Bapulal and Another vs Ramesh Chandra

Rajesh Balia, J.—This is defendant-tenants'' second appeal against the judgment and decree dated 8-2-1994 passed by Additional District Judge, Nimbhera affirming the judgment and decree passed by Munsif and Judicial Magistrate, Nimbhera dated 3-4-1987, decreeing the plaintiff''s suit for eviction on the ground of default in payment of rent for a period of more than six months on the date of filing of the suit.

Facts necessary to be noticed are that the appellants are tenant in the suit premises situated at Nimbhera since 1-3-1980 @ 75/-per month. On the date of filing of suit in 1982 the defendants had already defaulted in payment of rent of 19 months. In addition to Rs. 75/- as rent, Rs. 5/- per month as water charges were also to be paid. On 11-7-1983, the trial Court determined the amount of rent payable u/s 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950. The defendant failed to deposit the amount so determined within the time allowed u/s 13(4) and delayed the payment. The plaintiff moved an application for striking out defence. The defendant moved an application for extension of time and condoning delay in making payment of the amount. By order dated 5-3-1984 the trial Court found that the defendant has taken a false plea for delay in making payment of the amount. However, looking to the short delay in making the payment of the amount, in spite of its finding about the false plea taken by the defendants, the trial Court allowed the application conditionally. The Court directed that if the defendants pay Rs. 150/- as cost to the plaintiffs, the delay in making payment be condoned and defence may not be struck off. The defendants did not deposit the cost, but preferred an appeal against the order. By order dated 25-7-1986, the Appellate Court refused to interfere and further made it clear that if the defendants had made the payment of the cost within three months of the order of the trial Court, the delay in making payment shall stand condoned by extending the time, otherwise, the defence of the defendant may be struck off. No amount had been deposited, nor after this order also the amount was deposited. As the defendant had not deposited the amount of cost on the condition of which only the extension of time in depositing the amount u/s 13(4) was granted, the trial Court proceeded with the case by striking-out the defence and decreed the plaintiffs suit for eviction on 3-4-1987. The Trial Court also found that the defendant has deposited the rent up to December, 1986 only in the Court, which he will be entitled to receive, and further decreed for the arrears of rent from January, 87 onwards.

After the suit was decreed in April, 87 the defendant preferred an appeal before the lower Appellate Court. He deposited the amount of cost on 6th May, 87. On 9th September, 87 he applied for extension of time for deposit of cost u/s 148, C.P.C. in order to enable him to take advantage of the order passed by the lower Appellate Court on 25-7-86. That application was rejected by the Lower Appellate Court on 17th September, 1992. Against which a revision was filed before this Court, The said revision No. 565/92 was dismissed on 3-11-1992 by holding that no sufficient cause has been shown by the petitioner for the extension of the time and the order passed by the learned lower Court cannot be said to be in any manner unjust or improper.

One fact may further be noticed in this connection that after decree was passed by the trial Court, the plaintiff-decree holder levied execution of the decree. In the execution proceedings on 26-9-1987 the following order was passed:--

^^odyk; QjhdSu gkftj gS A fM�hnkj o egcwu esa jkthukek is''k fd;k tks ckn tkp rLnhd dj ''kkfey QkbZy fd;k A jkthukek ds vuqlkj ;j;wuke es dksbZ jk''kh vc cdk;k ugha gS A o fooknxzLr ifjlj fnukad 31&12&87 rd [kkyh djuk r; gqvk gS A

vr% btjk; ekfQd jkthukek [kkfjt dh tkrh gS i=koyh QSly ''kqekj gks A**

Ultimately, the appeal was dismissed by the lower Appellate Court on 8-2-1994. Hence this second Appeal.

