JUDGMENT 1. - This revision petition has been directed against the order dated 01.08.2000 passed by the Additional District Judge No. 1, Jaipur City, Jaipur. The petitioner was defendant in the suit, filed by the respondent plaintiff for eviction for non- payment of arrears of rent. The premises in question is a shop. For the purpose of eviction, a ground of material alteration was also pleaded. The suit was contested by the present petitioner. The present petitioner had pleaded that as a matter of fact the shop had been let out to his father in the year 1959 for the rent of Rs. 25/- p.m. which was raised to Rs. 27/-. It was further pleaded that the plaintiff had earlier also instituted one suit on the ground of default and personal necessity and sub-letting which had culminated into the compromise on 10.09.1976 and ultimately rent was agreed to be as Rs. 105//- p.m. wu.e.f. 01.08.1976 etc. The contention of the present petitioner was that he had not committed any default at all. 2. As required under the Act, the rent was determined by the trial Court for the period of 16 months w.e.f. 01.07.1978 to 30.10.1979 to the tune of Rs. 1743/- @ Rs. 105/- p.m. along with interest and to pay monthly rent in future also. 3. The plaintiff had moved an application a/s. 13(5) of the Rent Act with the averment that the defendant had not complied with the provisions of Section 13(4) of the Act and had defaulted in paying the rent so determined under section 13(3) of the Act from month to month and defence of the petitioner be struck off under the provisions of Section 13(5) of the Act which application was contested by the petitioner. Learned trial Court vide its order dated 15.10.1993 had allowed the application moved by the plaintiff and had struck off the defence of the present petitioner. Feeling aggrieved against the said order, an appeal was filed before the first appellate Court which appeal vide order dated 27.02.1996 had been rejected. Feeling aggrieved against the order dated 27.02.1996, a revision petition was tiled in this Court being S.B. Civil Revision Petition No. 762/96 which was dismissed on 30.07.1997. Feeling aggrieved against the said order, an appeal was filed before the first appellate Court which appeal vide order dated 27.02.1996 had been rejected. Feeling aggrieved against the order dated 27.02.1996, a revision petition was tiled in this Court being S.B. Civil Revision Petition No. 762/96 which was dismissed on 30.07.1997. The petitioner was still aggrieved and, therefore, filed a review application for reviewing the order passed in Civil Revision Petition No. 762/96 which also stood dismissed and ultimately the petitioner approached the Hon'ble Supreme Court in SLP and the Hon'ble Supreme Court had passed an order on 03.01.2000 which SLP was allowed and the impugned orders were set aside and the case was remanded to the trial Court to decide the case afresh in the light of the order passed by the Hon'ble Supreme Court. The Hon'ble Supreme Court had passed the following order:ORDERSpecial leave granted. The respondents had filed an application for eviction of the appellant inter alia on the ground of non-payment of rent. It appears that an order was passed by the trial Court requiring the rent to be deposited in Court. The case of the appellant is that the rent was deposited in Court upto 31.12.1982 and thereafter the rent was being paid directly to the counsel for the landlord respondent." 'The respondents filed an application before the trial Court to the effect that for the period 1.7.1981 to 31.12.1981, no rent had been paid. This application was filed sometime in the year 1986. The trial Court, on the inability of the appellant to produce the challans in respect of the said period, ordered the striking off of the defence of the appellant. In appeal, the lower appellate Court came to the conclusion that the appellant had not been able to show the deposit of rent for the period 01.07.1981 to 31.12.1981. Further revision petition filed before the High Court set with no success.' `Our attention has been drawn to a letter (at page 53) of the paper books) to the Additional Civil Judge, Junior Division), in which it is stated that in connection with the case No. 26 of 1978, with which we are concerned in the present case, certain deposits had been made. It is quite obvious that this report which was made on an application dated 19.09.1997 was not available before the trial Court at the time when it ordered the striking off of the defence of the appellant. We feel that it will be in the interest of justice that this question is gone into afresh by the trial Court which should determine whether there was a default committed by the appellant in depositing rent, as had been directed for the period 01.07.1981 to 31.12.1981.' 'We, accordingly, allow these appeals, set aside the impugned orders and remit the case to the trial Court for decision afresh it1 the light of our order. The trial Court should dispose of the case as expeditiously as possible.' 4. The Hon'ble Supreme Court had directed that the question of deposit of rent should be gone into afresh by the trial Court which would determine whether there was default committed by the appellants in depositing the rent for a perioa from 01.07.1981 to 31.12.1981. 