S. C. AGRAWAL, J. - (1.) THIS Second appeal is by the tenant in a suit for evicition from residential permises stituated in Ajmer. The palintiff -respondent filed a suit for eviction on the ground of default in payment of rent for the period from 10th July, 1977 to 9th November, 1979. The month of tenancy was from 10th of each clender month. According to the plaintiff the rent for the permises was Rs. 70/ - per month. The appellant contested the suit and claimed that the rent for the permises was Rs. 51/ - per month and he further asserted theat the respondent had accepted the rent only upto the month of March, 1977 and therafter money order was sent ot the respondent which was refused. The Munsiff & Judicial Magistrate Ajmer Cith (West), Ajmer by order dated. The 27th May, determined the pervisional rent at Rs. 70/ - per month and directed the appellant ot pay a sum of Rs. 2580/ - was on account of arrears of rent and interest upto 9th May, 1980. The said amount was deposited by the appellant within the prescribed period. The rent for the period from 10th May, 1980 to 9th September, 1980 was deposited by the appellant on 9th October. 1980. On 1st November, 1980 the respondent moved an application before the trial court for striking out the defence for the reason that the appellant had failed to deposit the rent for the subsequent period within time prescribed under sub -section (4) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act' ). On the said application the Munsiff passed an order dated 30th May, 1981 whereby the defence of the appellant was struck out under sub -section (5) Section 13 of the Act. While the matter was pending before the trial court, the appellant sub mitted an affidavit dated 16th December, 1981 on 4th February, 1982 wherein he explained the circumstances in which default had been committed by him in depositing the rent for the period from 10th May, 1980 to 9th September, 1980. In the said affidavit the appellant stated that when he asked his counsel Shri Ramswaroop, for depositing the rent for the months of May to August, 1980, his counsel told him that it was not necessary to deposit the same at that stage and that the some could be deposited within six months and that this fact was also stated by the appellant during the course of deposition on 28th October, 1980, but after recording a part of the said deposition, the said portion was scored out by the Court on 4th February, 1982. When the said affidavit was filed by the appellant the case was fixed for arguments and the court fixed the matter for 5th February 1982 for consideration of the said affidavit and for argument in the case. The order - sheet indicates that on 5th February, 1982 the case was adjourned to 8th February, 1982 and the arguments were heard on 8th February, 1982 in the suit as well as on the affidavit. The suit was decided by the Munsiff by his judgment dated 9th February, 1982 whereby he accepted the case of the appellant that the rent for the premises was Rs. 15/ - per month. The Munsiff, however, held that since the defence of the appellant had been struck out on the question of default, issue no. 1 with regard to default should be decided in favour of the plaintiff respondent and in view of the said finding on issue No. 1 he passed a decree for eviction against the appellant. In the said judgment the Munsiff has made not any reference to the affidavit of the appellant dated 16th December, 1981. The appellant filed an appeal against the said judgment and decree of the Munsiff which was dismissed by the Addl. District Judge No. 2, Ajmer by his judgment and decree dated 4th January, 1988. The Addl. District Judge also has not made any reference to the affidavit dated 16th December, 1981 submitted by the appellant. Hence, this second appeal.
(2.) SHRI R. M. Lodha, the learned counsel for the appellant, has argued that the provisions contained in sub -section (5) of Section 13 of the Act with regard to striking out the defence are not mandatory in nature and that it is in the discretion of the court to strike out the defence or not to strike out the defence and that the said discretion has to be exercised after taking into consideration the facts and circumstances of each case and the explanation that is offered by the defendant for the default committed by him in payment of rent during pendency of the suit. In support of his aforesaid submission SHRI Lodha has placed reliance on the decision of the Full Bench of this Court in Vishandas Vs. Savitri Devi (1 ). SHRI Lodha has pointed out that in the present case the appellant had in his affidavit dated 16th December, 1981 offered the explanation for delayed payment of the rent for the period from 10th May, 1981 to 9th September, 1981 viz; that he was advised by his counsel, SHRI Ramswaroop, that the said payment could be made within six months and that in view of the said explanation the Munsiff was not justified in striking out the defence of the appellant. SHRI Lodha has also submitted that although the order -sheet shows that on 4th February, 1982 the Munsiff had directed that he will consider the affidavit at the time of final hearing and on 8th February, 1982 arguments were heard on the affidavit also but the judgment does not indicate that the Munsiff has considered the said affidavit. SHRI Lodha has also submitted that in appeal also the appellant had raised plea that his defence had wrongly been struck out, but the Addl. District Judge, while dealing with the_appeal, has not considered the explanation offered by the appellant in his affidavit