JUDGMENT 1. - Both these revision petitions involve dispute in relation to striking out of the defence of the tenant M/s. Laxmi Tara Calenders, who is the tenant in one revision petition of Smt. Shanti Devi Borana and in another revision petition of Paru Lal. Both these revision petitions have identical facts and, therefore, they are decided by this common order. 2. The tenant M/s. Laxmi Tara Calenders was proceeded against by its aforesaid landlords for seeking a decree of ejectment against it. While the suit was pending the rent was determined on 13.12.1989, the rent was paid on the date of determination itself and subsequently the rent continued to be paid regularly. However, the rent for the months of January, February and March, 1993 was deposited on 26.4.1993. Therefore, there was more than two months delay in the deposit of the rent for the month of January, 1993, more than one month's delay in the deposit of rent for the month of February, 1993 and more than 11 days delay in the deposit of rent for the month of March, 1993. 3. Learned counsel for the petitioner has urged that it is not a case of wilful or contumacious conduct in delaying the payment of rent on the part of the petitioner. The delay is only technical. Before the application for striking out of the defence of the defendant tenant was filed on 28.7.1993, the rent had already been deposited i.e. on 26.4.1993. 4. Learned counsel for the petitioner has placed reliance on a decision of the Hon'ble Supreme Court in M/s. B.P Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and another AIR 1987 SC 1010 wherein it has been held as under: "In this case.the default was not one of non-payment of the arrears or the rent for the subsequent period. 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." 5. Learned counsel for the petitioner has urged that following this Supreme Court decision this Court in M/s. Sunmoon Stationers v. Banshi Lal 1993(1) WLNB 231 has also held that Section 13(5) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 is not mandatory and is only directory and has further held that delay in depositing the rent can always be condoned. 6. 6. In Bhagwan Das v. Moorti Mandir Ganeshji Dhanroopji 1991(1) RLR 619 , this Court has held that it is only when the court comes to the conclusion that default in complying with order passed by it under Section 13(3) was wilful and contumacious that the court can strike out the defence. 7. Learned counsel for the petitioner has further argued that the word 'contumacious' has a definite connotation contained different law dictionaries. The petitioner can at best be said to be negligent in not depositing the rent in time for the months of January, February, March, 1993 but by no stretch of imagination it can be said to be a contumacious conduct. The term 'contumacious' has been defined in various law dictories as below : Black's Law Dictionary: Contumacious conduct: "Wilfully stubborn and disobedient conduct commonly punishable as contempt of Court." Oxford : Contumacious:, "Obstinately disobedient to authority stubbornly perverse, wilfully disobedient to the summons or orders of a court." Webster: "perverse in resisting authority, stubbornly disobedient, rebellious irreconcilable." 8. Therefore, the learned counsel urges that nothing can be seen in the conduct of the petitioner that he has committed a contumacious act in late depositing the rent for the months of January, February, and March, 1993. 9. Learned counsel for the respondent has joined the issue and has urged that earlier when the defence of the petitioner was struke off the matter was remanded back with the direction to consider the question of condonation of delay and thereafter the petitioner has filed an application under Section 5 of the Limitation Act otherwise he was indifferent and has not filed any application for condonation of delay in payment of rent. In his application under Section 5 of the Limitation Act he had given a very vague ground for seeking condonation of delay alleging that he had fallen ill. The illness was unspecific. The Doctor giving the certificate was not examined and it was not proved from the certificate produced by the petitioner that it was issued by alleged Dr. Nepaliya. The Doctor was not produced in evidence and, therefore, the respondent could not cross-examine the doctor to elucidate the correctness of the allegations of the petitioner. The illness was unspecific. The Doctor giving the certificate was not examined and it was not proved from the certificate produced by the petitioner that it was issued by alleged Dr. Nepaliya. The Doctor was not produced in evidence and, therefore, the respondent could not cross-examine the doctor to elucidate the correctness of the allegations of the petitioner. Further more, it has been urged by the learned counsel that the defendant is a firm who has other partners and therefore they were required under law to deposit the rent in time and their negligence and carelessness is unexplainable. 10. He has placed reliance on a decision of this Court in Jai Narain v. Staya Narain 1995(3) WLC (Raj.) 254 , wherein this Court has held that delay in depositing rent by the tenant does not deserve sympathy and the condonation granted by the appellate Court was without applying its mind on the material on record. The background in which the aforesaid decision was passed was that the tenant was held to be a habitual defaulter. He had not been depositing monthly rent as and when it became due. He had deposited monthly rent with a gap of 2 months, 3 months and even six months. That was a case of multiple defaults and therefore, this case has no application in the present controversy as a contumacious conduct can be inferred from prolong multiple defaults. 