Dhan Raj Jayana vs Sat Parkash Singh

Mehar Singh, J.—This is an appeal by the plaintiff Dhan Raj Jayana, from the Judgment and decree, dated February 22, 1957, of the First Class Subordinate Judge of Delhi, partly dismissing and partly decreeing his claim against the defendant, Sat Parkash Singh. The suit of the plaintiff was for eviction of the defendant from the premises and for recovery of Rs. 11,180/- as arrears of rent. The learned Judge dismissed the claim of the plaintiff for eviction of the defendant but decreed his claim for arrears of rent to the tune of Rs. 6,890/12/-, leaving the parties to their own costs.

It is one property but tour portions of it are described as (a), (b), (c) and (d) in paragraph 2 of the plaint. The first three portions were taken on rent by the defendant on January 1, 1944, and the fourth on July 1, 1944. The total rent for all the four portions settled between the parties was Rs. 478/2 - per mensem, but it was split over the portions in this manner: Rs. 150/- for portion (a), Rs. 100/- for portion (b), Rs. 125/- for portion (c), and Rs. 75/- for portion (d). This makes a total amount of Rs. 450/- per mensem. To this is added Rs. 28/2/- as house tax, which also the defendant agreed to pay. Up to April 30, 1947, payment of rent according to this arrangement was made by the defendant. On April 17, 1947, however, the plaintiff served a notice u/s 8 of the Delhi and Ajmer-Merwara Rent Control Act, 1947 (Act 19 of 1947), on the defendant for enhancement of the rent from Rs. 450/- to Rs. 652/8/- per mensem, with Rs. 40/12/- as the amount of house tax, a total of Rs. 693/4/- per mensem, pointing out that the defendant was liable to pay this rent with effect from May 1, 1947. This notice was received by the defendant on April 22, 1947.

The plaintiff claims that after the receipt of that notice the defendant accepted the position that he was liable to pay Rs. 693/4/- per mensem but asked for rebate for a temporary period which the plaintiff says he agreed on conditions of the defendant (a) paying monthly rent regularly and (b) keeping good relations with him. The rebate was 131/2 per cent on the amount staged which brought it down to Rs. 600/- per mensem, which in turn was split as Rs. 564/12/- per mensem being the rent and Rs. 35/4/- house tax. To this the position taken by the defendant has been that the plaintiff was not entitled to enhance the rent, but inspire of that he says that he agreed to pay to the plaintiff Rs. 600/- per mensem for a period of five years ending on April 30, 1952. He further says that the condition about good relations was merely renewed as a formality to please the plaintiff as the condition precedent, and was not intended to be life long. He does not show how Rs. 600/- were split for the purpose of rent and house tax. He was previously upto April 30, 1947, paying in all, both rent and house-tax, Rs. 478/2/- per mensem. How he came to raise it to Rs. 600/- is not satisfactorily explained by him. There seems, therefore, to be truth in the averment of the plaintiff on this aspect of the case between the parties. Subsequently on July 14, 1948, the plaintiff withdrew the concession of rebate, of course saying that the defendant had not paid the rent regularly and had not maintained good relations. The notice was received by the defendant on July 15, 1948. So from August 1, 1948, the original enhanced rent of Rs. 652/8/- per mensem with Rs. 40/12/- as house-tax, a total of Rs. 693/4/-, became payable by the defendant. The defendant had agreed to pay house-tax which was at first 61/4 per cent and from October 1, 1949, it was enhanced by the Delhi Municipality to 10 per cent. On rent of Rs. 652/8/- per mensem, at that rate, the house-tax came to Rs. 65/4/-. The total of there amounts came to Rs. 717/12/- per mensem.

