Judgment:
ORDER
K.S. Lodha, J.
1. This is a defendant's revision against the order of the learned Addl. District Judge, Rajsamand dated 5-7-86 dismissing his appeal against the order of the learned Munsif and Judicial Magistrate, Nathdwara dated 12-7-85 by which his defence had been struck off.
2. The plaintiff Shobha Lal had filed a suit against Padam Singh for ejectment, inter alia, on the ground of default in payment of rent. The defendant contested the suit and on 5-7-79, the trial court determined the amount of arrears of rent etc. under Section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act (hereinafter referred to as 'the Act') saying that the defendant had to deposit the arrears of rent amounting to Rs. 2425/- within one month from the date of the order. It further observed that this rent had been determined up to 11-7-79. It appears that the tenant deposited the amount in time and also went on depositing the monthly ren t at the rate of Rs. 50/- per month for some time. However, he committed default in payment of the monthly rent of the succeeding months whereupon his defence was struck off vide order dated 14-5-81. Aggrieved of this, the defendant went u p in appeal and the learned Addl. District Judge, Rajsamand by his order dated 12-7-84 found that the determination of provisional rent under Section 13(3) of the Act by the order dated 5-7-79 was not in accordance with law as the necessary details of the period from which the amount was calculated the amount of monthly rent and the amount of interest etc. had not been specified in the order and, therefore, that order was bad in law and on the basis of such an order, the defendant could not be expected to deposit the monthly rent properly and if he committed any default in these circumstances, his defence could not be struck off. He remanded the matter to the trial court with a direction that it should determine the provisional rent under Section 13(3) of the Act and thereafter give an opportunity to the parties to show how the rent was deposited and how any default had been committed. In pursuance of this order when the matter came back to the trial court, the trial court instead of redetermining the provisional rent, merely explained vide its order dated 22-2-85 that he had determinedthe provisional rent at the rate of Rs. 50/- per month. Thereafter by a separate order dated 12-7-85, he found that the tenant had committed default in depositing the monthly rent by the 15th of every succeeding month and, therefore, the defence of the defendant is struck out. Aggrieved of this order dated 12-7-85, the tenant went up in appeal before the learned Addl. District Judge, Rajsamand. The learned Addl. District Judge upheld the decision of the trial court and dismissed the appeal by his order dated 5-7-86. The tenant has therefore, come up in revision.
3. I have heard the learned counsel for the parties and have also perused the relevant order sheets and the earlier, decisions certified copies of which have been made available to me by the learned counsel for the petitioner.
4. The contention of the learned counsel for the petitioner is that when by the order dated 12-7-84 the learned Addl. District Judge had directed the trial court to properly determine the amount of rent etc. payable by the tenant under Section 13(3) of the Act, the trial court could not have merely stated that the earlier amount determined on 5-7-79 was at the rate of Rs. 50/- per month of rent. It should have clearly redetermined the amount by stating the rate, the date from which the amount was calculated and the amount of interest etc. and after the court had properly determined the provisional rent under Section 13(3) in accordance with the direction of the appellate court then only the defendant could have been expected to have deposited that amount and thereafter to go on depositing the monthly rental the determined rate month by month by the 15th of every succeeding month. He urges that when the provisional rent itself had not been properly determined by the trial court in accordance with the directions of the appellate court, the tenant was not under any obligation to deposit the amount of the rent or in any case the monthly rent month by month. In these circumstances if the tenant had not deposited the monthly rent prior to the proper determination of the provisional rent under Section 13(3) his defence could not have been struck off.
