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1998 DIGILAW 394 (RAJ)

Amrit Lal Jain v. Mohammad Husssain

1998-03-20

P.C.JAIN

body1998
JUDGMENT : 1. This revision petition is directed against the order dated 7.1.1998 passed by the learned Civil Judge (Junior Division), Doongarpur whereby the learned trial Court has allowed the application filed by the plaintiff-respondent under Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for shot 'the Act') and ordered striking out the deference of the defendant-petitioner against eviction. 2. I have heard Mr. Shambhu Singh Rathore, the learned Counsel appearing for the defendant-petitioner and have very carefully gone through the record of the case. 3. It is not in dispute that the plaintiff non-petitioner filed a suit for eviction and arrears of rent against the defendant-petitioner. The suit was resisted by the defendant-petitioner. The suit was also based on defaults in payment of rent. The learned trial Court determined the rent under Section 13(3) of the Act on 8.5.1996 at Rs. 3685.50. There is no dispute that the defendant-petitioner paid/deposited the above amount and it was received by the plaintiff-respondent. However, after determination of the rent, the defendant-petitioner neither deposited in the Court nor paid to the landlord the future rent month by month subsequent to the period up to which determination was made. 4. The plaintiff-respondents, therefore, moved an application under Section 13(5) of the Act for striking out the defence of the defendant-petitioner against eviction. That application was resisted by the defendant-petitioner and it was pleaded by him that since he had filed an appeal and the plaintiff-respondent was negotiating the matter to effect the compromise, he did not obtain receipt of the payment of rent. However, no compromise was arrived at. When he brought the matter to the notice of his counsel, he was told that by not obtaining receipt he will be deemed to have committed defaults in payment of rent. The petitioner, therefore, remitted a sum of Rs. 4,440/- by Money Order on 1.4.1997 but it was refused by the plaintiff- respondent. The defendant-petitioner, therefore, deposited the above amount of Court on 8.4.1997 and extra interest of Rs. 250/- was also deposited on 16.5.1997. The petitioner, therefore, pleaded that there was a bonafide mistake on the part of the petitioner in not obtaining receipt of payment of rent from the plaintiff-respondent. Since the petitioner remitted the above amount of rent by Money Order but it was refused by the plaintiff-respondent and so, the defendant-petitioner deposited the same in Court. The petitioner, therefore, pleaded that there was a bonafide mistake on the part of the petitioner in not obtaining receipt of payment of rent from the plaintiff-respondent. Since the petitioner remitted the above amount of rent by Money Order but it was refused by the plaintiff-respondent and so, the defendant-petitioner deposited the same in Court. Therefore, the defendant-petitioner has not committed any default and if any default is held to have been committed by the defendant-petitioner, the same may be condoned in the facts and circumstances of the case. In support of his contention, the learned counsel appearing for the appellant has placed reliance of Vishan Dass v. Savitri Devi, 1988 (1) RLR 1; Govind Ram v. Smt. Raji Bai, 1977 LW 368 and Murlidhar v. Mukand Ram, 1993 (2) RLR 549. 5. According to sub-section (5) of Section 13 of the Act if a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein, the Court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. It is relevant to mention here that now the legal position has been settled by this Court in Vishan Dass v. Savitri, 1988 (1) RLR 1 that the provisions contained in Section 13(5) of the Act are directory in nature and not mandatory. It has been held by this Court that the provisions contained in sub-section (5) of Section 13 of the Act can be applied in matters of depositing the rent under Section 13(4) of the Act. When we examine the facts of the instant case, it is clear that after depositing the rent as determined by the Court on 8.5.1996, the tenant has committed various defaults in payment of monthly rent subsequent to the above period of determination. The explanation furnished by the defendant-petitioner is that he paid the rent to the plaintiff-respondent but he did not issue receipts thereof. Along with this explanation, he has also submitted that since negotiation for compromise were going on, he did not press the plaintiff-respondent to pass the receipts. The above explanation is not worthy of belief. When the rent has been determined and it was a suit for eviction, the defendant-petitioner must have appreciated the gravity of the consequences flowing from failure to deposit the future rent month by month. The above explanation is not worthy of belief. When the rent has been determined and it was a suit for eviction, the defendant-petitioner must have appreciated the gravity of the consequences flowing from failure to deposit the future rent month by month. A tenant can never think to pay the rent to the landlord after the institution of a suit without any receipt. Hence, I am not convinced with the explanation furnished by the defendant-petitioner in making delayed payment of monthly rent to the plaintiff-respondent. 6. Of course, the Court has power to condone the delay but the Courts are expected to act judiciously and the order so passed by the Court condoning the delay caused in late payment of rent to the landlord month by month must contain the corresponding rights of the landlord as well. If the tenant can convince the Court about the genuineness for not depositing the rent or paying the rent to the landlord, the Court can of course condone the delay after affording an opportunity of hearing to the landlord. In the instant case, the hollowness of the cause shown by the defendant-petitioner is apparent on the face of the record. 7. It may be stated here that the petitioner is alleged to have remitted the amount of Rs. 4,440/- by Money Order on 1.4.1997 but it was refused by the plaintiff-respondent. Thereafter, the defendant-petitioner deposited the said amount in Court on 8.4.1997. He has not produced the Money Order Receipts containing endorsement of the Post Office. He is alleged to have sent the amount of Money Order when it fell into huge arrears. In other words, the defendant-petitioner committed several defaults in a row. In these circumstances, the fact that the defendant-petitioner remitted the amount of arrears of rent or deposited the same in Court would not benefit him at all. In this view of the matter, I am of the view that the learned trial Court has not committed any jurisdictional error in passing the impugned order. 8. I, therefore, find that there is no substance in this revision petition and the same is hereby dismissed.Petition dismissed.