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Rajasthan High Court · body

2003 DIGILAW 1216 (RAJ)

Sushila Devi v. Sachindra Nath Saxena

2003-08-28

S.K.KESHOTE

body2003
Honble KESHOTE, J.–This revision petition under Section 115 CPC, 1908 is directed against the order dated 11.09.2001 of the Additional Civil Judge (JD) No. 5 (North), Kota. Under this order the application filed by the defendant petitioner under Section 5 of the Limitation Act for condonation of delay made in depositing the provisional rent has been rejected. (2). Learned counsel for the plaintiff respondent submitted that in view of the latest pronouncement of the Apex Court the learned trial Court has no jurisdiction to extend the period to deposit the rent determined under Section 13 (3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 and the learned trial Court has passed just and reasonable order in which this Court may not make any interference. (3). Mr. Goyal, learned counsel for the defendant petitioner contended that as per provisions of Section 13 (4) of the Act aforesaid, the tenant may have in all 105 days to deposit the rent and interest determined by the Court under Section 13 (3) of that Act. It is submitted that the rent and interest determined under Section 13 (3) of the Act aforesaid has been deposited by the defendant petitioner within 105 days excluding the period of stay of the order of the trial Court passed under Section 13 (3) of the Act aforesaid by the first appellate Court and this Court in the revision. (4). Learned counsel for the plaintiff non petitioner does not dispute that deposit of the rent and interest determined under Section 13 (3) of the Act aforesaid is made by the defendant petitioner within 105 days excluding the period of the stay of the order. (5). Against the order passed by the trial Court under Section 13 (3) of the Act aforesaid, the petitioner filed civil miscellaneous appeal. That appeal was dismissed. He challenged the order of the appellate Court in S.B. C.R.P. No. 873/99. This revision petition has been decided on 29.06.1999 and the time was granted to the petitioner to deposit the aforesaid amount of provisional rent and interest within fifteen days. (6). As there was some communication gape, the amount of the provisional rent and interest could not be deposited within fifteen days. (7). The defendant petitioner filed S.B. Civil Misc. Application No. 1/200 in S.B. CRP No. 873/99 for extension of the time. (8). (6). As there was some communication gape, the amount of the provisional rent and interest could not be deposited within fifteen days. (7). The defendant petitioner filed S.B. Civil Misc. Application No. 1/200 in S.B. CRP No. 873/99 for extension of the time. (8). The plaintiff non petitioner filed an application under Section 13(5) of the Act aforesaid for striking of the defence of the petitioner tenant against eviction. (9). The defendant petitioner filed an application under Section 5 of the Limitation Act for condonation of delay made in deposit of rent and interest. S.B. Civil Misc. Application No. 1/2000 has been decided by this court with the observations that defendant petitioner has already filed an application under Section 5 of the Limitation Act in the trial Court and the Court will take care of the matter. The learned trial Court has rejected that application under the impugned order. (10). As per provisions of Section 13(4) of the Act aforesaid, the Court has all power to extend the period for deposit of rent determined under Section 13(3) of the Act though not exceeding 105 days. It is not in dispute that the rent and interest have been deposited within 105 days. The period of the stay of the order aofresaid, is to be excluded from the period taken by the petitioner for depositing the rent and interest determined under Section 13(3) of the Act aforesaid. (11). Learned counsel for the plaintiff respondents is correct that under Section 5 of the Limitation Act the period cannot be extended for depositing the rent, but that is not the period beyond 105 days. It may be the period exceeding 105 days. This Court earlier in the revision petition while deciding the same ordered for grant of 15 days time to deposit the amount of the rent and interest. That deposit could not be made within that period for whatever reasons, where we go by the substance and justice oriented approach the deposit of rent and interest determined under Section 13(3) of the Act has been made within statutory permissible period. In case the order of the trial Court is allowed to stand, it will result not only causing in justice and prejudice to the petitioner but also any irreparable injury to him. The Courts are not to perpetuate in justice to the litigation. In case the order of the trial Court is allowed to stand, it will result not only causing in justice and prejudice to the petitioner but also any irreparable injury to him. The Courts are not to perpetuate in justice to the litigation. The Court are to see that on technical point and approach the litigation may not suffer. This aspect of matter has not been considered by the learned trial Court, thus the order of the trial Court cannot be allowed to stand. Learned counsel for the land lord respondent urged that this revision petition is not maintainable. It is hardly of any substance as in appropriate where the revision petition is not maintainable, the Court has power to do justice to the litigant and reference may have to Article 227 of the Constitution of India. (12). As a result of the aforesaid discussion, this revision petition succeeds and the same is allowed. The order dated 11.09.2001 of the Additional Civil Judge (JD) No. 5 (North) Kota is quashed and set aside and it is hereby declared that the rent and interest determined under Section 13 (3) of the Act aforesaid has been deposited by the petitioner within time. (13). Consequent upon decision of the revision petition, the stay application also accordingly stands disposed of.