It was first contended by the learned counsel for the appellants that both the Courts below have erred in law in striking out the defence for non-payment of the cost only. The law does not permit striking out of defence for non-payment of cost for allowing or disallowing an application. The requirement of Section 13(5) is non-payment or delayed payment of the amount determined u/s 13(3) within the time allowed u/s 13(4). Once delay was condoned and time was extended by order dated 5-3-1984 the cost awarded by that order cannot be made a ground for striking out the defence. Learned counsel for the appellant relied on Prakash Narain Vs. Additional District Judge and Others,

Having carefully considered the contention of the learned counsel for the appellant, I am of the opinion that in the facts and circumstances narrated above the contention though attractive in first instance, cannot be accepted.

It is apparent that the extension of time for condoning delay in making payment of the amount determined u/s 13(3) was not an unconditional one. The Court has exercised its discretion in favour of the defendants for extension of time, notwithstanding that his conduct was found to be contumacious in taking a palpable false plea only, on condition that defaulting defendants make the payment of the cost to the plaintiff. The defendant was not desirous to fulfil this condition, therefore, be appealed. The Appellate Court found the condition to be valid one and further made it clear that if the defendants had deposited the cost within three months of the date of the trial Court order only then it will be considered to be a fulfilment of condition and not otherwise. Still the defendants made no efforts to make payment of the cost but waited until the suit was decreed by the trial Court. It was only then on filing of the first appeal that he deposited the amount of the cost and moved an application for extension of time which was fixed by the Appellate Court vide its order dated 25-7-1986 in order to fulfil the requirement of the condition for condoning the delay. That application was rejected by the lower Appellate Court and the rejection was found to be valid on merit by this Court. In these circumstances, it is apparent that condition of extension of time and for condonation of delay in making payment of the rent was not fulfilled by the defendants and the order of extension of time and condonation of delay did not become effective, Therefore, in my opinion, it cannot be said that the defence has been struck out for non-payment of cost. It is not a case of striking out of defence for non-payment of cost but is a case where condition for extension of time and condonation of delay in making payment had not been fulfilled. Such extension of time and condonation of delay did not take place which resulted in striking out of the defence. The striking of the defence is for delayed payment of the amount and not for non-payment of the cost.

In view of the aforesaid conclusion the decision in Allahabad''s case has no application to the present facts of the case and does not lend any assistance to the cause of the appellants.

Apart from the aforesaid facts it may also be noticed that by not making monthly payment from January, 87 until passing of the decree by the trial Court in April, 87 the defendant has even otherwise made himself liable for striking out the defence for non-fulfilment of condition of Section 13(4).

It was next contended by the learned counsel for the appellants that issue regarding defaulter has not been properly framed and no finding has been given about the non-tender of the amount of rent by the defendant to the plaintiff. His contention is that u/s 13(1)(a) of the Act, the twin conditions are that the tenant has neither paid nor tendered the rent. The issue related to the non-payment of rent but it misses the condition to be established that the defendants has failed to tender the amount of rent.

From the perusal of the two judgments and the pleadings, I find that there is no force in this contention. It was never the case of the defendant that he ever tendered the amount to the landlord but he refused to accept the same. As they did not raise this plea it also did not find place in the issues. The appellants never objected to frame of issue before this appeal. The appellants never made a grievance of framing of issue. Moreover, the defect in framing of issue by itself cannot be a ground for interfering with the judgment of the lower Courts. Provisions of Section 99 of the CPC are clear in this regard.

It may further be noticed at this juncture that apart from the above technical pleas raised by the appellants from the order passed in the execution proceedings quoted above, the defendants-tenants had already settled with the decree-holder during the execution proceedings and as a matter of fact, he has lost locus stand to continue with the appeal after having arrived at settlement in the execution proceedings for satisfying the decree.

As a result, I do not find any force in this appeal arid same is hereby dismissed with costs. The appellants shall surrender the vacant possession of the suit premises within two months provided he makes payment of all arrears of rent and mesne profits payable under the decree if not already paid or deposited within two weeks from today. Appellants shall further furnish an undertaking before the executing Court within 15 days that he shall surrender vacant possession of the suit premises on or before 15th of May, 94 and will not part with the suit premises or any part of it in any manner in favour of any person other than the decree-holder or his assignee.