Rampal vs Ramchandra

Vineet Kothari, J.—1. The present second appeal under Section 100 CPC has been filed by the defendant-tenant-Rampal s/o. Late Shri Jankilal Bhandari in this Court on 09.10.2000, aggrieved by the reversal of the judgment and decree dated 17.04.1989 passed by the learned trial court of Additional Munsif Magistrate, First Class No. 1, Bhilwara in Regular Civil Case No. 36/81 - Shri Ramchandra Vs. Shri Rampal and grant of the eviction decree by the learned appellate court of Additional District Judge No. 1, Bhilwara by the judgment and decree dated 09.08.2000 passed in Civil Appeal No. 49/90 - LRs. of Ramchandra Vs. Rampal.

A suit for eviction was filed by the plaintiff-landlord before the learned trial court, in respect of the suit shop in question, on the ground of default in payment of rent under Section 13(1)(a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as ''the Act of 1950''), which was rejected by the learned trial court on 17.04.1989 with the following findings recorded in favour of the defendant-tenant and against the plaintiff-landlord:-

"Any failure to pay the provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction under clause (a) of sub-section (1) of section,.........

The eviction of a tenant could be ordered only when one of the conditions laid down in section 13 of the Act is satisfied. Section (4) of the Act states that failure to pay provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction under section 13(1)(a) of the Act. While sec. 13(1)(a) says that the tenant shall be liable to ejectment if he has neither paid nor tendered the amount of rent due from him for six months. The amended provisions came into force on 9.6.1965. The plaintiff''s suit was instituted on 18.9.65. Thus, the present suit brought by the plaintiff would be governed by the amended provisions of sec. 13(1)(a) of the Act. To satisfy the condition of sec. 13(1)(a), there must be a default of six months rent. The plaintiff appellants contention that even a default of single month in the payment of provisional rent under sec. 7(4) of the Act should render a tenant liable to ejectment cannot be accepted. Sec. 7(4) envisages a default, and this default shall be counted for the purpose of sec. 13(1)(a) of the Act. To constitute a default rendering the tenant liable for ejectment it must be a default for payment of the rent for six months. This sec. 7(4) of the said Act override the provisions of sec. 13(1)(a) of the Act.

The learned appellate court however, allowed the appeal of the plaintiff-landlord on 09.08.2000 with the following findings and observations in favour of the plaintiff-landlord and against the defendant-tenant:-

While admitting the present second appeal on 19.10.2000, a coordinate Bench of this Court framed the following substantial question of law for consideration by this Court:-

"(i) Whether the learned lower appellate court was in error in decreeing the suit for eviction solely on the ground envisages by Section 13(1)(a) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 without recording any finding to the effect that for the reasons to be found by the learned lower appellate court, the defendant is not entitled to benefit of Section 13(6) of the Act?

Mr. Ravi Bhansali appearing with Mr. Dhanesh Saraswat, learned counsel for the defendant-appellant-tenant, relying upon the judgment of this Court in the case of Pan Mal Vs. Gyanchand, 1980 RLW 4, has submitted that in the present case, the alleged default in payment of rent by the tenant in respect of the suit shop in question situated at Bhilwara, was for three months of November & December, 1975 and January, 1976, which was determined by the learned trial court in a suit filed by the tenant himself for fixation of standard rent under Section 6 of the Act, provisionally @ Rs. 125/- per month, which was ultimately reduced to Rs. 75/- per month, but the defendant-tenant paid the said rent @ Rs. 125/- per month for the aforesaid three months vide challan No. 581 dated 03.08.1979 and the deposit was made vide Receipt No. 475 dated 17.08.1979 for Rs. 375/-, as endorsed by the Munsif & Judicial Magistrate, First Class, Bhilwara, and that deposited rent was also withdrawn by the landlord. Mr.Ravi Bhansali therefore, contended that there was a waiver on the part of the respondent-landlord, as per Section 19-D of the Act and no default was thus committed by the defendant-tenant in payment of rent and thus, the learned trial court was justified in rejecting the eviction suit in the present case, whereas the learned appellate court has erred in reversing the same. He also urged that Section 7(4) of the Act, which is sought to be relied upon by the plaintiff for making out a ground of default under Section 13(1)(a) of the Act, per se does not result in eviction decree, but it merely furnishes a ground for instituting a suit for eviction on the ground of default in payment of rent and the only provision for seeking eviction under the Act of 1950, is Section 13, which has a non-obstante clause therein, and therefore, only on the specified grounds stated in Section 13(1) of the Act, such eviction suit can be maintained by the plaintiff. He therefore, submitted that the claim of the plaintiff-landlord in the present case, that the rent for the aforesaid three months of November & December, 1975 and January, 1976, for which determination was made under Section 7(1) of the Act in the suit instituted by the defendant-tenant under Section 6 of the Act, was not paid within fifteen days from the end of the concerned month, which could not result in the eviction decree on its own. But since the default in payment of rent under Section 13(1)(a) of the Act should be for a minimum period of six months, therefore, the present suit instituted by the plaintiff was not competent and maintainable and the eviction decree could not have been granted by the learned appellate court in the present case.