dated 16th December, 1981. According to SHRI Lodha in view of the decision of the Full Bench of this Court in Vishandas Vs Savitri Devi (supra), the courts below have committed error in striking out the defence of the appellant. Shri R. S. Kejriwal, the learned counsel for the respondent, has, on the other hand, submitted that the appellant had filed an appeal against the order dated 30th May, 1981 whereby the defence of the appellant had been struck out and that the said appeal was dismissed by the Addl. District Judge, Ajmer by his judgment dated 1st September, 1981 and that in view of the said judgment of the appellate court upholding the order dated 30th May, 1981 it was not open to the trial court, to go into the question as to whether the defence of the appellant had been rightly struck out or not. Shri Kejriwal has also submitted that the appellant did not agitate the question with regard to non -consideration of the affidavit dated 16th December, 1981 before the Addl. District Judge in his appeal against the judgment and decree passed by the Munsiff. With regard to the decision of the Full Bench of this Court in Vishan Das Vs. Savitri Devi (supra), the submission of Shri Kejriwal is that the said decision does not lay down the correct law and in this connection Shri Kejriwal has placed reliance on the decision of the Supreme Court in Mranalini B. Shah Vs. Bapalal Mohanlal Shah (2) and Mrs. Manu Choudhary Vs. Dulal Kumar Chandra (3 ). In Vishandas Vs. Savitri Devi (supra), the Full Bench of this Court has considered the following three questions: - (1) Whether the provisions of Sec. 5 of the Limitation Act can be applied in the matter of deposition of rent u/s 13 (4) of the Act, 1960? (2) Whether the court has no power even in the interest of justice and equity, to extend time beyond the limit prescribed u/s 13 (4) of the Act? (3) Whether Sec. 13 (5) of the Act is directory? While dealing with question no. 1 this Court has held that the provisions of Section 5 of the Limitation Act can be applied in the matter of deposit of rent under section 13 (4) of the Act. As regards question No. 2, this Court has laid down that the court has power, in the interest of justice and equity, to extend time beyond the limit prescribed under section 13 (4) of the Act and while dealing with question no. 3 this Court has hled that Section 13 (5) is directory and not mandatory. This Court has taken note of the decisions of the Supreme Court in Shyam Charan Sharma vs. Dharam Das (4), Miss Santosh Mehta vs. Om Prakash (5), Ram Murti vs. Bholanath (6), Ganesh Prasad Shah Kesri vs. Laxmi Narain (7) and M/s B. P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick (8) and in the light of the aforesaid decisions this Court has laid down as under: - "the court is vested with the discretion to order either striking out of the defence or not, depending upon the circumstances of the case, in the. interest of justice, and further since the court has discretion to condone the default, therefore, it has also the power to extend time for payment or for depositing rent in the court. Rent Control Act is a beneficial legislation in favour of the tenants and tenant cannot be punished for not making payment of rent within time on account of some unforeseen -circumstances. Basically, the Rent Control Laws are designed to protect tenants because scarcity of accommodation is the sightmare for those who own none and if evicted, will be helpless. We must adopt a socially informed perspective while construing the provisions of the Rent Control Act. If one ascertains the intendment of the legislature, the purpose for which these provisions have been enacted, the beneficial nature of (he statute and to protect the harassed tenant, obviously it does not require long argument to hold that the expression 'shall' used in. Sec. 13 (4) and 13 (5) of the Rent Control Act was used not with a view to make the provision mandatory or imperative but it was to be directory. Such a construction would advance the purpose for which the Act was enacted, namely, the protection of tenants. It will also not render the Court powerless to extend the time if the tenant is able to satisfy the court that he was prevented in not depositing or paying the rent within time for sufficient cause and thereafter, the court is justified in not striking out the defence, otherwise it would be nothing sort of miscarriage of justice. The court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted. " The afore said observations of this Court in Vishandas Vs. Savitri Devi (supra) indicate that it is not obligatory for the court to strike out the defence in the event of default being committed by the tenant in depositing the rent under sub -section (4) of Section 13 of the Act during pendency of the suit and that the court has the discretion to condone the delay and to extend time for depositing the rent and that if the tenant is able to satisfy the court that he was prevented from depositing the rent in time for sufficient cause, the court would be justified in not striking out the defence. I am unable to accept the contention of Shri Kejriwal that the said decision of this Court needs re -consideration. In M/s B. P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick (supra) the Supreme Court while dealing with the provisions of the West Bengal Premises Tenancy Act, 1956, has observed, - "this Court has consistently taken the view that if the Court has the discretion not to strike out the defence of the tenant committing default in payment or deposit of rent as required