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1990 DIGILAW 522 (RAJ)

Gordhan Dass v. Smt. Ram Janki

1990-09-05

K.C.AGRAWAL

body1990
JUDGMENT 1. - This is a tenant's revision preferred against the judgment and order passed by the Munsif Ajmer City (West) Ajmer, rejecting his application dated 15-4-1989 for recalling the order dated 15-10-1985 whereby the defence of the Defendant-Petitioner was struck off. 2. The plaintiff-respondent filed a suit for eviction against the petitioner on the ground of default wherein provisional determination-of rent was made on 19-3-1984. The defendant-petitioner did not deposit the rent within the stipulated time prescribed by Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as 'the Act'). Thereupon, the plaintiff respondent moved an application Under Section 13(5) of the Act. The rent was not deposited and consequently, defence was struck off on 15-10-1985. The order striking out the defence became final. 3. On 15-4-1989, the defendant-petitioner moved an application for recalling the order aforesaid by which the defence had been struck off. The petitioner asserted in the application that the amount to be deposited by way of rent had been given by him to his servant, namely, Jai Kishan. The Petitioner went out of station and came back only after six months. It was thereupon that he learn from the Advocate, who was appearing for him in the suit, about the non-deposit of rent, which resulted in striking off his defence by order dated 15-10-1985. He made an effort for getting the said order set aside by filing an appeal, but failed. The present application, as stated earlier, was filed on 15-4-1989 by asserting that the petitioner was not guilty having paid the rent to his servant who subsequently left his service. The petitioner claimed that for the negligence of his servant, he could not be penalised and he was entitled to condonation of delay in depositing the rent. 4. The Court below rejected the application upholding the plea taken in the objection dated 7-7-1989 by the respondent. In this objection, the respondent has alleged that the ground for recalling the order was false, manufactured and afterthought. The court below held that there was no evidence on record that Jai Kishan was the servant of the petitioner and that he was not entitled to get the order dated 15-10-85 recalled. 5. In this objection, the respondent has alleged that the ground for recalling the order was false, manufactured and afterthought. The court below held that there was no evidence on record that Jai Kishan was the servant of the petitioner and that he was not entitled to get the order dated 15-10-85 recalled. 5. Sri Maloo, learned Counsel for the petitioner tried to explain the delay in moving the application after four years by asserting that the interpretation of this Court of Sub-section (4) of Section 13 of the Act was that it was mandatory and that the Court had no power to extend the period for depositing the rent provided for by the same. In Vishandas v. Savitri Devi [(1) 1988 (1) RLR-1] , it was held that Sub-section (4) of Section 13 of the Act is directory and that the court could extend the period of depositing rent Under Sub-section (4) of Section 13 by applying Section 5 of the Limitation Act. In support of his submission, the learned Counsel relied upon an unreported decision in Mahendra Kumar v. Shri Nathi Lal decided on 24th January 1989 (S.B. Civil Appeal No. 17 of 1988) . 6. In the aforesaid unreported decision, the facts were different than what require adjudication in the instant case. In that decision, the application was moved by the plaintiff for striking out the defence for the reasons that the defendant had failed to deposit the rent for the subsequent period within time prescribed Under Sub-section (4) of Section 13 of the Act. The liability to deposit the rent is continuous one as provided for by Section 13 (4) of the Act. The defendant deposited the rent upto 9th May 1980 within prescribed period but for the period thereafter, i.e. 10th May 1980 to 9th Sept. 1980, he made the deposit on 9th Oct. 1980. On 1st Nov. 1980, the plaintiff of that suit moved an application for striking out the defence for the reasons that the defendant had failed to deposit the rent for the subsequent period within time prescribed Under Section 13(4) of the Act. This application was contested by the defendant. He filed an affidavit wherein he explained the circumstance in which default had been committed in depositing the rent for the period from 10th May 1980 to 9th Sept. 1980. Without considering this affidavit, the trial court struck out the defence. This application was contested by the defendant. He filed an affidavit wherein he explained the circumstance in which default had been committed in depositing the rent for the period from 10th May 1980 to 9th Sept. 1980. Without considering this affidavit, the trial court struck out the defence. Thereafter, when the matter came up to this court in second appeal, the learned Judge held that the trial court should have dealt with explanation offered by the defendant for not depositing the rent within time and given a finding thereon and as the explanation had not been considered either by the trial court or by the first appellate court, the High Court remanded the case for reconsideration of the application to the trial court by setting aside the judgment given against the defendant for eviction on the ground of default. 7. The court below in this case rejected the application filed by the petitioner Under Section 5 of the Limitation Act by holding that the grounds taken for condonation were concocted and false. This finding is a finding of fact based on appreciation of evidence and appraisal of the circumstances emerging out from the record. A finding of fact is binding on a court deciding a revision Under Section 115 of the Code of Civil Procedure . The limits of civil jurisdiction exercised by the High Court Under Section 115 CPC is called revisional jurisdiction. The powers of the High Court under this section can only be invoked in cases in which no appeal lies to the High Court provided that the case has been decided by any court subordinate to such High Court and such subordinate court appears (i) to have exercised a jurisdiction not vested in it by law, or (ii) to have failed to exercise a jurisdiction vested in it by law, or (iii) to have acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court has no power to interfere in revision Under Section 115 CPC except in three cases, mentioned above. This Section is not directed against erroneous conclusions (of law or fact) not involving jurisdiction. The court below, as said above, has found on appraisal of evidence that the ground given for recall of the order striking out the defence in the year 1985 was afterthought. This Section is not directed against erroneous conclusions (of law or fact) not involving jurisdiction. The court below, as said above, has found on appraisal of evidence that the ground given for recall of the order striking out the defence in the year 1985 was afterthought. Learned Counsel for the petitioner attempted to by-pass this finding by submitting that the judgment was confined only to the question that no review or recall application lay. That is not so. The Court has also found as a fact that application of the petitioner for recall of the order was based on erroneous facts, for proof of which, there was no evidence. 8. So far as the judgment relied upon-by the petitioner is concerned, it may be mentioned that a decision is an authority for the proposition what it decides. In the said case, facts were altogether different and in the set of those facts if the law laid down therein is considered, it would be found that there is wide difference in between the present case and that decision. What constitutes the precedent is ratio-decidendi. The said decision does not decide the controversy raised before me in this case. Consequently it is of no relevance. Why was the application moved after four years, is a strong circumstance correctly taken into account by the learned Civil Judge for holding that it was based on wrong facts. No evidence has been brought by the petitioner to the court for proving that Jai Kishan was servant working with the petitioner. 9. For what has been discussed above, I find no force in this revision and the same is dismissed with costs.Revision dismissed. *******