Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1523 (RAJ)

Jaswant Kumar v. Jodhraj Soliwal

2001-09-20

JAGAT SINGH

body2001
JUDGMENT 1. Heard learned counsel for the parties. 2. This revision petition has been filed by defendant-tenants under section 115, CPC against the order dated 23.12.1999 passed by Addl. District Judge, No. 3, Kota by which order dated 31.3.1994 passed by Munsif (North), Kota was set aside and defence of the defendants against eviction was struck out under sub-section (5) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950. 3. The eviction suit was filed on the ground of default in making payment of rent, coupled with some other grounds, whereupon provision rent was determined by the court below on 20.5.1988. On that day, 27 months' rent from the period 1st February, 1986 to 30th April, 1988 was determined and defendant was directed to make payment. In compliance of the above order, defendant deposited rent for the period 1.2.1986 to 30.4.1988 on 16.8.1988. On that day, rent for the month of July, 1988 was also deposited. However, rent for the months of May & June, 1988 could not be deposited by the defendant. Some was deposited on 12.8.1988. Application for order striking out defence under section 13(5) of the Act was filed on 08th March, 1990, on the plea that rent for the months of May & June, 1988 was not deposited within 15 days of the succeeding month and therefore, defence must be striked out. 4. Learned trial court, after hearing both the parties, turned down request of the plaintiff. However, learned appellate court was pleased to accept the appeal and defence of the defendant was struck out under section 13(5) of the Act of 1950, hence, this revision petition. 5. Learned counsel for tenants submitted that Jaswant Kumar was tenant and was suffering from cyrosis of ever and had even passed away on 4th October, 1988. In connection with the above disease, he had to go for treatment out of Kota, to Jaipur and some other sundry places. Therefore, rent of May & June, 1988 could not be deposited within 15 days of the, succeeding month. Looking to above facts and circumstances, the trial court has turned down request of the plaintiff and has no striked out the defence but the appellate court has not considered the matter in right perspective and accepted the appeal. On the contrary, learned counsel for respondent-plaintiff has supported the impugned order. 6. Looking to above facts and circumstances, the trial court has turned down request of the plaintiff and has no striked out the defence but the appellate court has not considered the matter in right perspective and accepted the appeal. On the contrary, learned counsel for respondent-plaintiff has supported the impugned order. 6. I have carefully considered the rival contentions. A Larger Bench of this Hon'ble Court in Bishan Dass v. Sawitri Devi, 1988 RLR 01 , has held that provisions of sub-section (5) of section 13 of the Act of 1950 are directive and not mandatory and in particular factual circumstances, court has discretion not to strike out the defence. In Chetan Das v. Anusuya, 1996(1) WLC 245 , the rent could not, be deposited in time and an application to strike out the defence was filed after depositing of the delayed rent and in such circumstances, this Court was of the view that when delayed payment of rent has been made prior to filing of the application under section 13(5) of the Act, defence can not be striked out. Similarly, in Prahalad Kumar v. Babu Lal, 1990(2) RLR 649 and further in M/s. Chandra Sen Jayanti Prasad v. LRs of Padma Kapoor, 1999(2) WLC 381 ; there was delay in making payment of rent for one month, which was not found sufficient to strike out the defence and this Court held that intention of the tenant was not to wilfully defer the payment. 7. In the matter at hand, the order determining provisional rent has been passed on 20.5.1988 and after extension of time, arrears of rent along with interest was deposited on 16.8.1988. Rent for the months of May & June, 1988 could not be deposited within 15 days of succeeding month. However, same was deposited on 12.8.1988. The application to strike out defence was filed as late as on 8th March, 1990. In such a situation, it cannot be said that the defendants made wilful default in paying the rent for the months of May & June, 1988. He being seriously ill, may have gone out of Kota and may not have arranged to deposit the rent well in time. When upon order determining provisional rent deposited the amount of arrears of rent was made on 20th May, 1988, it is just possible that rent for May, 1988 may not have been deposited for some misunderstanding. He being seriously ill, may have gone out of Kota and may not have arranged to deposit the rent well in time. When upon order determining provisional rent deposited the amount of arrears of rent was made on 20th May, 1988, it is just possible that rent for May, 1988 may not have been deposited for some misunderstanding. However, the rent in arrear was only for two months, which too was deposited prior to depositing earlier arrear after determination of provisional rent. 8. Keeping in view above factual and legal aspects in mind, the trial court has rightly dismissed application of the plaintiff. The appellate court though dealt with the matter in quite detail, however, has not appreciated the legal aspects in correct perspective, causing miscarriage of justice and therefore, I accept this revision petition and set aside impugned order, restoring order passed by the trial court. The trial court is further directed to expedite the proceedings.Revision allowed. *******