Thus, as per averments made in para 10 of the plaint, rent for more than six months' has been stated to be due from the tenant. The tenant had submitted an application under sec. 19a, on August 21, 1968 and deposited Rs. 765/- in the court and after giving credit of this amount, Rs. 170/-remained outstanding. The plaintiffs have mentioned that they would withdraw the amount without prejudice to their right. The words used in para 10 of the plaint are Gdks dks ljf{kr j[krs gqos mbkosxsa Here reference may be made in Martin & Harris (P) Ltd. vs. Prem chand (2 ). The Full Bench answered the second question referred to it as under: - "in case a tenant has deposited rent under sec. 19a of the Act, he would not be required to make a fresh deposit of the same amount in Court under sub-sec. (4) of sec. 13 of the Act. But such a tenant must raise a dispute in respect thereof, on the first day of hearing of the suit, under sub-sec. (5) of sec. 13 of the Act and, in that event, the Court would allow the tenant an adjustment of the amount so deposited by him while calculating the amount payable to the landlord under the aforesaid provision and would direct the landlord to receive payment of the amount already in deposit under sec. 19a of the Act and also direct the tenant to make payment of the remaining amount, if any, to the landlord. In this view of the matter, Saligram's case has been correctly decided. " In Saligram vs. Narottamlal (3), the following question was referred to the Division Bench for answer: - "whether 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-sec. the defence against eviction cannot be struck out under sub-sec. (6) for non-compliance of sub-sec. (4) in a case where a tenant takes the plea that he has not committed default in payment of rent as contemplated by sec. 13, sub-sec. (1) (a) of the Act. " Paras 4 and 5 of the report may usefully be quoted- "we are of the opinion that all that is required for the applicability of sub-sec. (4) is that the suit for eviction must have been filed on the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section. A suit is said to be based on a particular ground if the plaint contains an allegation that the ground subsists. Sub-sec. (4) would therefore be applicable even in a case where in the plaint a false allegation is made that the tenant has committed default as envisaged in clause (a) of sub-sec. 13 (1 ). " "5 If the tenant has actually paid the full amount of rent to the landlord he can raise a dispute about it on the first day of hearing and the court shall determine under sub-sec. (5) of sec. 13 whether the allegation made by the tenant is true. " It was held in Saligram's case (3) that if the tenant has made a deposit under sec. 19a, he can point this out in his application made on the first day of hearing and the court can direct the payment of rent already deposited under sec. 19 A, to the landlord and that the tenant will not be required to pay over again the amount of rent which he has already deposited under sec. 19a. ;