5. On the other hand, the learned counsel for the non-petitioner urged that as a matterof fact the order passed by the learned Addl. District Judge, Rajsamand on 12-7-84 was improper and there was no question of any fresh determination of the provisional rent under Section 13(3) of the Act, inasmuch as the tenant himself had admitted in the written statement that the rent last paid was at the rate of Rs. 50/- per month and it was on that basis that the amount had been determined by the trial court on 5-7-79. Not only this, the tenant had deposited the amount in accordance with the order dated 5-7-79 and had also thereafter deposited the monthly rent at the rate of Rs. 50/- per month in time for some months. It was, therefore, too late for him to have made a grouse before the appellate court that the order dated 5-7-79 was nota proper order and, therefore, even if he had committed any default in payment of monthly rent, his defence could not have been struck off. He, therefore, urges that if the order dated 12-7-84 is ignored, the defence of the petitioner had rightly been struck off, and, therefore, this Court should not interfere with the orders of the courts below.
6. I have given my careful consideration to the rival contentions. In my opinion, in view of the order passed by the first appellate court on 12-7-84, the trial court was bound to redetermine the provisional rent under Section 13(3) and only after the re determination of the rent, the tenant could have been expected to have deposited the rent determined under Section 13(3) of the Act and to further go on depositing the monthly rent month by month by the 15th of every succeeding month. The liability to deposit the monthly rent does not arise until the provisional rent is determined by the court under Section 13(3). The learned Addl. District Judge by his order dated 12-7-84 had clearly held that the order dated 5-7-79 determining the provisional rent passed by the trial court was wrong and not in accordance with the provisions of Section 13(3) and, therefore, it had remanded the matter and directed the trial court to redetermine the same. The trial court could not have ignored this order and it was wrong when it merely explained vide its order dated 22-2-85 that the rent determined on 5-7-79 was at the rate of Rs. 50A.
7. The question is whether at this stagethe learned counsel for the non-petitioner can be allowed to challenge the order dated 12-7-84 passed by the learned Addl. District Judge remanding the matter to the trial court. It is urged by the learned counsel for the non-petitioner that under Section 105, Civil P. C. this course is open to him, as according to him, where an appeal is preferred against a final order or a decree, any error, defect or irregularity in any order made by the court during the course of the proceedings, may be challenged in such an appeal if that order affects the decision of the case. He further urged that the appellate court had remanded the matter vide its order dated 12-7-84 and no appeal lay against such an order of remand and, therefore, Sub-section (2) of Section 105 does not debar him from challenging that order in this appeal. I am, however, unable to accept this contention. Section 105 deals with the situation where the appeal is filed against the final decree. In the present case, the order challenged is not a final order or decree in the suit. It also is only an interlocutory order The earlier order passed by the learned Addl. District Judge was in an appeal under Section 22 of the Act, as in in the present appeal and, therefore, it cannot be said that the order of remand made by the learned Addl. District Judge on 12-7-84 was in the course of the proceedings only and the present revision is against the final decree passed in the suit. Again, Section 105 applies to an appeal against the final decree. It cannot apply to a revision. The respondent could have challenged the order dated 12-7-84 even then by filing a revision. If he did not do so, now he cannot be allowed to challenge it in this revision filed by the opposite party. In these circumstances the provisions of Section 105, Civil P. C. are not at all attracted. The order dated 12-7-84, therefore, cannot be challenged by the non-petitioner in this revision.
8. As already stated above by order dated 12-7-84 the trial court was to redetermine the provisional rent and thereafter alone the liability to deposit the amount of the provisional rent and the further liability to deposit the monthly rent month by month by the 15th of every succeeding month would have arisen. As the provisional rent had not yet been determined by the trial court in accordance with the order of the appellatecourt dated 12-7-84, the question of default does not arise and the defence of the petitioner could not have been struck off.
9. The revision is, therefore, allowed and the orders of the two courts below striking out the defence of the petitioner are set aside. The trial court will now comply with the order of the appellate court dated 12-7-84 and thereafter try to dispose of the suit as early as possible without any avoidable delay. In the circumstances of the case I shall leave the parties to bear their own costs. The parties are directed to appear before the learned Munsif, Nathdwara on 25-9-86, if no earlier date had already been fixed by the trial court.