N.P. Gupta, J.
1. The appellants, by this appeal, seek to challenge the judgment and decree passed by the learned lower Appellant Court decreeing the plaintiff's suit for eviction, and thereby setting aside the judgment of the learned trial Court.
2. The plaintiff had filed the suit for eviction on two grounds viz. default in payment of rent for the period 1.8.1987 to 30.6.1988 i.e. 11 months, and the second being the defendant having caused substantial damage to the properly. According to the defendant, the plaintiff is originally resident of Bhinasar, and lives in Calcutta, and that he had refused to remit the rent by money order, and therefore, as and when the plaintiff used to come, he receives the rent, and it is in this process that at the time of filing of suit, the amount for this period was due. Thus, the appellant has not committed any default. The allegation of causing substantial damage was also denied. In trial the plaintiff did not appear in the witness box, and examined p.w. 1 power of attorney Shri Ram Narayan, while the defendant had examined himself, and also one witness Shri Panwan Kumar. Some documents were also produced on record including receipts of rent, original receipt book, copy of the pass book of the plaintiff's bank account etc. The learned Trial Court found that in view of the judgment of this Court in Ram Prasad v. Harinarayan (1988 (Raj.) 185), the power of attorney can appear only as a witness, and not as a litigant. Then, While deciding issue No. 1 relating to plaintiff's entitlement to arrears of rent amounting to Rs. 1485/-, it was found that in para 4 of the written statement, the defendant has admitted that rent is outstanding since 1.8.1987 which he is ready to pay. However, vide order dt. 15.10.91 provisional determination of rent was made which with the consent of the parties included the rent from 1.8.87. It was also found that consequent upon determination, the defendant has paid the entire rent, nothing is outstanding. Deciding issue No. 2 relating to default, it was found that the tenancy was oral, and there is nothing to prove that it was the plaintiff's responsibility to collect the rent, and admittedly the defendant has not paid the rent after 31.7.87, and then excluding the evidence of power of attorney as plaintiff, but reading his statement as statement of witness, considering the admission of the defendant made in the written statement it was found the defendant has committed default, but then he was given benefit of Section 13(6) of the Rajasthan Premises (Control of Rent and Eviction) Act, in short the Act. Issue No. 3 was decided against the plaintiff, and in the and vide judgment dt. 23.9.98 the suit was dismissed. In plaintiff's appeal it was contended that the defendant had not complied with the requirement of Section 13(4), and therefore, he was not entitled to benefit under Section 13(6) of the Act. On the other hand, it was contended by the appellant before the learned lower Appellant Court that the defendant has rightly been given benefit of Section 13(6) of the Act, the plaintiff has not produced any statement to show that monthly rent was deposited in time rather the rent was deposited within the extended period. Controverting this, it was contended by the plaintiff that the receipts of rent are already there on record. Learned lower Appellant Court found that on 15.7.98 an application was filed by the plaintiff under Order 13 Rule 2 for producing the copy of the bank statement to show that subsequent monthly rent has not been deposited in time, the defendant also, on 14.8.1998 filed an application accompanied with the statement of rent deposited by him. The learned lower Appellant Court found that from this statement it s clear that rent for the period March, 1994 was not deposited before 15.4.94, but was deposited on 9.5.94. On 9.5.94, rent for three months was deposited which included rent for March, 1994, and in the application dt. 14.8.1998 the defendant had claimed that the delay in depositing rent be condoned. It was noticed that there is nothing on record to show that this application was ever decided rather of course vide order-sheet dt. 26.8.1998 the documents produced by the parties were taken on record. Thus, it was found that there is nothing to show that the delay in depositing the rent was condoned, while according to the judgment of Hon'ble the Supreme Court in Nasiruddin v. Sitaram (2003 DNJ (SC) 180 : RLW 2003(2) SC 315), the provisions of Section 5 Limitation Act are not applicable to the requirements of Section 13(3) and 13(4) of the Act. Thus, it was found that the learned Trial Court was in error in giving benefit of Section 13(6) the defendant. The finding of the learned Trial Court on issue No. 3 regarding defendant's causing substantial damage to the property was, however , upheld. In the result, in view of the defendant having not been found entitled to the benefit of Section 13(6), the suit was decreed.
