S.C.AGGRAWAL,J. - (1.) THIS revision is directed against the order dated 4th August, 1978 passed by the Munsif Magistrate (West ) Jaipur City, and the order dated23rd july,1986, passed by the additional District judge No. 4, Jaipur city, jaipur, upholding the said order dated 4th August 1978
(2.) NON -petitioner had filed a suit for eviction against the petitioner on the ground of default in payment of rent and in that suit arrears of rent were provisionally determined by the Munsif, by order dated 13th February,1976. It appears that subsequently there was some default on the part of the non petitioner in payment of rent and an application was submitted by the non -petitioner on 14th february, 1978for striking out the defence of the petitioner the said application of the non -petitioner was allowed by the Munsif by his order dated 4th August. 1978 where by the defence of the petitioner was struck out. the petitioner filed an appeal which was dismissed by the additional District judge by has judgment dated 23rd july, 1986 Hence this Revision. I have heard Shri A.k. Bhandari the learned Counsel for the petitioner and Shri J.P. Goyal the learned Counsel for the non petitioner. Shri Bhandari has submitted that the full Bench of this court in Vishan Das v. Savitri devi 1988 RLR 1 has held that the provisions of sub Section (5) of Section 13 of the Rajasthan premises (control of Rent and Eviction)Act 1950were not mandatory in nature and if is open to the court to strike out or not to strike any the defence of the tenant keeping in view the facts and circumstances of the particular case. the submission of Shri Bhandari is that prior to the aforesaid decision the view was that the provisions of Sub -section (5) of Section 13 the Rahasthan premises (control of rent and Eviction ) act 1950 were not mandatory in nature and that both the courts below in passing the orders dated 4th August, 1978 and 23rd July,1986, have proceeded on that basis.
(3.) IN view of the decision of the Full Bench of this Court in Vishan Das v. Savitri Devi (supra), wherein it was held that Sub -section (5) of Section 13 is not mandatory in nature, the orders passed dated 4th August, 1978 and 23rd July. 1986 cannot be upheld and the matter should be reconsidered by the courts below in the light of the principles laid down by the Full Bench in Vishan das v. Savitri Devi (supra). The revision is therefore, allowed, the order dated 4th August, 1978 passed by the Munsif Magistrate (West) Jaipur City, Jaipur as well as the order dated 23rd July, 1986 passed by the Additional District Judge No. 4, Jaipur City, Jaipur in Civil Misc. Appeal No. 36/79 are set aside and it is directed that the Munsif shall consider the question with regard to the striking out of the defence of the petitioner in the light of the principles laid down by Full Bench of this Court in Vishan das v. Smt. Savitri Devi (supra). No order as to costs.;