On the other hand, Mr. Himanshu Maheshwari, learned counsel for the plaintiff-respondent-landlord relied upon the later decision of this Court in the case of Shankarlal Vs. Ved Prakash, 1993 RLW (1) 294 and urged that the delay in payment of rent, even for these three months, which was of about four years in the present case, could not have been condoned by the courts below, in view of the judgment of the Hon''ble Supreme Court in the case of Nasiruddin vs. Sita Ram - 2003 DNJ (SC) 180, in which it has been held that Section 5 of the Limitation Act does not apply to the provisions of the Rent Control Act, 1950, and therefore, the eviction decree was the only consequence of the default in payment of rent for these three months, which was not paid within the period of fifteen days on the expiry of the month concerned. He also refuted the contention of the learned counsel for the defendant-appellant-tenant on the anvil of Section 19-D of the Act and urged that Section 19-D of the Act does not apply to the facts of the present case, since when the provisions of Section 19 read at seriatim, including Sections 19-A (Payment, remittance and deposit of rent by tenant), 19-B (Time for deposit and effect of deposit within time), 19-C (Savings as to expenses of rent and forfeiture or rent in deposit), 19-CC (Deposit of rent in advance) and 19-D (Waiver of default) would not apply to the facts of the present case and the eviction suit filed by the plaintiff-landlord in the present case on 23.09.1980 was maintainable and the eviction decree on the said default of three months deserves to be granted. He also urged in the alternative that even after determination of the provisional rent under Section 13(3) of the Act in the present suit, the defendant-tenant has made certain defaults in payment of rent determined under Section 13(3) of the Act, and therefore, on the basis of such defaults also the eviction decree deserves to be maintained and he may be permitted to file application under Order 41 Rule 27 CPC for bringing on record such additional documents for consideration by this Court.

Relying upon the decision of the learned Single Judge of this Court in the case of Shankarlal Vs. Ved Prakash (supra), Mr. Himanshu Maheshwari, learned counsel for the plaintiff-landlord also submitted that though that was a case of composite suit filed for eviction under Section 13(1)(a) of the Act and for fixation of standard rent under Section 6 of the Act and the default claimed by the plaintiff-landlord was also for more than six months in that case, yet the learned Single Judge of this Court granted eviction decree in the said case on the basis of the alleged default committed in payment of rent in terms of Section 7(4) of the Act, and that judgment deserves to be followed. However, he candidly submitted that the earlier view of the learned Single Judge in the case of Pan Mal Vs. Gyanchand (supra) was not referred or distinguished by the learned Single Judge in the aforesaid later decision in the case of Shankarlal Vs. Ved Prakash (supra).

I have heard the learned counsels for the parties and perused the record as well as the judgments of this Court cited at the Bar.

It would be appropriate to reproduce here the relevant Sections 7(4), 13(1)(a) and 19-D of the Act of 1950, in the present case, which are quoted below for ready reference:-

"7. Fixation of Provisional rent:-

(1) .....

(2) ......

(3) ......

(4) Any failure to pay the provisional rent for any month by fifteenth day of the next following month shall render the tenant liable to eviction under clause (a) of sub-section (1) of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub-section (1) were a decree of the court in a suit for periodical payments.

Eviction of tenants:-(1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order, in favour of the landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied-

(a) that the tenant has neither paid nor rendered the amount of rent due from him for six months; or

......

19-D. Waiver of default:-When there is no proceeding pending in the court for the recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent, by the landlord from the tenant shall operate as a waiver of such default."

