A.C. Goyal, J.
1. This is the second appeal by the defendant- tenant against the judgment and decree dated 17.7.2001 whereby learned Additional District Judge No. 3, Jaipur City, Jaipur affirmed the judgment and decree of eviction dated 20.3.1999 passed by learned Additional Civil Judge (Junior Division) No. 4, Jaipur City, Jaipur.
2. The plaintiff Sh. Jamnadas filed a civil suit for arrears of rent and eviction on 16.9.1976 against the defendant-tenant Sh. Kesar Lal with the averments that two shops and one 'Kotha' were let-out to the defendant on 9.2.1951 on monthly rent of Rs. 35/-. On account of default in payment of rent and reasonable and bonafide requirement for the plaintiff's son Rajendra Kumar, the plaintiff had filed a civil suit No. 19/1969 for arrears of rent and eviction. The defendant in that civil suit filed an application under Section 13-A of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (in short the Act). That application was decided on 31.10.1975. The defendant having complied with that order got the benefit of the first default. The defendant, thereafter did not pay the rent for November, 1975 to August, 1976 and thus committed second default. The defendant is now not carrying on any business in the suit shop and he has sub-let the suit premises to his son Girraj Prasad who is doing his independent business in the name and title of Pitaliya Mishthan Bhandar. The eviction was sought on the grounds of second default, sub-letting and substantial damage. It was also prayed that standard rent may be fixed at the rate of Rs. 87.50 per month.
3. The defendant in his written statement having admitted the tenancy denied all the grounds of eviction.
4. Issues were framed. Evidence was recorded. The Trial Court vide judgment dated 20.3.1999 held that the defendant got the benefit of the first default in the 1st civil suit No. 19/1969; that the defendant committed second default; that the defendant has sub-let the suit premises and thus passed a decree of eviction. During the pendency of the suit defendant Kesar Lal died, hence his son Girraj Prasad was impleaded as his legal representative. The plaintiff Jamna Das also sold this property to the plaintiff No. 1/1 Rishikesh Fatehpuria.
5. First appeal preferred by the appellant-Girraj Prasad was dismissed vide impugned judgment dated 17.7.2001.
6. This Court on 24.9.2001 framed following substantial questions of law:-
1. 'Whether the defendant-appellant against whom a decree for partial eviction was passed in an earlier suit which went up to the stage of Supreme suit which went up to the stage of Supreme Court and the defendant-appellant was protected from eviction in regard to one of the shops which is in his occupation, could be treated as a sub-tenant in the subsequent suit for eviction in regard to same suit premises although he was protected from eviction from that shop?'
2. 'Whether the defendant-appellant could be held guilty of default in regard to such arrears for which payment had already been made in the previous suit and had been granted benefit of the first default?'
7. Question No. 1:- Before coming to the submissions made by learned counsel, it is necessary to narrate brief facts of the first civil suit No. 19/1969. Thus suit for arrears of rent and eviction was filed by the plaintiff landlord Jamna Das against the defendant-tenant Kesar Lal on 13.5.1968. Eviction was sought on the grounds of default in payment of rent and reasonable and banafide requirement. The defendant denied both the grounds of eviction. Issues were framed. After recording the evidence the then learned Additional Munsif No. 1, Jaipur City, Jaipur vide judgment dated 10.10.1979 held that the plaintiff has proved his reasonable and bonafide requirement. Giving benefit of first default, decree of eviction was passed.
8. First Appeal No. 1/1982 filed by the defendant-tenant was dismissed by Additional District Judge No. 1, Jaipur City, Jaipur vide judgment dated 13.11.1987.
9. During the pendency of this appeal the defendant-tenant Sh. Kesar Lal died on 13.1.1980. An application was moved by Girraj Prasad-on of the deceased-appellant Kesar Lal for substitution of his name. He claimed himself to be the tenant as provided under Section 3 (vii) (b) of the Act. This application was allowed by the First Appellate Court on 30.3.1981 on the ground that this application was not opposed by the plaintiff-respondent. Consequently, the appellant Girraj Prasad was impleaded as legal representative of the deceased-tenant Sh. Kesar Lal.