The plaintiff claimed lent from August 1, 1948, to September 30, 1949, at the rate of Rs. 693/4/- per mensem and from October 1, 1949, to April 30, 1952, at the rate of Rs. 717/12/- per mensem. The amount for the first period comes to Rs. 9,705/8/-, and for the second period to Rs. 22,250/4/-, the total of the two amounts being Rs. 31,955/12/-. The defendant had been paying the plaintiff at the rate of Rs. 600/- per mensem and while the plaintiff continued giving credit of the amounts received in the account of the defendant, every time some balance was shown as due from the defendant in the bill that he sent to the latter next time. The total of those payments was Rs. 25,800/-. The difference beween the amounts of Rs. 31,955/12/- and Rs. 25,800/- comes to Rs. 6,155/12/-, which were the arrears claimed by the plaintiff down to April 30, 1952. The plaintiff by a notice made a demand for payment of the balance of arrears of rent and not receiving a favourable reply from the defendant he again served a notice on May 28, 1952, on the defendant terminating the tenancy from June 30, 1952. Two months rent at the rate of Rs. 717/12/- per mensem comes to Rs. 1435/8/-. The defendant did not give possession of the premises. The plaintiff calculated rent from July 1, to November 30, 1952, for a period of five months at the rate already stated, and reached the figure of Rs. 3,588/12/-. The total of the figures of Rs. 6,155/12/-, Rs. 1,435/8/-, and Rs. 3,588/12/- comes to Rs. 11,180/-. This is the amount claimed by the plaintiff as arrears of rent from the defendant in the suit which he instituted on December 9, 1952.

This suit of the plaintiff is also u/s 13 of the Delhi and Ajmer Rent Control Act, 1952 (Act 38 of 1952), for eviction of the defendant from the premises on a large number of grounds out of which, in so far as the present appeal is concerned, at the time of the arguments, only two grounds have been urged for consideration on the side of the plaintiff, and those grounds are that the defendant is liable to eviction (1) u/s 13(1)(a) because he has neither paid nor tendered the arrears of rent due, and (2) u/s 13(1)(k) because, notwithstanding previous notice, he has used or dealt with the premises in a manner contrary to conditions imposed on the plaintiff by the Delhi Improvement Trust while giving him a lease of the land on which the premises are situate, inasmuch as he had made structural alterations in the building contrary to and beyond the sanctioned plan for it.

In this appeal the plaintiff seeks eviction of the defendant from the premises on the two grounds just stated and also a decree for an amount of Rs. 4,289/4/- as arrears of rent over and above the amount stated in the decree of the trial Court in this respect, this amount, now claimed in appeal having been disallowed by the learned trial Judge. These are the only matters in controversy between the parties in this appeal to which arguments of the learned counsel have been confined.