Though both the learned counsels relied upon two different judgments in support of their respective contentions, this Court does not really find any conflict of views in both these judgments, cited at the Bar.

A bare perusal of Section 7(4) of the Act quoted above, would reveal that a failure to pay provisional rent by the tenant, as fixed by the court only, "shall render the tenant liable to eviction under clause (a) of sub-section (1) of section 13". Section 7(4) of the Act does not provide for any automatic eviction decree upon such failure on the part of the tenant. The recourse still has to be taken by the plaintiff-landlord to Section 13 eviction petition and make out one or more grounds specified in Section 13(1) of the Act.

Section 13(1)(a) of the Act, which is relevant for the present case provides for a minimum default of six months by the tenant in payment/tender of the amount of rent to the landlord and not less than that. The default in the present case was admittedly claimed by the plaintiff-landlord only for three months, namely, November & December, 1975 and January, 1976. Even if it is assumed that the tenant never paid the rent for these three months, the landlord could not maintain the suit for eviction under Section 13(1)(a) of the Act, in such circumstances, since the minimum default envisaged in this provision for furnishing a ground for instituting a suit for eviction is of six months and not three months or any period less than six months. The words, "shall render the tenant liable to eviction" used in Section 7(4) of the Act does not result a per se or automatic decree of eviction. It only talks of furnishing a ground for eviction, subject to other conditions of Section 13(1)(a) of the Act fulfilled. In such circumstances, the case has to be set up by the plaintiff that there is default in payment of rent for a minimum period of six months and not three months, as already stated in Section 13(1)(a) of the Act. Therefore, on the basis of such default of only three months, the suit itself deserves to fail in the present case.

Coming to the contentions of the learned counsels that whether by such payment for three months'' rent also made by the defendant tenant by challan No. 581 dated 03.08.1979 bearing Receipt No. 475 dated 17.08.1979 for Rs. 375/- @ Rs. 125/- per month for these three months, whether the tenant wiped out the default in payment of rent or whether it could be said that there was a case of waiver on the part of the landlord under Section 19-D, and whether the delay in deposit of such rent could be condoned or not. The answers to these questions, in the considered opinion of this Court, are as follows.

In view of the judgment of the Hon''ble Supreme Court in the case of Nasiruddin vs. Sita Ram (supra), obviously the delay in payment of rent could not be condoned, since Section 5 of the Limitation Act does not apply in such rent control and eviction cases, falling within the ambit and scope of the Act of 1950. But in the present case, the deposit of such rent at a later period in the year 1979 and withdrawal thereof by the landlord, can give the benefit of Section 19-D of the Act to the defendant-tenant. The suit, in the present case, was instituted on 23.09.1980, whereas much prior to that, when no such eviction proceedings were pending, the default rent of three months in question, namely November & December, 1975 and January, 1976, came to be deposited by the defendant-tenant on 17.08.1979 for Rs. 375/-, as aforesaid. The provisions of Section 19-D stipulates that when there is no proceeding pending in the court for recovery of possession of the premises, the acceptance of rent in respect of the period of default in payment of rent, by the landlord from the tenant, shall operate as a waiver of such default. Though exact date of withdrawal of such rent of Rs. 375/- by the landlord as deposited by the defendant tenant on 17.08.1979, is not before this Court and the learned counsel for the plaintiff-respondent-landlord failed to produce any document before this Court to establish that the said sum of Rs. 375/- was not withdrawn prior to institution of the suit by him on 23.09.1980, the benefit of waiver in terms of Section 19-D of the Act should go to the defendant-tenant. Even if the provision of Section 19-D is read in conjunction with Sections 19-A, 19-B, 19-C and 19-CC, this benefit of waiver can be claimed by the defendant-tenant when suit for eviction is filed on the ground of default only before the learned trial court. Thus, though the default is not wiped out, the default of three months is not sufficient to grant decree for eviction under Section 13(1)(a) of the Act read with Section 7(4) of the Act of 1950.

Now coming to the judgments cited at the Bar. It would be appropriate to quote the relevant portions of the aforesaid two judgments.