10. The appellant Girraj Prasad filed S.B. Civil Second Appeal No. 2/1988 against the judgment of 13.11.1987. In this appeal on a suggestion given by the Court, both the parties agreed that the matter may be decided on the basis of partial eviction of the premises and the controversy as to which portion should be kept by which of the parties may be decided by this Court. Vide judgment dated 30.4.1988 this Court partly allowing the appeal passed a decree for partial eviction with respect to one of the shops situated towards the western side to remain with the appellant and also fixed Rs. 50/- as monthly rent for this one shop. The appellant was directed to hand-over the vacant possession of eastern shop along with Kotha to the landlord on or before 31.12.1988. It was also held that the suit (the present suit) filed by the plaintiff-respondent for fixation of standard rent and eviction shall stand dismissed automatically in view of this decision. Review application filed by the plaintiff- respondent with regard to automatic dismissal of the present suit was allowed by this Court vide order dated 14.11.1990 and civil appeal No. 7319/1995 preferred by the appellant-tenant Sh. Girraj Prasad against this review order was dismissed by the Hon'ble Supreme Court on 29.8.1996.
11. In view of these facts learned counsel for the appellant contended that on account of no objection by the plaintiff- respondent, the First Appellate Court impleaded Sh. Girraj Prasad as the legal representative of the deceased tenant Sh. Kesar Lal. The plaintiff-respondent did not challenge the fact of impleading the present appellant as legal representative of Kesar Lal. As stated above this second appeal was decided treating the present appellant as tenant giving a decree of partial eviction. This matter went up to the Hon'ble Supreme Court but the plaintiff- respondent did not raise any grievance against this finding that Sh. Girraj Prasad is the tenant as defined under Section 3 (vii) (b) of the Act. Shri Mandhana learned counsel for the appellant also referred the copy of the registered sale deed dated 10.7.1977. Vide this registered sale deed the plaintiff- respondent Rishikesh purchased this shop which is now subject matter of dispute from the original plaintiff-landlord Sh. jamnadas. At page 4 of this registered sale deed it is admitted that late Sh. Kesar Lal was the tenant in suit premises and after his death, his son Girraj Prasad is now the tenant. It is also mentioned in this sale-deed that Sh. Girraj Prasad is the tenant in the shop No. 1131/5 at monthly rent of Rs. 50/-. Thus, according to learned counsel for the appellant it is an admission on the part of the plaintiff that Sh. Girraj Prasad became the tenant after the death of his father Sh. Kesar Lal.
12. Om the other hand, it was submitted by learned counsel for the respondents that as per written statement it was admitted that Kesar Lal is the tenant and it is a concurrent finding of fact given by two courts below in the present suit that Sh. Girraj Prasad is not the tenant as son of the original tenant Sh. Kesar Lal. Reliance has been placed upon Mange Ram (Dead) through Lrs. v. Chhuttan Lal (Dead) through Lrs., 1999 (2) R.C.R. 426, wherein it was held that where the son of the tenant is running business exclusively and the plea of joint tenancy is not proved, it amount to sub-letting. In Nihalchand v. Noratmal, RLW 1965 page 197 it was held that when lessee starts partnership business and makes a firm liable for payment of rent, it amounts to sub-letting. Similar view was taken in Ishtiaq Hussain and Ors. v. Smt. Krishna Devi, 1978 (2) R.C.R. 179. In Bal Kishan v. Om Prakash and Anr., AIR 1986 Supreme Court 1952, it was held that sub-letting by a tenant without written consent of the landlord amounts to sub-tenancy and thus the order of eviction of legal representative of the tenant and sub-tenant was proper. In Shalimar Tar Products Ltd. v. H.C. Sharma and Ors., A.I.R. 1988 Supreme Court 145 it was held that in a case of sub-letting parting of legal possession by lessee is essential. Similar view was taken in Bharat Sales Ltd. v. Life Insurance Corporation of India, (1988) 3 Supreme Court Cases 1. In Mohammedkasam Haji Gulambhai v. Bakerali Fatehali (D) by LRs,1988 (2) All India Rent Control Journal 305 the Hon'ble Supreme Court held that when the tenant converted his business into the partnership with his sons and subsequently the tenant retired and his sons were doing business, it amounts to sub-letting.
13. I have considered the rival submissions. The judgments relied upon by learned counsel for the respondents are not applicable in the instant case. As stated hereinabove, it was held in first appeal vide judgment dated 13.11.1987 that the appellant No. 1/1 Girraj Prasad is the tenant as son of the original tenant Sh. Kesar Lal and this finding was based upon the admission of the plaintiff-landlord himself and that admission was recorded in the order-sheet dated 30.3.1981. This finding was never challenged by the plaintiff-landlord. In second appeal against this judgment, this Court vide judgment dated 30.4.1988 passed a decree of partial eviction treating the appellant Sh. Girraj Prasad as the tenant. Sh. Girraj Prasad has been admitted as a tenant in the sale-deed also as mentioned above. In view of the entire discussion made hereinabove both the courts below committed illegality in treating the appellant Sh. Girraj Prasad as a sub-tenant of late Sh. Kesar Lal. The question No. 1, thus is accordingly decided in favour of the defendant-appellant.