by a provision in any Rent Restriction Act, then the Court surely has the further discretion to condone the default and extend the time for payment or deposit and such a discretion is a necessary application of the discretion not to strike out the defence. " In that case the tenant had committed default in payment of the rent for the months of September, 1968 and March, 1969 during pendency of the suit in as much as there was delay in making the said payments. The defence of the tenant had been struck out by the trial court by order dated 14th March, 1970 and thereafter on 13th June, 1970 the tenant had moved an application under section 148 CPC for extension of time for depositing the amounts for the months of September, 1968 and March, 1969 so as to cover the delays that had occurred in payment of the rent for those two months. The said application was dismissed by the trial court and the said decision of the trial court was upheld by the appellate court and the High Court. The Supreme Court reversed the said decision on the view that the default was not one of non -payment of the arrears of the rent for the subsequent period and that the default pertained to belated payments of rent for two months and was, therefore, a default in the technical sense than in the real sense and hence of an inconsequential nature. The Supreme Court further observed that having regard to the intendment of the Act and the naturs of the provisions it can never be said that the defaults were of such a nature as to warrant the court refusing to exercise its discretion and to feel constrained to strike out the defence. In that view of the matter the Supreme Court held that subordinate courts and the High Court were in error in holding that the delayed payment of rent for the months of September, 1968 and March, 1969 constitute such defaults as necessarily warranted the striking out of the defence. In my view the aforesaid observations are fully applicable to the facts of the present case. In Mranalini B. Shah Vs. Bapalal Mohanlal Shah (supra) the question which came up for consideration before the Supreme Court was whether the tenant had regularly paid the rent for the premises during the pendency of the suit. In that case the Supreme Court held that the word 'regularly' enjoins a payment or tender characterised by reasonable punctuality, that is to say, one made at regular times or intervals although regularity contemplated may not be a punctuality of clocklike precision and exactitude. The Supreme Court further observed that if the tenant persistently defaults during the pendency of the suit or appeal in paying the rent, the court has no discretion to treat what were manifestly irregular payment as substantial compliance with the mandate of the lew. In that case it was found that the tenant had deposited rent in court 16 times at intervals ranging from 2 to 4 months and on those facts the court held that the tenant had failed to pay rent regularly. In my view the facts of that case are entirely different and the said decision, therefore, cannot be made applicable to the present case.
(3.) IN Mrs. Manju Choudhary Vs. Dulal Kumar Chandra (supra), it was found that the rent for the month of July, 1979 which was to be deposited by 15th August, 1979 was deposited not earlier than 20th August, 1979 and the explanation which was offered by the tenant for this belated payment, namely, that there was a bank strike, was found to be not correct. IN those circumstances the Supreme Court upheld the orders of the High Court striking out the defence of the tenant and while doing so the Supreme Court also observed that the conduct of the tenant who had made default even in complying with the orders of the court. The said decision was given in the facts of that particular case where the explanation that was offered by the tenant, was not accepted by the Court. The said decision has, therefore, no application to the present case. Coming to the facts of the present case it may be stated that the appellant has offered so explanation for the belated payment in his affidavit dated 16th December, 1981 submitted in the trial Court. The said explanation has not been considered by the trial court as well as by the first appellate court. In my view this is a fit case in which the trial court should consider the matter with regard to striking out the defence of the appellant in the light of the explanation that has been offered by the appellant in his affidavit dated 16th December, 1981 keeping in view the principles laid down by this Court in Vishan Das vs. Savtiri Devi (supra) and the Supreme Court in B. P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick (supra ). It is made clear that the decision of the Addl. District Judge dated 1st Sept. 1981 dismissing the appeal of the appellant against the order dated 30th May, 1981 would not stand in the way of the trial court while considering this matter. In the result the appeal is allowed and the judgment and decree dated 4th January, 1988 passed by the Addl. District Judge No. 2, Ajmer in civil suit No. 289/1986 (41/1982) and the judgment and decree dated 9th February, 1982 passed by the Munsiff& Judicial Magistrate Ajmer City (West), Ajmer in civil suit No. 334/1979 are set aside and the matter is remanded to the Munsiff& Judicial Magistrate, Ajmer City (West), Ajmer for reconsideration in the light of the observations contained in this judgment. The parties are directed to appear before the Munsiff and Judicial Magistrate, Ajmer (West), Ajmer on 30th March, 1989. No order as to costs. . ;