Taking the second ground first, the learned counsel for the plaintiff has only relied upon two constructions referred to in paragraph 10(a) of the plaint for the purposes of this ground. The first construction to which objection is taken is a room made on the back, top roof, of the third-floor, and the second construction, said to be objectionable, is the conversion of a portion of front verandah into rooms or shops. The tenancy began sometime in 1944. Plaintiff Dhan Raj Jayana has appeared as P. W. 1. He went to Assam and on his return, he says, his accountant informed him in his absence the defendant had added one room on the back side of the third storey and converted part of the front verandah in to a room. Amin Lal (P. W. 12) was the accountant of the plaintiff up to 1918. He explains that when the plaintiff returned from Assam he gave information to him in July 1948, about those two structural alterations in the premises. So, it is clear, that those two structural alterations were in existence in July 1948. It does not appear from the evidence of either that he had personal knowledge of this matter. The first letter written by the plaintiff to the defendant is P. 66 of July 14, 1948. In this letter the plaintiff tells the defendant that he had made certain additions and alterations, without his consent, which was contrary to the bye laws of the Delhi Municipal Committee and the rules of the Improvement Trust. He, therefore, warned the defendant that should those authorities take any action against him, the responsibility will be that of the defendant. What is of note in this letter is that neither the description of the structural additions and alterations has been given, nor the location of the same. It seems inconceivable that if the accountant of the plaintiff gave information about the additions of two rooms by the defendant, one on the third storey and the other by conversion of part of the verandah, the plaintiff should not have given those details in this letter P. 66. The defendant in his reply of July 30, 1948, P. 117, denied having made any additions or alterations. It is for the first time in the letter P. 88 of October 8, 1948, that the plaintiff came forward to say to the defendant that "the construction of wooden fixture room on the top of the roof of back rooms as well as another in the front verandah of the premises are there." It appears clear from this that both the rooms were claimed as wooden fixtures. In this very letter the plaintiff asked the defendant to deposit one year''s rent amounting to Rs. 8,319/- as security for restoration of the premises to their original condition after removal of the additions, alterations or decorations made by the defendant. The learned trial Judge has taken this demand by the plaintiff on the defendant as a waiver by the plaintiff of his objection to the additions, alterations and decorations. Although in this context there is reference to additions and alterations, but in the scope of the word ''alteration'' would come all sorts of minor decorations done by the defendant inside the building which slightly interfered with the interior of the building. So that the demand for security was not clearly set against the two rooms said to have been newly added, and it would be rather too much on this statement to sustain the conclusion of the learned trial Judge that this letter amounted to a waiver on the part of the plaintiff of his objection to the construction of those two rooms. After that on December 14, 1948 the plaintiff served notice P. 91 on the defendant. In this it was stated that the defendant had converted the verandah on the ground-floor into a show-case by fixing planks in the opening and had also constructed a wooden fixture room on the top floor. In letter P. 96 of March 20, 1949, the plaintiff asked the defendant to remove those two additional rooms. To the same effect are two other letters of the plaintiff to the defendant, P. 101 of August 1, 1949, and P. 03 of October 1, 1950. In between there is the letter P. 105 of July 19, 1949, by the Executive Officer of the Delhi Improvement Trust to the plaintiff in which it was stated that the plaintiff had deviated from the sanctioned plan in the construction of the building on four items, out of which only two are relevant at this stage. The first is, the second item in the letter, of enclosing verandah with wooden planks and converting it into a room, and the second, is the third item in this letter, regarding a tin shed having been erected on the eastern side. There is the fourth item in this letter which refers to one pacca room constructed on the east of mamty. The letters of the plaintiff to the defendant do not refer to any tin shed on the eastern side or any pacca room on the east of the mamty. This letter is signed by the Executive Officer of Delhi Improvement Trust, who is not a witness in the case. The plaintiff has produced Amar Chand Saini (P.W. 13), an Overseer of the Delhi Improvement Trust, to prove this letter. His statement was recorded on January 6 1955. He said that he had visited the premises a year before. Having said this he identified the signatures of the Executive Officer on the letter P. 105. He, therefore, did not say anything from his own knowledge about the two additional rooms as alleged by the plaintiff. He did try to say that he had verified the deviations during the previous year when the file came to him, but he had not the report with him that he made in this connection. He admitted that he did not go inside the premises because he had not the file with him nor did he get permission to enter the premises. His evidence is quite useless. So, the letter of the Executive Officer of the Delhi Improvement Trust rather goes much further than the claim of the plaintiff himself. On this letter the plaintiff on August 17, 1949, P. 106, wrote to the defendant to remove the two rooms, and then in the next letter of September 26, 1949, P. 107, it was said that instead of the defendant removing the wooden fixtures of the two rooms, he was trying to replace the wooden walls with pacca walls On September 5, 1952, by the letter P. 109, and on November 11, 1952, by the letter P. 110, the Lands Officer of the Delhi Improvement Trust pressed on the plaintiff to proceed against the defendant by way of a suit for the removal of the two structures made against the sanctioned plan. This is as far as the plaintiff''s evidence is concerned, and it is obvious that the conclusion of the learned trial Judge is correct that this evidence does not prove the construction of an additional room on the roof of the third-floor and conversion of a part of the front verandah into a room by the defendant. First, there was no allegation, then it was vaguely developed, and then it was improved through the letter of the Delhi Improvement Trust. The oral evidence of the plaintiff is not at all reliable in this respect. In fact there is no direct evidence of the construction of the two new rooms. Vidya Parkash Sehgal (P. W. 10) said that the tin shed had been removed in April, 1954, and in the verandah there was just a milk shop, where during matches Coca Cola and other cold drinks were served. Raj Krishan (P. W. 11) said that the partition in the verandah was 10 high and it was only on one side of it. Indar Pal (D. W. 3) and Wazir Chand (D. W. 6) said that there was a wooden partition in the verandah. However, the plaintiff''s own evidence shows that the partition was merely by wooden planks not even reaching the roof. Such a partition could not possibly be described as a room. On the third-floor, first it is described as a wooden fixture room, then as a tin shed, and latter an attempt is made to describe it as a pacca structure. The evidence of the construction of the two rooms, one on the third storey and another by the conversion of a part of the front verandah, is unsatisfactory and on that evidence the learned trial Judge has rightly come to the conclusion that structural alterations as referred to in clause 1(ii) of the lease deed, P. 127, of July 4, 1941, in favour of the plaintiff, have not been proved to have been made by the plaintiff contrary to the terms of the lease. The lease deed in paragraph 1(ii) says that " the lessee shall not make any alterations in and additions to the buildings so approved by the lessor either externally or internally without first obtaining the permission of the lessor in writing." There is not sufficient evidence to interfere with the conclusion of the learned trial Judge in this respect and to say that this part of the lease covenant between the plaintiff and the Delhi Improvement Trust has been contravened. This ground on the side of the plaintiff thus fails.