In Pan Mal Vs. Gyanchand, 1980 RLW 4 (supra), in paras 6 and 7, the learned Single Judge of this Court held as under:-

"6. The eviction of a tenant could be ordered only when one of the conditions laid down in section 13 of the Act is satisfied. Section 7(4) of the Act states that failure to pay provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction under sec. 13(1)(a) of the Act. While sec. 13(1)(a) says that the tenant shall be liable to ejectment if he has neither paid or rendered the amount of rent due from him for six months. The amended provisions came into force on 9-6-1965. The plaintiff''s suit was instituted on 18-9-1965. Thus, the present suit brought by the plaintiff would be governed by the amended provisions of sec. 13(1)(a) of the Act. To satisfy the condition of sec. 13(1)(a), there must be a default of six months'' rent. The plaintiff-appellants'' contention that even a default of single month in the payment of provisional rent under sec. 7(4) of the Act should render a tenant liable to ejectment cannot be accepted. Sec. 7(4) envisages a default, and this default shall be counted for the purpose of sec. 13(1)(a) of the Act. To constitute a default rendering the tenant liable for ejectment it must be a default for payment of the rent for six months. This sec. 7(4) of the said Act cannot override the provisions of sec. 13(1)(a) of the Act.

Having given my most anxious consideration to the facts of the case, I have no hesitation in holding that non-payment of provisional rent under Sec. 7(4) of the Act does constitute a default, but it does not constitute a default within the meaning of Sec. 13(1)(a) rendering the tenant liable for ejectment unless such default is for payment of rent for six months. In the instant case, the learned counsel for the plaintiffs-appellant could not establish that the defaults committed by the tenant are such as to fulfill the requirement of Sec. 13(1)(a). I am of the considered opinion that there is no infirmity in the judgments of the learned lower Courts. As such, there is no reason to take a different view."

As against this, in the later judgment in the case of Shankarlal Vs. Ved Prakash, 1993 RLW (1) 294 (supra), the learned Single Judge of this Court, discussing the provisions of Section 13(1)(a) and Sections 6 & 7 of the Act in a composite suit filed for fixation of standard rent and for eviction on the ground of default under Section 13(1)(a) of the Act, held as under:-

"(22) I have noticed above that plaintiff had filed the present suit for eviction on the ground that tenant having committed default is liable to be evicted under Sec. 13(1)(a) of the Act. He has also prayed for fixing standard rent under Sec. 6 of the Act, therefore, this suit is a composite suit for fixation of standard rent under Sec. 6 as well as for eviction on grounds set forth under Sec. 13. Hence, the suit is not only governed by Sec. 13 of the Act but also Sec. 7 of the Act.

(23) It will be relevant to reproduce Sec. 7 of the Act:

"Sec. 7-Fixation of provisional rent.-

(1) Upon the institution of a suit under Sec. 6, the Court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force till a decree fixing the standard rent therefore, is finally made in such suits.

(2) The provisional rent fixed under this section shall also apply to such arrears of rent as, in the case of a tenant who has instituted within six month from the commencement of the tenancy a suit under Section 6 on the ground of rent agreed upon being excessive relate to the period intervening between such commencement and institution.

(3) A suit for recovery of arrears of rent to which the provisional rent fixed under this section is applicable shall be stayed by the Court upon the payment by the tenant in Court of the total amount due to the landlord on the basis of such provisional rent.

(4) Any failure to pay the provisional rent for any month by the fifteenth day of the next following month shall render the tenant liable to eviction under clause (a) of sub-section (1) of Sec. 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub-section (1) were a decree of the Court in a suit for periodical payments.

(5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed."

(24) The above provision postulates that as soon as a suit for fixing standard rent is filed, the court has to determine standard rent provisionally, which remain binding between the parties until a decree fixing the standard rent is finally passed in such suits. Duty to pay such provisional standard rent during the pendency of suit and consequences of failure to pay such provisional standard rent, is provided under Sec. 7(4).

(25) Sub-sec. (4) of Sec. 7 is clear in its terms, that where a tenant fails to pay the provisional rent for any month by the fifteenth day of next following month; he renders himself liable to eviction under sec. 13(1)(a) of the Act.

(26) This provision is entirely different from the provisions of Sec. 13. The nature of deposit under Sec. 13(4) and its consequences provided under Secs. 13(5) and 13(6), are also, therefore, entirely different.