3. Assailing the impugned decree, it is contended by the learned Counsel for the appellant on the authority of Chetan Das v. Annusuiya (1995(2) RLW 397), Dhan Raj v. Brijesh Kumar (2003(1) WLC (Raj.) 528), that since the plaintiff has withdrawn the amount deposited late, it attracts waiver against plaintiff, and therefore, suit could not be decreed. The other submission made is on the authority of Hon'ble the Supreme Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. (2004 AIR SCW 7064), that the power of attorney could not depose in place of, and instead of plaintiff, and since the plaintiff has not appeared in the witness box in this case, there is absolutely no basis on record to substantiate issue No. 2, and therefore, also the impugned decree is liable to be set aside.
4. I have considered the submissions, and have gone through the record as requisitioned by this Court. Taking the second submission first, true it is that power of attorney could not depose in place, and instead of the plaintiff, but then as found by Hon'ble the Supreme Court in Janki Vashdeo Bhojwani's case that the power of attorney can depose facts which are within his personal knowledge. That apart, in the present case, since the suit is based only on the ground of default, and it is admitted position by the defendant, as admitted in written statement that as on the date of filing of the suit, rent for the period 1.8.1987 to 30.6.1988 was outstanding, and in arrears, therefore, this contention has no relevance on the controversy involved in the case.
5. Regarding the second contention, true it is that in the judgments cited by the learned Counsel for the appellant it has been held that by plaintiff's withdrawing the rent deposited by the tenant, waiver is attracted. But then, since the things are not simple, as sought to be pleaded instead in the two cases cited by the learned Counsel for the appellant, rent was deposited in the Court, and that was withdrawn by the plaintiff. As against this in the present case the plaintiff had clearly given out by written application in the Court, his account number wherein the defendant was required to deposit monthly rent. Obviously, if in the process of operating bank account by way of withdrawal, the plaintiff withdrew certain amount thereby itself cannot attribute knowledge to the plaintiff about the amount lying in his account having been deposited late. Waiver, is an voluntary relinquishment of a right known to exist. In that view of the matter, in my humble opinion, in absence of anything to show that at the time when the plaintiff effected withdrawal of certain amounts from the bank account, he was aware of the facts that amount he is withdrawing includes amount of rent not deposited within time, it cannot be said that it attracts any waiver.
6. The second facet of this matter is that even if, for the sake of argument, it is assumed, that the withdrawal of the amount attracts waiver, even then the question that arises next is as to the withdrawal constitutes waiver of what. The answer, I rightly find is the one given in the two judgments cited by the learned Counsel for the appellant being that it constitutes waiver of right of the plaintiff to have the defence of the tenant against eviction of the ground of default struck off. That being the position, even proceeding on the assumption that there was a waiver, and plaintiff is not entitled to ask the Court for striking out the defence against eviction on the ground of default, even then, in my view, the impugned decree cannot be set aside. It is suffice to note that it is not in dispute that as on the date of filing of the suit the rent for the period 1.8.1987 to 30.6.88 was outstanding, and in arrears. It is also not in dispute that the suit was based on default. It is also not in dispute that provisional determination of rent under Section 13(3) of the Act was made, and in view of the fact that rent for the month of March, 1994 was deposited on 9.5.1994, and in view of the judgment of Hon'ble the Supreme Court in Nasiruddin's case the delay to the extent caused, cannot be condoned as Section 5 of the Limitation Act is not applicable, with the obvious result that within the meaning of Section 13(6) of the Act, the tenant had made deposit or payment as required by Sub-section (4). May be that the additional consequences