In so far as the first ground with regard to the question of nonpayment of arrears of rent is concerned, at this stage the controversy between the parties is confined only to a period of five years between May 1, 1947, and April 30, 1952, for which period the plaintiff had first claimed enhanced rent of Rs. 652/8/- per mensem plus Rs. 40/12/- as house-tax, the total coming to Rs. 693/4/- per mensem, and had then agreed to the reduction of this total figure to Rs. 600/- per mensem, splitting up the amount between rent and house tax as already explained, the plaintiff''s case has been that this was contingent and conditional. The defendant not having lived up to the contingency and the conditions, he served notice on the defendant resuming the rebate of 131/2 per cent allowed to him, and from May 1, 1947, the defendant became liable to pay the full amount of Rs. 693/4/- per mensem. The defendant has relied upon a document marked by the learned trial Judge as ''X''. There is no definite date given in it and at the bottom of it is stated "July", 1947 However, the parties do not deny the execution of this document. It is in the form of a letter addressed by the defendant to the plaintiff. In the first two paragraphs it recites how the parties had come to an agreement, and in the remaining paragraphs, 3 to 13, the detailed terms of the lease are set out in the fashion in which such terms are given in an ordinary lease deed or rent note. At the end appear these words: "We hereby agree and accept all the terms, i.e., 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13. as described above." This letter is signed by both the parties, the plaintiff as well as the defendant. It is further signed by two witnesses. Apart from its form being that of a letter in the beginning, it is exactly in the form of a rent note or a lease deed. After considering the first two paragraphs of this the learned trial Judge was of the opinion that it is a memorandum of an already completed transaction and thus does not require registration. This, however, is not correct. It is in the very form in which the terms of a lease are couched; the last sentence in the document as reproduced above, the fact that both the parties have signed it, and the fact that two witnesses have signed it, leave no manner of doubt that it is not a memorandum of a past transaction but is in itself a lease deed intended by the parties to be operative as such. Otherwise there would not have been any point in obtaining signatures of both the parties to this document and in having witnesses'' signatures on it, nor would there have been any point in the parties saying at the end that they were accepting all the terms detailed in this document It is in the face of this that the learned counsel for the defendant found himself unable to support the approach of the learned trial Judge in this respect. This document is, therefore, not admissible in evidence. It is an unregistered lease deed which cannot be taken into consideration in evidence to prove the rent settled between the parties by its terms for that is not a matter of collateral nature to the main substance of the document: Haladhar Pathak v. Madan Mohan Singha Choudhury A. I. R. 1937 Cal 499 and Moti Sagar v. Dhanna Mal A. I. R 1922 Lah 389. Once this document is out of the way, the claim of the defendant that for five years between May 1, 1947, and April 30, 1952, he was only liable to pay Rs. 600/- per mensem and not Rs. 693/4/- per mensem cannot possibly stand. He, therefore, fails in this respect of his defence. The claim of the plaintiff for this period at the enhanced rate, as stated, after payments received, conies to Rs. 4,289/4/-, the amount disallowed by the learned trial Judge. To this amount the plaintiff is entitled.