(27) Sub-sections (3), (4), (5) and (6) of Section 13 are also relevant to notice in this context. The Scheme contained in these provisions is that when a suit for eviction is filed on the ground set forth in Sec. 13(1)(a), with or without other grounds; the court is required to determine amount of rent payable by the tenant to landlord upto the end of the month previous to that in which such determination is made at the rate of rent at which it was last paid or was payable. Thereafter, tenant has to pay such amount within 3 months. Apart from deposit of such amount determined under Sec. 13 tenant is also to deposit or pay monthly rent subsequent to the period upto which rent has been determined, by fifteenth of each succeeding month. That is the scheme of Secs. 13(3) and 13(4).

(28) Consequences of non-payment of and payment, are provided under Secs. 13(5) and 13(6) of the Act. While non-payment entails striking out of defence; payment is time confers benefit that notwithstanding the fact that tenant is defaulter in respect of payment of rent for a period of six months as pleaded in plaint, no decree on that account can be passed. However, this is also clear that such benefit cannot be availed by the tenant in respect of subsequent defaults.

(29) A default simplicitor in payment of monthly rent, which is future rent after determination of amount due under Sec. 13(3), does not make the tenant a defaulter second time, unless such default conforms to Sec. 13(1)(a). In order to be ''default'', within the meaning of Sec. 13(1)(a), there has to be a default in payment of rent for a period of six months or more. However, where in a suit for standard rent, provisional rent is determined under Sec. 7(1), failure to pay such provisional rent for any one month thereafter, render the tenant liable to be evicted under Sec. 13(1)(a) of the Act, by making the provision under Sec. 7(4) that - "...... shall render the tenant liable to eviction under clause (a) of sub-sec. (1) of Sec. 13 ...." - the provision has directly been incorporated by reference, as part of Sec. 13(1)(a) and, it has to be read as if enacted in Sec. 13(1)(a) as well; furnishing one of the grounds that takes away the protective umbrella of the Act on condition of Sec. 7(4) being fulfilled, that is to say, nonpayment of provisional rent determined under Sec. 7(1), even for one month makes the tenant liable for eviction on default under Sec. 13(1)(a) of the Act.

(30) It is true that where there is no suit for ejectment but is only for fixation of standard rent, tenant cannot automatically be dispossessed for his failure to pay provisional rent by fifteenth of next succeeding month during the pendency of such suit. But, when in a composite suit for ejectment based on grounds set forth under Section 13(1) and for fixation of standard rent, a tenant fails to deposit provisional standard rent during pendency of such suit, two-fold question arise. Firstly, whether the court by taking notice of subsequent even of such failure on the part of the tenant, can sustain a decree for eviction on the ground under Sec. 13(1)(a) read with Sec. 7(4) in that suit itself? and Secondly; - whether such failure to deposit monthly provisional standard rent, which is also a required deposit under Sec. 13(4), can be or ought to be condoned and time be extended for payment of such monthly rent?

(31) Answer to the first question, in my opinion, must be in the affirmative and of the second question, in the negative.

(32) It can be said that in a suit for eviction on the ground of default, under the Scheme of Sec. 13, the court determines amount of rent due to landlord upto the last date of month preceding the month in which such determination is made at the rate at which rent is last paid or was payable and, thereafter tenant is required to deposit such amount within the time prescribed under Sec. 13(4). Under Sec. 13(4), the tenant is also required to deposit or pay monthly rent at the rate so determined by 15th of every month. Failure to deposit such amount within the time allowed or continued deposit such amount, results in statutory consequences under Sec. 13(5) and 13(6) respectively. For giving effect to either of the provisions, the court has to arrive at a finding whether amount in terms of Sec. 13(4) has been deposited or not? Thus, this enquiry into events that has taken place during the pendency of suit is must in order to give effect to statutory provisions. The subsequent event of failure to deposit rent at the rate determined, in a composite suit like present, one also entails certain statutory consequences under Sec. 7(4) of the Act. In a suit for eviction based on ground set forth under Sec. 13(1)(a), such fact of failure to deposit provisional standard rent by 15th of succeeding month, when admitted or found by the court as a result of determining question arising under Sec. 13(5) or 13(6), the court must take notice and give effect to for the purposes of Sec. 7(4) as well, without requiring a formal amendment of pleading. In this connection, reference may be made to Lachmeshwar Prasad Shukul and Ors. Vs. Keshwar Lal Chaudhari and Ors. (8), wherein their Lordships held as under:

"The hearing of an appeal under the procedural law of India is in the nature of re-hearing and therefore in moulding the relief to be granted in a case of appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against."