flowing from not making deposit or payment as required by Sub-section (4) as provided in Sub-section (5) i.e. striking out of the defence did not flow, and in view of the assumed waiver against the land lord, may be that this additional consequence cannot flow, but then that by itself does not entitle the tenant to the benefit of Section 13(6) of the Act, notwithstanding his having failed to make the deposit, or make the payment as required by Sub-section (4). Waiver, if at all attracted, is attracted only against the plaintiff's right to have the defence struck off. Consequently, he loses his right to have the defence struck out, but then it does not have the effect of attracting the fiction in favour of the tenant about his having made deposit, or payment as required by Sub-section (4). Question as to whether the tenant has made deposit, or payment as required by Sub-section (4) for the purpose of Sub-section (6) it is required to be considered independently, and as a fact, to strike out his defence. In the present case, as noticed above, in view of the fact that rent for the period March, 1994 was not deposited within the extended permissible time under Section 13(4), obviously it has to be concluded that the tenant has not wake deposit or payment as required by Sub-section (4). That being the position, benefit of Section 13(6) cannot be extended to the tenant except by doing violence to the language of the statute i.e. the tenant could be conferred benefit thereof notwithstanding having made payment or deposit as required by Section 13(4) simply because his defence has not been struck off, or cannot be struck off. this is not the situation contemplated by the bare language of Section 13(6). I had an occasion to consider some facets of this controversy in the case of Jagan Nath v. Heera Chand (2001(1) DNJ (Raj.) 431 : RLW 2001(4) Raj. 299), and in para-11, 12, and then after following various judgments of Hon'ble the Supreme Court, and of this Court, it was held in para 35, 36, 42 and 43 as under:
'35. I may elaborate that if the defence is struck out, as observed by Hon'ble the Supreme Court, the tenant suffers a punishment, 'a harsh extreme' namely that despite the fact that he may not have committed the default as claimed by the plaintiff, still on account of some lapse committed during pendency of the suit, which the Court might not find to be on account of sufficient cause, he is deprived pf an opportunity to prove that he did not commit default as claimed by the landlord. While if the defence is not struck out, all that would happen is that he will just get an opportunity to prove his version also about his having not committed the default. This may include various circumstances like, valid tender of rent prior to filing of the suit, sometimes even valid payment of rent to the landlord, sometimes on proper proof of receipt by the landlord by getting the document of receipt examined by the handwriting expert, sometimes by proving valid deposit of rent Under Section 19-A by requisitioning the record which otherwise may even have falsely been denied by the landlord and so on and so forth.
36. The question then arises is, and requires to be considered is on account of typical situation of advantages and disadvantages, created or assumed, under the scheme of the language of Section 13(5) and 13(6). Inasmuch as one situation confers extreme advantage to the landlord by imposing extreme penalty on the tenant, while the other situation (simply assumed without its genuine existence) the undue advantage to the tenant in the event of defence being not struck out. It is this dilemma which indirectly works in the mind of the Courts in deciding the question, as to whether the delay should be condoned or not, so also as to whether the defence should be struck off of not? Inasmuch as it is not course clear that in the event of defence being struck out, though the landlord with have to prove the tenant to have committed default, but then the tenant, will not have an opportunity to defend himself on this ground and will not be entitled to lead evidence. On the other hand it is assumed that in the event of defence being not struck out, even though the delay may not be condoned, the tenant will get the benefit of Section 13(6) of the Act, and the landlord will not get decree on the ground of default.