5. After the remand of the case by Hon'ble Supreme Court, the matter was reheard by the trial Court and the trial Court vide its order dated 22.04.2000 had allowed the application of the plaintiff as moved a/s. 13(5) of the Pent Act and feeling aggrieved against the said order, and appeal was filed before the District judge, Jaipur which had culminated in passing of the impugned order dated 01.08.2000 by the Addl. District Judge by which order dated 22.04.2000 had been confirmed. 6. The trial Court was concerned of payment of rent for the period from I 01.07.1981 to 31.12.1981. It was observed by the trial Court that from 01.11.1979 to 31.12.1981, the defendant was supposed to deposit the rent for 26 months @ Rs. 105/- p.m. i.e. total amount of Rs. 2730/- and according to the defendant he had deposited an amount of Rs. 2894.30 i.e. even more than the rent required to be deposited. The trial Court had found that from the record of the receipts so produced, the rent upto 31.12.1981 which was deposited had come to Rs. 2448/-i.e. it was less by an amount of Rs. 282/-. 7. The first appellate Court had rejected the contention of the petitioner that any excess rent had already been deposited which could be adjusted as a rent for the month of July 1981 and thus had dismissed the contention. 8. 2448/-i.e. it was less by an amount of Rs. 282/-. 7. The first appellate Court had rejected the contention of the petitioner that any excess rent had already been deposited which could be adjusted as a rent for the month of July 1981 and thus had dismissed the contention. 8. Record was called for and perused by this Court. 9. After going through the record, I am of the opinion that both the Courts below had totally ignored the record and thus the finding being beyond record are not sustainable on the facts. The total rent of 26 months from 01.11.1979 to 31.12.1981 (which includes rent period of July 1981 to December 1981) was to be deposited. The rent @ Rs. 105/- p.m. comes to Rs. 2,730/- plus the house tax + 6.25`%,. The appellant did move the application that he had lost some of the receipts of deposit of rent which rent is said to have been deposited with the permission of the Court on various dates. He had been repeatedly saying that the rent from 01.07.1981 to 31.12.1981 stood deposited with the orders of the Court in the bank. He had produced a certificate dated 26.09.1997 which certificate was issued, on the application dated 19.09.1997, reference of which is also mentioned in the order of the Hon'ble Supreme Court. S.No. Challan No./Date Amount 1. 7751/24.11.1979 Rs. 1,743.00 2. 7994/2.1.1980 Rs. 551.25 3. 128/9.4.1980 Rs. 1,115.65 4. 10119/5.2.1981 Rs. 669.40 5. 7855/26.11.1981 Rs. 111.56 6. 13271/31.3.1982 Rs. 446.24 DETAILS OF DEPOSITS AS PER REPORT OF OFFICER INCHARGE OF DISTRICT COURT, JAIPUR. 10. Out of the above said amount so deposited challan No. 7751/2411.1979 of an amount of Rs. 1743/- related to the period of 16 months @ Rs. 105/- along with house tax related from 01.07.1978 as per orders passed by the trial Court whereas the remaining amount related to the subsequent periods. 11. Per contra, counsel for the respondent even though does not dispute that under challan No.7994 an amount of Rs. 551.25 was deposited mentioning it to be rent for four month. He also does not dispute and cannot dispute that the rent for four months comes to Rs. 420/- plus tax @06.25%, and thus there is an excess amount of Rs. Per contra, counsel for the respondent even though does not dispute that under challan No.7994 an amount of Rs. 551.25 was deposited mentioning it to be rent for four month. He also does not dispute and cannot dispute that the rent for four months comes to Rs. 420/- plus tax @06.25%, and thus there is an excess amount of Rs. 105/- but states that this excess amount should be considered as house tax as appellant himself by depositing the rent, had mentioned the rent to be for four months from 01.11.1979 to 01.02.1980 and the remaining as house tax but does not dispute that house tax payable for four months would be about Rs. 25/- only and not Rs. 130/- and thus there is an excess deposit of Rs. 105/- prior to July 1981 in the Court record and also in the bank record, certificate of which has been produced on the file of the trial Court and this excess amount of Rs. 105/- can be adjusted towards July 1981. All other rents for every month along with tax already stands deposited. The only dispute was default of one month i.e. July 1981 amounting to Rs. 105/- which can be adjusted from the excess rent already paid for the month of November 1979 to February 1980 and thus the excess amount having been deposited in the Court is likely to be adjusted for July 1981. 12. As detailed above, amount of receipt No. 7994 dated 02.01.1980 related to the period from 01.11.1979 to 29.02.1980 i.e. four months including the payment of tax to the land owner of an amount of Rs. 446.25, but the land owner even though had mentioned the rent for four months, but it actually amounted to the rent of five months as a matter of fact i.e. the excess rent of one month had been deposited. 13. Vide receipt No. 128 dated 09.04.1980 the rent was deposited from 01.03.1980 to 31.12.1980 including tax amounting to Rs. 1115.65/-. 