The plaintiff claimed Rs. 11,180/- as arrears up to November 30, 1952. The arrears from December 1, 1952, to February 28, 1953, come to Rs. 2,153/4/-. The total of these two figures is Rs. 13,333/4/-, which is the amount of arrears down to February 28, 1953. On March 11, 1953 some days before the first hearing of the suit, the defendant paid in Court Rs. 14,500/- towards arrears of rent and costs of the suit. Now, it has been urged by the learned counsel for the plaintiff that the total costs of the suit come to Rs. 2558/- and that added to Rs. 13,333/4/- make an amount of Rs. 15,891/4/-, with the result that the deposit of the defendant is short by Rs. 1,391/4/-. On the side of the defendant it is pointed out that not the costs of the whole suit but only costs of that part of the suit which relates to the prayer for ejectment are to be taken into consideration under sub-section (2) of section 13 of Act 38 of 1952. If that is done, then the costs of the suit confined only to the prayer for eviction, come to Rs. 1260/6/- and this added to Rs. 13,333/4/- gives the amount of Rs. 14,593/10/-. In that case the defendant''s deposit is short by Rs. 93/10/- only.

The learned counsel for the plaintiff has pressed that under sub-section (2) of section 13 of the Act it is "the costs of the suit" that must be paid along with arrears of rent by the tenant, and he urges that the costs of the suit means the costs of the suit as lodged by the plaintiff. Whereas the reply on the side of the defendant is that the words "costs of the suit" in sub-section (2) of section 13 are confined to a suit filed u/s 13, whether any other prayer is added to it or not, and only the costs of the suit u/s 13 are to be taken into consideration for the purposes of sub-section (2) of that section. The proviso to sub-section (1) of section 13 reads-

Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied,-

and then follow clauses (a) to (i), the grounds of eviction. The expression ''any suit'' in this proviso raters to suit for recovery of possession on the grounds that follow the proviso. That expression does not refer to any other suit, nor can it be read to cover any additional prayer in a suit in which eviction is sought on The grounds under the proviso to sub-section (1) of section 13. If this view is correct, it follows that the words ''the suit'' as they appear in sub-section (2) of section 10 have reference only to such suit as referred to in the proviso to sub-section (1). On this consideration the conclusion is clear that the costs of the suit referred to in sub section (2) of section 13 are costs not of the suit as laid by the plaintiff in Court including all kinds of prayers, but are only confined to that part of the suit which comes directly and strictly under sub-section (1) of section 13 for eviction of the tenant. This view was taken by Bhandari C. J. in Roop Ram v. Chhida Ram C. R. No. 95-D of 1955, Civil Revision No. 95-D of 1955, decided on December 15, 1955. No doubt the learned Chief Justice did not discuss the matter, probably because he found it to be obviously plain. Dulat J. in Nanak Chand v. Shrimati Devi C. R. 197-D of 1954, Civil Revision No. 197-D of 1954, decided on August 24, 1954, took the contrary view giving no reason except to say that sub-section (2) plainly read means that the tenant must pay the costs of the suit which may have been filed by the landlord against him. These two cases were con-considered by Grover J. in Laxminarayan Rmghunath Rai v. Jhabhu Mal C. R. No. 660-D of 1957, Civil Revision No. 660-D of 1957, decided on October 30, 1959, and the learned Judge followed the opinion of Bhandari C. J., rather than that of Dulat J., following somewhat the same approach as I have indicated above. I respectfully agree with the opinions of Bhandari C. J. and Grover J.