14. Question No. 2:-The defendant filed an application which is Ex.4 under Section 13-A of the Action the first suit. That application was decided on 31.10.1975 vide order Ex.3. The Trial Court on the basis of the above facts held that since the defendant got the benefit of first default, ground of default no more existed, hence the deposit of rent, thereafter by the defendant in the court during the pendency of the first suit was not a valid deposit and thus the defendant committed second default and is liable to eviction. These findings were affirmed in the first appeal.
15. Learned counsel for the appellant contended that entire rent for the period from November, 1975 to August, 1976 was deposited by the defendant-tenant in the Trial Court during pendency of first suit under the order of the Trial Court passed under Section 13 (3) of the Act, therefore no question of second default ever arose. It was next submitted that the first suit for eviction was pending at the time when the present suit was filed and the defendant was given the benefit of first default only vide judgment dated 10.10.1979 in first suit and not prior to that, hence question of second default never arose; that the point of second default was never put forward by the plaintiff- respondent in second appeal which was decided by this Court on 30.4.1988; that the appellant complied with the order of the Trial Court dated 31.10.1975 on 25.11.1975 but the Trial Court did not record any finding that the benefit of the first default has been given to the defendant; that the benefit of first default at the most can be said to be given upon judgment dated 10.10.1979 and no default in payment of rent was committed. He placed reliance upon Yogendra Sharma v. Narain Das and Ors., R.L.R. 1988 (1) page 286 wherein it was held that when the suit for eviction is filed on the sole ground of default in payment of rent and the tenant deposits the rent as determined by the court under Section 13 (3) of the Act, there remains nothing to be done and the court has to dispose of the suit finally at that stage. In the second category of cases where there are other matters in dispute between the parties which do not come to an end upon determination and payment of rent under Section 13 (3) of the Act, it is necessary for the tenant to continue to deposit the rent month by moth as provided by second part of Section 13 (4) of the Act. In Shiv Dutt Jadiya v. Ganga Devi, A.I.R. 2002 Supreme Court 1163 the Hon'ble Supreme Court dealing with the provisions of the Act held that during pendency of the suit the tenant has to deposit the monthly rent under Section 13 (4) of the Act. After granting the benefit of the first default the suit was dismissed. It was held that during the pendency of the appeal also the tenant has to deposit the rent in court month by month as contemplated under Section 13 (4) of the Act as the appeal is a continuation of the suit. It was held that second suit for recovery of rent falling due during pendency of appeal which was subsequently withdrawn is not tenable and the tenant is not required to pay same rent twice.
16. Per contra, Mr. Ranjan learned counsel appearing for the respondent contended that the defendant vide application under Section 13-A of the Act obtained the benefit of first default on 31.10.1975 and the ground of default was no more into existence thereafter, hence deposit of rent in the court in the first suit was not valid deposit as the same was deposited without making compliance of Section 19-A of the Act. It was also contended that there was no order of the Trial Court in the first suit to deposit the rent month by month. He placed reliance upon following judgments. In Kuldeep Singh v. Ganpat Lal and Anr., A.I.R. 1996 Supreme Court 729 it was held that deposit of the rent in the court under Section 19-A of the Act without satisfying the conditions therein is not valid deposit and the tenant is not entitled to protection from eviction. Similar view was taken by this Court in Legal Representative of Fakir Mohd. v. Sita Ram, R.L.W. 1999 (2) Raj. 1115 Stephen D'silva v. Jaipur Chalchitra Pvt. Ltd., W.L.C. (Raj.) 1993 (3) page 545 and Bajrang Lal and Ors. v. Ram Deo and Ors., R.C.R. 1988 (2) 229. It was also contended that Section 13-Aof the Act is not subject to Section 13 (3), (4), (5) and (6) of the Act. He placed reliance upon Bhanwar Lal v. Smt. Chandra Kanta, RLW 1970 page 464 wherein it was held that Section 13-A is not subject to Section 13 (4) of the Act. The provisions under Section 13 (4) cannot be applied to a case governed by Section 13-A. Similar view was taken by this Court in Carona Sahu Co. Ltd. v. Vinod Kumar Goyal, R.L.W. 1978 page 419. Taking the similar view it was held by this Court in Batliboi and Company Pvt. Ltd. v. Govind Narain, R.L.W. 1981 page 225 that where the tenant had taken the benefit of first default in previous suit, the tenant is liable to eviction on ground of second default. Similar view was taken in Sobharaj v. Bhanwar Lal, R.L.R. 1974 page 251. He also placed reliance upon Siya Sadan v. Sagar Mal and Ors., W.L.N. 1982 page 118. In para 24 of this judgment it was held that on account of the application of Section 13A of the Act, the effect of Sub-clause 13 (1) (a) disappears and which in the eye of law becomes non-existent for all intents and purposes. It was further held that Sub-clauses (3), (4), (5) and (6) of Section 13 of the Act ceased to apply in a composite suit which was based also on the ground of default along with other grounds. In para 27 of this judgment it was held that the moment the tenant complied with the order of Section 13-A (b) of the Act, the ground of default disappeared and alongwith it all these corollaries and subsidiaries in the form of Sub-clauses (3), (4), (5) and (6) the liabilities arising from them disappeared for all intents and purposes.