11. Another case relied upon by the learned counsel for the respondent is Pukhraj v. Maheshwari Samaj 1996(2) RLW Raj. 704 wherein this Court has held that if a tenant fails for a long period to deposit the rent, then he fails in carrying out the obligations contained in Section 13(4) of the Act, his conduct can definitely be said to be wilful and contumacious. The period involved in that case was from 1.4.1981 to 24.8.1992 for a period of 11 years. The delay of 11 years is such a long delay that this Court did not condone the delay and rightly so. In the instant case this case has no application as no such delay is involved. 12. Another case relied upon by the learned counsel for the respondent is Hari Ram v. Suresh Chand & Ors. 1994(3) WLC (Raj.) 598 . In the instant case this case has no application as no such delay is involved. 12. Another case relied upon by the learned counsel for the respondent is Hari Ram v. Suresh Chand & Ors. 1994(3) WLC (Raj.) 598 . In this case while deciding the application under Order 22 Rule 4(5) C PC, an application under Section 5 of the Limitation Act was moved and that application was rejected because there were no proper particulars given and the delay was not properly explained in the application under Section 5 of the Limitation Act. 13. Another case relied upon by the learned counsel for the respondent is Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and others AIR 1964 SC 1336 wherein the Hon'ble Supreme Court has held that revisional jurisdiction under Section 115 C.RC. should not be invoked to set-aside the finding of fact recorded by the trial court. In that case abatement was set-aside. 14. These two cases will have no relevance in the present controversy. It is not a case where only the application under Section 5 of the Limitation Act alone was to be considered. The nature of law governing the stricking out of defence was also important. The Apex Court has held that such proof is not mandatory. 15. If the law cited by both the parties is considered in the facts and circumstances of the case, and the facts of the case are scanned, then it is revealed that the tenant has belatedly deposited the rent for the months of January, February and March, 1993. Apart from this late deposit, they have been paying rent regularly. If the conduct of the petitioner is considered then by no stretch of imagination their conduct can be said to be contumacious because this delay cannot be said to contumacious. At best their conduct can be a conduct of forgetfulness. No finding regarding contumacious conduct has been recorded by the trial court against the petitioner. The appellate court had however said that Surendra Singh have not deposited the rent. It could have been done by any other worker working at the shop. In not doing so the conduct of the petitioner has been contumacious. 16. I am afraid that the appellate court has recorded a finding of contumacious conduct without there being enough support for holding the conduct being contumacious. It could have been done by any other worker working at the shop. In not doing so the conduct of the petitioner has been contumacious. 16. I am afraid that the appellate court has recorded a finding of contumacious conduct without there being enough support for holding the conduct being contumacious. May be that the petitioner was negligent but he cannot by any stretch of imagination can be said to be wilful stubborn or obstinately disobedient or perverse in resisting authority. He has deposited the amount before any application for striking out of the defence was made. He did it without being reminded. Only once if default is committed then such a default on its correction in reasonable time then bonafides can be seen in the conduct of the tenant. In this back-ground, it was not necessary to record a finding of a wilful defaulter against the petitioner. Since the provisions of Section 13(5) have been held to be directory no orders for striking out the defence were necessary. 17. In this view of the matter, the conduct of the petitioner cannot be held to be that of the character of wilful, contumacious. It was not one of non-payment of arrears. The default pertains to belated payment of three months rent. Therefore, it was a default in technical sense and in view of the ratio laid down by the Hon'ble Supreme Court in M/s. B.P Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick and another (supra). 18. Following the judgment of the Supreme Court in the case of M/s. B.P Khemka Pvt. Ltd. (supra) a five Judges Bench of this Court has held in Sita Ram Agarwal v. Nasiruddin & others S.B. Civil Revision Petition No. 570 of 1994, decided on 17.12.1997 as under- "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 State 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 implication of the discretion not to strike out the defence." 19. In the same Five Judges Bench judgment it has been further observed as under- "There is no presumption that delay is occasion deliberately, or on account of culpable negligence, or on account of mala fides. In the same Five Judges Bench judgment it has been further observed as under- "There is no presumption that delay is occasion deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by restorting to delay. In fact he runs a serious risk." 20. In this back-ground when in the case in hand the default was only of technical nature, then it was not mandatory for the Court to strike out the defence. Court had the jurisdiction to refuse to act at the instance of the landlord. For the default like the one committed in the case in hand, such jurisdiction was required to be exercised. Both the courts below in not condoning the delay has acted against the spirit of M/s. B.P Khemka's case (supra). 21. Consequently, the delay in depositing the rent is condoned, the orders of striking out of defence are set-aside, the revision petitions are allowed. There will be no orders as to costs.Revision Allowed-Order Striking Out Defence Set-Aside. *******