On the view as above, the deficiency in the payment of the costs of the suit by the defendant is only Rs. 93/10/-. According to sub-section (2) of section 13, ''on the first day of the hearing of the suit or within such further time as may be allowed by the Court'', the defendant has to pay the arrears of rent together with the costs of the suit if he is to escape eviction for non payment of arrears under clause (a) to the proviso to sub-section (1). My immediate impression on reading this sub section was that the words "or within such further time as may be allowed by the court" meant further time allowed by the Court when an application is made by the defendant, the tenant, on the first day of the hearing of the suit praying for allowance of time in this respect, and that if he should make any such prayer not on the first day of the hearing of the suit but instead on a subsequent date, such prayer did not fall within the words " or within such further time as may be allowed by the Court". This is what the learned counsel for the plaintiff has also pressed. However, on reconsideration I do not think that my first impression has been correct. Those words give power to the trial Court, having regard to the justice of the facts and circumstances of the case, to allow a defendant-tenant time to pay up arrears and costs of the suit even after the first day of the hearing of the suit, and this is not confined to a prayer made on the first day of the hearing of the suit, and the power may be exercised on a subsequent date in a suitable case on a proper cause being shown. L. Narsingh Das v. Hakim Ghulam Nabi 78 P.R. 1909 - 144 P.L.R. 1909, was a case under the Punjab Preemption Act of 1905. The learned Judges, following three Privy Council cases, among others, held that the words ''within a time to be fixed by the Court'', or the like, do not preclude the Court from passing orders from time to time extending the period originally fixed by it, and this too even after the expiry of the time originally fixed by the Court. Similar opinion has been expressed in another Division Bench case. Ram Rattan v. Raja Ram A.I.R.1923 Lah. 643. Thus under sub-section (2) of section 13, within the scope of the words ''within such further time as may be allowed by the Court'', the trial Court could extend time on an application by the defendant for payment of the arrears and costs of the suit. In Bishan Sarup Bansal v. Apt Parshad C.R. No. 68. D of 1955, decided on October 31, 1955, J. L. Kapur J., Vaidya Nath Aiyar v. Gopi Chand Sehgal C.R. No. 92-D of 1955, Civil Revision No. 92 D of 1955, decided on December 15. 1955, Bhandari C. J., lnder Narain v. Ram Chand C.R. No. 104-D of 1957, Civil revision No. 104-D of 1957, decided on August 19. 1959, Grover J., and Hari Chand v. Naina Ram C.R. No 485 of 1959 Civil Revision No. 485 D of 1959, decided on November 16, 1981, Shamsher Bahadur J., extended time under sub-section (2) of section 13 of Act 38 of 1952, though in none of these cases there is discussion of the matter. All the same, the view of the learned Judges support what has already been said above in this respect. However, there is one case, Radhey Sham v. Bala Parshad C.R. No. 300-D of 1959, Civil Revision No. 300-D of 1959, decided on November 20, 1959, in which Chopra J. held that once there was non-compliance with an order under sub-section (5) of section 13 of Act 38 of 1952, the Court has no discretion in the matter of consequence of such default on the part of the tenant. Default under sub-section (5) of section 13 relates to striking of defence of the defendant. This case, however, does not affect the aspect of the matter that is now under consideration. The original Court then had power under sub-section (2) of section 13 of the Act to give time for payment of the arrears of rent with costs of the suit.