(33) The principle fully governs the case where the question of giving effect to statutory consequences of Sec. 7(4) arising on the basis of facts admitted or established in an enquiry to that effect for giving effect to other provisions of Act as well. However, the decision of this case is not rested on this ground, alone.

(34) In a suit for eviction based on grounds set forth under Sec. 13(1)(a) coupled with prayer for determination of standard rent, attract not only the provisions of sec. 13 but also of sec. 7 of the Act, the determination under Sec. 13(3) is to be made at the rate which it was payable. Rate at which amount under Sec. 13(1)(a) is to be determined in a suit where question of fixing standard rent is also involved, is rate of provisional standard rent under Sec. 7(1); whether separately fixed before determination of the amount under Sec. 13(3) or simultaneously determined while amount under Sec. 13(3) is fixed. Recently, in Sunmoon Stationers vs. Banshilal (supra) (S.B. Civil Misc. Appeals No. 173/84 & 174/84), decided on 13.1.1993, this Court opined as under:

"The determination of amount of rent under Sec. 13(3) and rate of rent payable or last paid at which that amount is to be calculated, both being provisional in nature; in such cases, it must be held that where in a suit for eviction and arrears of rent, a counter claim has been filed for determining standard rent of the premises; it amounts to raising a dispute as to the rate at which rent was payable for period for which tenant may have defaulted and while passing order under Sec. 13(3), the Court also resolve this dispute by provisionally determining rate of rent for calculating the amount of rent to be deposited or paid to landlord and such determination of rent must be deemed to be provisional determination of standard rent within the meaning of Sec. 7(1) also."

(35) Amount of rent under Sec. 13(3) is fixed upto end of the month preceding the month in which such determination is made payment of such amount in terms of Sec. 13(4) can at best result in not passing any decree under Sec. 13(6) in respect of any default that may have occurred upto that period.

(36) However, non-payment of future monthly rent in such composite suit, as in the present cases, results in two-fold consequences. Firstly, suit being for fixation of standard rent under Sec. 6, non-payment of provisional rent results in furnishing a fresh ground of eviction to the plaintiff. It also results in striking out of defence of the tenant against eviction under the Act; albeit, under the discretion of the court in respect of default pleaded, under Sec. 13(5).

(37) While, in respect of default under Sec. 13(4), assuming without expressing any opinion on the issue raised in this regard, that the courts have power to condone delay and save the consequences of striking out of the defence, it cannot condone delay so as to take away vested right of the landlord to get a decree of eviction on the ground of such second default as a result of breach of obligation under Sec. 7(4). To say that even in such cases also, where the composite suit like present has been filed, the Court has power to condone delay in making payment of monthly rent under Sec. 13(4) and avoid the consequences of Sec. 7(4); will be rendering the substantive provisions of the Act nugatory. It may be noticed that a default in payment of monthly rent at the rate at which standard rent has been provisionally fixed for the period after that date upto which amount has been determined, amounts to subsequent default, to which benefit of sub-section (6) is not envisaged. By necessary corollary it must be held that court has no power to condone delay in payment of such amount which results in taking away the right of plaintiff-landlord to secure a decree of eviction on subsequent default.

(38) Therefore, the principle that court has inherent power to condone delay in making payment can only apply to such payments which do not furnish by itself a ground of eviction, but consequence is only confine to striking out of defence. Such power does not extend to condone such default which has resulted in furnishing fresh ground for eviction.

(39) In that view of the matter, I am of the opinion that principle enunciated in Vishandas''s case (supra), is not applicable to the facts of the present case.

(40) It may be noticed that under Sec. 7(1), a provisional rent is to be binding and remain in force, until a decree fixing the standard rent is finally made in such suits. It may be relevant to notice here that while interpreting Section 13(4), this Court has held that in the absence of any provision for obligation to make the payment of future monthly rent until decision of the suit; as was the case under Bombay Rent Control Act, the appeal cannot be considered as continuation of suit for the purposes of Section 13(4).

