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1978 DIGILAW 641 (MP)

Kusumbai v. Rajvaidya Bhagvantin

1978-08-31

B.R.DUBE

body1978
Short Note : 1. In the special pleadings of their written statement in paragraph No. 12 the applicants have averred that the applicant's near relation Sureshchandra Agrawal was a partner in Eastern Engineering Agency and he had thick relations with plaintiff-non-applicant No.1. It was also averred that Sureshchandra used to recover rent from the tenants of non-applicant No.1. The non-applicant No.1 had strained relation with his tenants and apprehending danger to his personal safety, he requested Sureshchandra to recover the rent from the tenants on his behalf and to look after his safety and for that act the non-applicant No.1 had agreed to pay remuneration of Rs. 200 per month to Sureshchandra. It also agreed that the remuneration payable Suresh Chandra would be adjusted towards the rent payable by the applicants and after adjusting the accounts, any rent which might remain due against the applicant shall be paid by them. 2. The trial Court, after considering the aforesaid plea of the applicants in its earlier order dated 6-5-1976 had observed that the alleged adjustment had no nexus with the obligation of the applicants to pay the arrears of rent under the agreement of tenancy. The trial Court also took into consideration the fact that Sureshchandra Agrawal, who was allegedly engaged by the non-applicant No. 1 to recover the rent and to act as his body guard, was not a party in the suit. In the written statement it is not stated that Sureshchandra Agrawal had agreed that the amount of remuneration payable to him by non-applicant No. 1 shall be adjusted towards the arrears of rent due against the applicants. It is also not stated in the written statement as to for how-many months Sureshchandra had worked for non-applicant No. 1 and when the accounts were settled. There is a vague allegation that on settling the accounts nothing was found to be due against the applicants towards arrears of rent. The trial Court, therefore, was of the view that in fact the plea taken by the applicant in the written statement did not raise any dispute with respect to the payment of rent due against the applicants. 3. Held : As pointed out earlier the plea of the applicants with respect to the alleged adjustment is too vague to raise any dispute under section 13 (2) of the Act. 3. Held : As pointed out earlier the plea of the applicants with respect to the alleged adjustment is too vague to raise any dispute under section 13 (2) of the Act. In Ganeshram Harvilas (Firm) v. Ramchandra Rao, 1970 JLJ 782 , it was held that if the tenant does not raise specific dispute and pray for fixation of provisional rent and the Court also omits to fix a provisional rent, the tenant, cannot, at the conclusion of the trial, claim protection of section 12 (3) of the Act on the ground that if provisional rent had been fixed, he would have complied with the provisions of section 13 (1). 4. The trial Court, in the instant case, after examining the plea raised by the applicants with respect to the alleged payment, has found it to be not tenable. Thus, virtually while rejecting the plea of the applicants the trial Court came to the conclusion that the applicants were liable to deposit the rent or pay the rent as claimed by the non-applicant No.1. Inspite of the said direction when the applicants failed to deposit or pay the rent as required by section 13 (1) of the Act, the trial Court acted within its jurisdiction to strike out the defence. The trial Court, therefore, did not commit any jurisdictional error. As the impugned order is discretionary, it cannot be interfered with by this Court in revision. 1975 JLJ 779 (FB) referred to, 1970 JLJ 282, relied on. Revision dismissed.