The arguments on the side of the plaintiff concluded on June 11, 1956, in the trial Court. The suit was adjourned to June 20, 1963, for arguments on the side of the tenant. In between, on June 17, 1956, the defendant made the application P. 12 in which he said that he was willing and able to pay the excess amount and prayed that time may be extended for depositing the excess amount claimed by the plaintiff, which he stated in the application to be Rs. 1,391/5/-. He prayed for extension of time under sub-section (2) of section 13. this was opposed by the plaintiff in his reply of July 4, 1956, when the plaintiff pointed out that the application of the defendant was wholly misconceived and unwarranted by law. He also said that the Court had no jurisdiction to entertain the application at the stage at which it was made. The trial Court passed no order on this application of the defendant. There followed then five adjournments up to July 31, 1956, on which date the arguments on the side of the defendant were also concluded. Before the case could be decided, the order of the trial Court made on August 22, 1966, shows that it was transferred to the Court of another Subordinate Judge of the First Class. The arguments were then re heard and the case was disposed of on February 21, 1957, in the manner already stated. The Subordinate Judge to whom the case was transferred did not pass any order either on the application P. 12, dated 17th June, 1956, so the application of the defendant for time to be allowed to pay up the difference claimed by the plaintiff to the extent of Rs. 1,391/5/- remained undisposed of. It now turns out, as it has been shown above, that in fact the only excess to which the plaintiff was entitled was an amount of Rs. 93/10/-. While there was delay on the part of the defendant in making this application, it is obvious that the plaintiff was claiming an excess of more than ten times as against to what in fact was entitled. The defendant had made a deposit of a sum of Rs. 14,500/-, and it would be saying too much to impute to him contumacious conduct in refraining to pay the balance. He was anxious to pay the whole of the amount of arrears and the costs of the suit. He appears to have taken reasonable steps to do so and was prepared to pay any additional amount due. The plaintiff, however, was claiming something far in excess than what was really due to him. With all this, the trial Judge made no order on the application of the defendant.

On appeal the whole matter opens up and there is a re-hearing of the suit. So, the appellate Court on such re-hearing has the same power as the original Court. Consequently in this appeal on the application P. 129 of July 17, 1956, of the defendant, which has remained undisposed of, this Court in appeal can make a proper and just order under sub section (2) of section 13 of Act 38 of 1952. The circumstances of the case, as the same have been detailed and explained above, provide a proper and just consideration of the basis on which the defendant be allowed extension of time under the provisions just stated to pay the balance of the costs of the suit, for his earlier payment of Rs. 14,500/- on March 11, 1953, covers the arrears of rent then due and part of the costs of the suit. The amount that the defendants has to pay in addition is Rs. 93110/-. He is allowed extension of time to make that payment within 30 days from the date of this judgment, excluding the date of this judgment. The learned counsel for the plaintiff has urged that under sub section (2) of section 13 of the Act, the payment is to be of the arrears of rent ''then due'', which means due either on the first day of hearing of the suit, if the payment by the tenant is made on that day, or the extended date which comes within the scope of the words ''within such further time as may be allowed by the Court''. This is correct. He then says that if the defendant is being now allowed time to make up the deficiency in the costs of the suit under sub-section (2) of section 13 by the 30th day after the date of this judgment, then by that very date he must pay up the arrears of rent accumulated to that date or payable by the end of the month immediately preceding that date. It has been stated at the bar that under an order of this Court, during the pendency of this appeal, the defendant has been depositing Rs. 600/- per mensem as rent. Making allowance for all the deposits duly made by the defendant, he will pay the balance of the arrears by the 30th day after the date of this judgment to have the benefit of the extended time, as allowed above, under sub-section (2) of section 13 to make up the deficiency in the costs of the suit to the extent of Rs. 93/ 0/-. If he does not pay up or if in addition to what he has already partly paid does not make up the deficiency in the rent by the 30th day after the date of this judgment, then his application for extension of time under sub-section (2) of section 13 to make up the deficiency in the costs of the suit to comply with that provision shall be taken to have been dismissed, and the result of that will be that the suit of the plaintiff against him shall then stand decreed on the ground of non-payment of rent and costs of the suit in accordance with the sub-section (2) of section 13 of Act 38 of 1952. So that the allowance of the application of the defendant for this purpose is conditional on his paying up the rent due or if he has partly paid rent making up the deficiency in the rent due up to 30 days of the date of this judgment, or up to a date falling within those 30 days which is end of the month by which he normally pays rent.

The consequence is that subject to the condition as has been stated above the appeal of the plaintiff against the decree of the trial Court seeking eviction of the defendant is dismissed, but his appeal for recovery of arrears of rent is acceptable to the extent of Rs. 4,289/4/- as claimed in the grounds of appeal, so that his original claim of Rs. 11, 80/- in this respect stands decreed. The plaintiff has only been partly successful in his appeal. In the circumstances, the parties are left to their own costs.

Falshaw, C.J.

I agree.

Appeal partly allowed.