14. Similarly, vide receipt No. 1119 dated 05.02.1981 amount was deposited from 01.01.1981 to 30.06.1981 of an amount of Rs. 669.4(1 (Rent of July adjusted for one month excess paid in deposit challan No. 7994 as discussed above). 15. Vide receipt No. 7855 amount was deposited for August 1981 i.e. 01.08.1981 to 31.08.1981. 16. Vide receipt No. 1327 an amount of Rs. 446.24 was deposited from 01.09.1981 to 31.12.1981. 669.4(1 (Rent of July adjusted for one month excess paid in deposit challan No. 7994 as discussed above). 15. Vide receipt No. 7855 amount was deposited for August 1981 i.e. 01.08.1981 to 31.08.1981. 16. Vide receipt No. 1327 an amount of Rs. 446.24 was deposited from 01.09.1981 to 31.12.1981. 17. From the details mentioned above, the rent for July 1981 is missing but in challan No. 7994 dated 02.01.1980 the excess rent of Rs. 105/- has been deposited i.e. even though it is mentioned for four months upto 29.02.1980, but actually it is of five months. Thus, it was an excess rent which had been received by the landlord and even if the petitioner has no receipt in his possession for deposit of rent for the month of July 1981, the rent deposited in excess as detailed above can be treated to be adjusted towards the rent of July 1981. 18. The petitioner submits that the rent deposited vide challan No. 7994 of one month deposited in excess is and can be so adjusted for July 1981. The landlord had received an excess amount of Rs. 105/- and the contention of the landlord that should be treated as house tax instead of rent cannot be accepted as house tax was only payable of an amount of Rs. 26/- and not of Rs. 131 /-. The rent and the house tax is retained by the landlord and once he had retained the excess amount of Rs. 105/-, the tenant can have a benefit of this excess deposit by adjustment towards rent for the month of July 1981. 19. From the above-said statement of facts, it is clear that the Courts below have not gone deeply into the facts of excess deposit of rent of one month in challan No. 7994, deposit of which challan is already on record. 20. Apart from above, the tenant had been depositing even subsequent to that all the due amounts. It could not be imagined that the tenant who was facing the litigation for years together would intentionally commit to deposit the rent for July 1981 when he had already deposited all the rents prior and subsequent to this month. Because of adjustment of excess rent paid, even it it be considered that there was default for the month of July 1981, that stands adjusted from the excess rent paid vide challan No. 7994. 21. Because of adjustment of excess rent paid, even it it be considered that there was default for the month of July 1981, that stands adjusted from the excess rent paid vide challan No. 7994. 21. The finding of the Courts below to the effect that there was no excess rent (posited was beyond the record and both the Courts below had ignored the factual Of deposit of he excess rent which fact of excess amount Could not be denied as stated above. 22. The respondent relies on the case of Vijay Amba Dos Diware & Ors. v. Balkrishna Waman Dande &Anr., (2000) 4 SCC 12 where the tenant was in a monthly tenancy, the tenant was liable-to pay rent of every month. The tenant was in default of Rs. 5766/- for 93 months, from 01.04.1976 to 31.12.1983. In the earlier suit, the Court had directed the tenant to deposit the rent in the Court and the tenant had deposited Rs. 4,000/- in four instalments and balance of Rs. 1766/- remained. It was held that the manner of depositing rent in instalments clearly show that the tenant repeatedly and continuously defaulted in payment of rent and was, therefore, habitual defaulter and the expression 'habitual' would mean repeatedly or persistently and implies a thread of continuity stringing together similar repeated acts. 23. In the case of Chordia Automobiles v. S. Moosa & Ors., (2000) 3 SCC 282 , the Rent Controller had passed an order directing the enant to deposit the rent of Rs. 17,250/- by 16.08.1990 towards the rent for the period 01.01.1989 to 31.07.1990. The tenant had deposited the rent from the due date and he continued to deposit the future rent also but still the suit for eviction was decreed. It was held that if there is a default in payment of rent and notice is sent by the landlord of such default then the default would mature into a wilful default only if the default continues; in other words, the defaulted amount is not paid within a period of two months from the date of notice. The tenant had deposited the amount immediately when it was adjudicated. It was held that the wilful default means an act consciously or deliberately clone with open defiance and intent not to pay the rent but none of the authorities cited above have any bearing to the facts of the present case. The tenant had deposited the amount immediately when it was adjudicated. It was held that the wilful default means an act consciously or deliberately clone with open defiance and intent not to pay the rent but none of the authorities cited above have any bearing to the facts of the present case. 24. For the reasons mentioned above, I accept the revision petition, set aside the impugned orders and the application of the respondent landlord for striking off defence under section 13(5) of the Act is dismissed. *******