Brandaban Das vs Gulab Chand

Jagat Narayan, C.J.—This is a revision application by the defendant against an appellate order of the District Judge, Jaipur City.

The defendant is admittedly a tenant of the plaintiff with effect from 23-1-63 on a monthly rent of Rs. 75/-. It is also not disputed that no rent was actually received by the plaintiff till the date on which he instituted the present suit for recovery of arrears of rent and for eviction on the ground of default.

The case of the defendant is that although a registered lease deed was executed on 2-2-63 for a period of 11 years the plaintiff refused to accept the rent for the very first month and he sent it by money order which was refused. According to the defendant rent for future 3 months was also sent by money order every month, but these money orders were all refused. The defendant then sent a registered notice on the plaintiff that he was ready and willing to pay the rent in any form the plaintiff desired. After the amendment of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the defendant deposited rent for 32 months amounting to Rs. 2,400/- on 21-9-65 u/s 19A which came into force with effect from 9th June, 1965. Notice was served by the Court of this deposit on the plaintiff, but he did not withdraw the amount. The defendant again sent rent by money order, but the plaintiff refused to accept it.

On 19-2-66 the present suit was filed. Summons was served on the defendant for 20-4-66. He appeared on 12-3-66 and filed an application in which he made the above allegations. He stated that he was willing to make a deposit of the amount required u/s 13 (4) and asked the court to determine it. A sum of Rs. 2,400/-had already been deposited by the defendant u/s 19A on 21-9-65. He deposited a further amount of Rs. 450/- on 15-3-66 under an ex parte order of the Court. He thus deposited the rent due up-to 22-3-66.

On 9-10-67 the trial Court determined the rent upto 22-10-67 as Rupees 4,275/- and interest as Rs. 598.50, total Rs. 4,873/50 and granted time upto 31-10-67 to the defendant to pay it. The defendant deposited the balance which he had not already deposited,

The plaintiff filed an appeal u/s 22 of the Act against the determination made by the trial Court on the ground that no question for determining the amount u/s 13(5) arose in the case as there was no dispute as to the amount of rent and interest which were payable.

At first the appellate Court dismissed the appeal without going into the question raised on behalf of the plaintiff on the ground that the plaintiff was not prejudiced by the order. The plaintiff preferred a revision application against that order and on the direction of this Court the learned District Judge determined this question by his judgment dated 25-3-71, against which the present revision application has been filed.

The learned District Judge held that there was no dispute as to the amount which was payable u/s 13 (4) and therefore there was nothing which could be determined by the trial Court u/s 13 (5). He accordingly allowed the appeal and set aside the amount determined by the trial Court on 9-10-67.

It is contended that the case of the defendant was that he had committed no default and therefore whether interest was payable on the rent or not was a question in dispute and the decision of the learned District Judge that Section 13 (5) had no application is without jurisdiction. On behalf of the plaintiff it is contended that even if it is assumed for the sake of argument that the learned District Judge erred in holding that Section 13 (5) had no application and that Section 13 (4) applied he only committed an error of law which cannot be corrected on a revision application u/s 115, C. P. C. The learned District Judge while hearing an appeal u/s 22 against the order of the trial Court dated 9-10-67 had jurisdiction to decide the question. Even if his decision is erroneous it cannot be said that it is without jurisdiction.

Having heard the learned counsel for the parties I am satisfied that the contention raised on behalf of the plaintiff must prevail in view of the Full Bench decision of this Court in Harak Chand v. State of Rajasthan ILR (1970) 20 Raj 88 (FB), in which the scope of Section 115, C. P. C. was defined on the basis of the decisions of the Privy Council and the Supreme Court.

The revision application is accordingly dismissed without any order as to costs.