42. In this regard I may recall the provisions of Section 13(6) once again which clearly provides 'if a tenant makes deposit or payment as required by Sub-section (4) no decree for eviction on the ground specified in Clause (a) of Sub-section (1) shall be passed by the Court against him.' Thus, a bare reading of this sub-section shows that for refusing a decree for eviction, the sine qua non is, that the tenant should have made deposit or payment as required by Sub-section (4). A combined reading of Sub-section (5) and (6) thus makes it clear that compliance of Sub-section (4) does give an advantage to the tenant under Sub-section (6), while non-compliance thereof entails two consequences, (i) being punitive, of his defence to be liable to be struck out and thereby depriving him of any right to lead evidence on the ground of default; (ii) being of taking away this additional benefit bestowed upon him by Sub-Section (6). The anxiety of the various decisions referred to above is to relieve the tenant of the 'harsh extreme' and 'punitive consequences' so as not to take away his valuable right to defend the suit. The only consequence of such eventuality in my view is that the tenant would be in a position of ordinary litigant being defending the suit on the ground of default in the same manner as he is defending it on the other ground. He would simply not get the additional advantage of seeking dismissal of the suit notwithstanding he is having committed default as pleaded in the plaint which advantage he would have had in the event of his complying with the provisions of Sub Section (4) of making deposit or payment as contemplated by Sub-section (6). In other words if the tenant fails to make out sufficient cause for the delay or default in making payments as required by Section 13(4), and the Court declines to condone the delay, and at the same time in its good judicial discretion does not finding the default to be willful or contumacious, and does not strike out the defence, the natural consequences that flow are that the defendant is entitled to lead his full evidence even on the ground of default, and prove that he has not committed any default. In which even if the defendant succeeds improving, the plaintiff will not get a decree on the ground of default, while if the defendant still fails to prove himself to have not committed the default, or rebut the plaintiff's evidence about his having committed default, then he is to suffer the decree for eviction despite being first defaulter, as simply the tenant does not get the additional benefit of Section 13(6). Thus in my view even in cases where the Court does not condone the delay and at the same time does not strike out the defence, then also the tenant very well gets relieved of the penal consequences, and the land lord also does not suffer any additional disadvantage attracted against him by Section 13(6).
43. My above view point would be clear from another illustration viz. suppose in a case after determination of rent Under Section. 13(3), the tenant either does not at all pay any rent, or wilfully and contumaciously regularly defaults in payment of subsequent monthly rent, still the landlord either may not chose to apply for striking out the defence, as in his estimation adopting this course may delay the disposal of the suit on account of time that may be consumed in disposal of Section 13(5) application, then appeal and then revision, and therefore, may continue to proceed with the trial, or in a given case that the landlord may stand advised even to expressly waive his right to get defence against eviction struck out, with the result that the defendant also leads his entire evidence, and likewise the tenant also does not even apply for extension of time and condonation of delay. The question then arises is as to whether in such circumstances would it not be open to the land lord to contend during the course of argument that the payments have not been made as required by Section 13(4), for the purpose of Section 13(6), and therefore, if the default is proved, the suit for eviction could be decreed on that ground, or even in that even since the defence is not struck out, notwithstanding not deposit of the amount and notwithstanding any request not being there for condonation of delay, the tenant will have to be bestowed with the benefit of Section 13(6)? In my humble opinion in such eventuality the precise answer has to be that the tenant will not be entitled to the benefit of Section 13(6), and in case the trial Court finds after appreciating the evidence of rival parties that the plaintiff has proved the ground of default Under Section. 13(1) (a), the decree for eviction even on the ground of default has to be passed.'
7. Of course, after my rendering the judgment in Jagan Nath's case, judgment of Hon'ble the Supreme Court in Nasiruddin's case came, with the result that discussions made by me in Jagan Nath's case on the anvil of Section 5 of the Limitation Act became irrelevant, but then I maintain the reasonings given by me about the consequences of non-striking out of the defence, even in cases where the defendant has not made deposit, of payment of the rent as required by Section 13(4) of the Act to the effect that to that extent the tenant will not be entitled to the benefit under Section 13(6) of the Act.
8. Thus, the first contention of the learned Counsel for the appellant also does not hold good, so as to successfully entitle the appellants to have the impugned decree set aside.
9. The appeal thus does not involve any substantial question of law. The same is, therefore, dismissed.