(41) However, where there is express provision, that a particular order is to remain in force until a decree is finally passed in a suit the expression has been interpreted by the Supreme Court that appeal is continuity of suit and the obligation of tenant in respect of such obligation continues also. That is the view of the Apex Court in Garika Pati Veeraya Vs. N. Subbiah Choudhary and Ors. (9), that, an appeal is not an independent and fresh proceedings; but is only continuation of original suit and is only a stage in the suit itself.

(42) The Supreme Court in Mrinalini Shah''s case (10), while interpreting the words ''until suit is finally decided'' held appeal to be continuity of suit, which has been distinguished by this Court in Kamruddin Vs. Wahid Ali (11), on the ground that while Bombay Act used the words ''until suit is finally decided'' Section 13(4) of the Rajasthan Act does not use such words. As I have noticed, this distinction does not exist when the case is to be considered in the light of Section 7(4) read with Sec. 13(4) of the Act.

(43) The decisions cited by learned counsel for the appellant relating to question that appeal is not continuation of suit, are all in the context of Sec. 13(4) only and are not applicable to a composite suit, like present one, which is governed by Sec. 7(4) as well as squarely covered by decision in Mrinalini Shah''s case (supra)."

A comparative reading of these two judgments would reveal that the later judgment in favour of the landlord resulting in eviction decree turned mainly on two grounds, that (i) the default established was for more than six months and (ii) it was a composite suit for fixation of standard rent and eviction on the ground of default in payment of rent under Section 13(1)(a) of the Act. Both these contingencies are not available in the present case before this Court, since it was a case of composite suit on the basis of default in payment of rent month by month provisionally determined under Section 7(1) of the Act, the learned Single Judge found that default occurring under Section 7(4) of the Act would be treated as established for the purpose of Section 13(1)(a) also being for more than six months. Thus, there is actually no conflict with the ratio of these judgments. The earlier judgment in the case of Pan Mal Vs. Gyanchand (supra), emphasized the words, "...render the tenant liable for eviction under Section 7(4)", has to be read as merely furnishing a ground for eviction under Section 13(1)(a) of the Act, and not result in automatic or per se decree of eviction under Section 7(4) of the Act. So it was said in para 30 of the later judgment in the case of Shankar Lal Vs. Ved Prakash (supra). Since in the later judgment, fact of default of more than six months was established before the Court, therefore, the eviction decree was maintained. Therefore, neither the contingency of default in payment of rent for less than six months, nor the contingency of filing a subsequent suit under Section 13(1)(a) of the Act on the basis of default committed under Section 7(4) of the Act, was the fact situation before the learned Single Judge in the case of Shankarlal Vs. Ved Prakash (supra). But in the case of Pan Mal Vs. Gyanchand, the facts were akin and near to the facts of the present case and the contention of the plaintiff-landlord that even a default for a single month in payment of provisional rent under Section 7(4) of the Act, should render the tenant liable for ejectment was rejected and the eviction decree was refused. In the present case also, the claimed default is of three months only, in the case of Pan Mal Vs. Gyanchand (supra). As stated above, the default of three months is not a sufficient ground for eviction decree, in view of non-obstante clause of Section 13(1) of the Act, which clearly stipulates that no eviction decree can be granted except satisfying the terms under clause (a), viz. that the tenant has neither paid nor tendered the amount of rent due from him for six months.

In view of this, even if a waiver was not to be given to the defendant-tenant as per Section 19-D of the Act, though this Court is accepting that contention of tenant also, the eviction decree in the present case, could not be granted, since the minimum period of default of six months under Section 13(1)(a) of the Act is not satisfied in the present case.

This Court also does not find any justification to allow the plaintiff-landlord to now move an application under Order 41 Rule 27 CPC seeking to place on record certain additional evidence for subsequent period, which has not been so filed during the pendency of this appeal. The said oral prayer of Mr. Himanshu Maheshwari, learned counsel for the plaintiff-landlord is therefore, liable to be rejected and is hereby rejected. 22. Therefore, the present second appeal of the defendant-tenant deserves to be allowed, and the same is allowed, while answering the substantial question of law framed above in favour of the defendant-tenant and against the plaintiff-landlord, and setting aside the judgment and eviction decree of the learned appellate court dated 09.08.2000, the judgment and decree of the learned trial court dated 17.04.1989 rejecting the suit for eviction filed by the plaintiff-landlord is restored. No costs. Copy of this order may be sent to the concerned parties as well as the learned courts below forthwith.