17. I have given my thoughtful considerations to the rival submissions. At the cost of the repetition, it is stated that the first suit for eviction was filed in the year 1968 on account of non-payment of rent and reasonable and bonafide requirement of the plaintiff. Thus, it was a composite suit based on two grounds. It was admitted by learned counsel for the parties that Sub-section (3) of Section 13 as well as Section 13-A of the Act were introduced by way of Ordinance on 29.9.1975. Section 13(3) of the Act provides that in suit for eviction on the ground of non-payment of rent with or without any of the other grounds, the court on the first date of hearing shall provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Sub-section (4) of Section 13 of the Act provides that the tenant shall deposit in court or pay to the landlord the amount so determined the court in Sub-section (3) and the tenant shall also continue to deposit in court or pay to the landlord month by month the monthly rent subsequent to the period to which determination has been made. Sub-section (5) provides that if a tenant fails to deposit or pay any amount referred to in Sub-section (4), the court shall order the defence against eviction to be struck out and Sub-section (6) provides that if a tenant makes deposit or payment as required by Sub- section (4) no decree of eviction on the ground of non-payment of rent shall be passed. There is a proviso to Sub-section (6) which provides that a tenant shall not be entitled to any relief under this Sub-section, if having obtained such benefit or benefits under Section 13-A in respect of any such accommodation, if he again makes a default in the payment of rent for six months, it is necessary to reproduce the relevant provisions of Section 13-A of the Act:-
'(a) no court shall, if any proceeding pending on the date of commencement of the [amending ordinance] pass any decree in favour of a landlord for eviction of a tenant on the ground of non-payment of rent, if the tenant applies under Clause (b) and pays to the landlord, or deposits in court, within such time such aggregate of the amount or rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause;
(b) in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of the commencement of the [amending ordinance] notwithstanding any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at 6% per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court; and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if tenant had not committed any default.
18. As stated hereinabove, these provisions came into force w.e.f. 29.9.1975. The defendant-appellant made an application on 24.10.1975 under Section 13-A of the Act. This application was decided by the Trial Court on 31.10.1975. This order was complied with by the defendant-tenant as per order-sheet dated 25.11.1975. A bare perusal of the provisions of Clause (b) of Section 13-A of the Act makes it clear that on such payment being made within the time fixed by the court, the proceeding shall be disposed of as if tenant had not committed any default. This Court in Siya Das's case (supra), clearly held in para 24 that on account of application of Section 13-A, the effect of Sub-clause 13 (i) (a) disappears and becomes non-existent in the eye of law and in that case Sub-clause (3), (4), (5) and (6) of Section 13 of the Act ceased to apply even in such a composite suit based on the ground of default with other grounds. It has been clearly held in para 27 of this judgment that the moment the tenant complied with the order of Section 13-A (b), the ground of default disappeared. In view of this judgment the submission made by learned counsel Mr. Ranjan has to be accepted that the benefit of the first default was given to the defendant-tenant on application under Section 13-A of the Act and the ground of default in payment of rent disappeared. In other words, the ground of default in payment of rent became non-existent in the eye of law on disposal of the application of the defendant filed under Section 13-A of the Act. In view of the discussion made hereinabove, both the judgments relied upon by learned counsel for the appellant have no application in the instant case and thus the two courts below rightly held that deposit in the court during pendency of the first suit or under Section 19-A of the Act without complying with none of the conditions prescribed by Section 19-A of the Act is not a valid deposit. The submission made by learned counsel for the appellant that the defendant deposited the rent month by month in the court in accordance with the order dated 21.5.1969 cannot be accepted as there was no such order. The Court did not make any order asking the defendant to deposit the monthly rent in the court. This, this question is decided against the appellant. Concurrent finding of the two courts below on this issue is upheld.
19. Consequently, this second appeal is hereby dismissed. No order as to costs.