ORDER
SHARMA, J.
(1). The suit instituted by the plaintiff respondent for eviction in regard to tenanted premises against the defendant appellant was based on the ground of default enumerated under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 (for short the Rent Act). The defendant appellant submitted written statement denying the allegations. After plaintiff respondent filed a rejoinder, the learned trial court formulated as many as six issues out of which issue No.3 was as follows-
'Whether the defendant committed default in making payment of rent?
(2). Burden to prove this issue was laid on the defendant appellant. Learned trial court determined the rent under section 13(3) of the Rent Act. Thereafter vide order dated December 10, 1980 struck out the defence against eviction of the defendant under Section 13(5) of the Rent Act holding that the defendant did not deposit the rent for the month of November and December 1978 in time. The plaintiff respondent did not at all adduce the evidence. The defendant himself appeared in the witness Box as DW.1. Learned trial court vide decree and judgment dated February 16, 1990 decided all the issues against the defendant and decreed the suit of the plaintiff. After unsuccessful first appeal, the defendant has preferred the instant second appeal.
(3). The instant appeal stood admitted in respect of substantial questions of law Nos. 1 and 2 framed by the appellant in the memo of appeal. First question relates to the determination of rent under Section 13(3) of the Rent Act and the second to the interpretation of section 13(5) vis-a-vis law subsequently expounded by the binding decisions of this court and the Apex Court. But looking to the fact that the learned trial court laid burden to prove issue No. 3 on the defendant tenant and the plaintiff did not examine even a single witness, I am satisfied that the substantial questions of law that go into the root of the matter are as follows:
(i) Whether the trial court had rightly placed the burden on the defendant tenant to above that he had not committed default in making payment of rent?
(ii) Was it not incumbent on the plaintiff land lord to lead any evidence in respect of ground of default which he incorporated in the plaint?
(iii) What is the effect of the order of striking out the defence against eviction under section 13(5) of the Rent Act? Whether the plaintiff landlord is exonerated from proving the facts averred in the plaint, after the order of striking out the defence against eviction is passed?
(4). Although aforequoted questions were not formulated at the time of admission of the appeal but in view of the power provided under the proviso appended to sub-section (5) of section 100 CPC., I have heard the rival submissions in regard to these questions also.
(5). The question of onus probandi is a question of law. Wrong placement of onus of proof when brings about a miscarriage of justice can be interfered with in second appeal. Madras High Court in Nataraja Deekshidar vs. Aiyathural Padayachi (1), indicated that when onus is wrongly placed, it is a question of law and assailable in second appeal. This court in Murlidhar vs. Mukund Ram (2), also held that if burden is wrongly placed, it is a question of law and can be interfered with in second appeal.
(6). The facts giving rise to the appeal, as found by the courts below may be summarised thus:
(7). On April 1, 1978 the plaintiff instituted a civil suit against the defendant in the trial court seeking decree for eviction and arrears of rent. It was averred in the plaintthat the defendant came into occupation of the suit premises as a monthly tenant, agreeing to pay monthly rent of Rs. 138A. The defendant failed to pay rent from the month of April 1977 and became defaulter making him self liable to be evicted from the suit premises. The plaintiff prayed for the eviction of the defendant, arrears of rent in the sum of Rs. 1380/- for me month of April 1977 to January 1978 and Rs. 276/-towards use and occupation charges and the costs of the suit. The defendant in the written statement denied the allegations of his being defaulter and pleaded that the plaintiff with an ulterior motive enhanced the monthly rent and purposefully refused to accept the rent while tendered by the defendant. The defendant desired the determination of provisional rent under section 13(3) of the Rent Act. Learned trial court determined the provisional rent vide its order dated November 17, 1978 and the defendant was directed to deposit Rs. 2738=90 i.e. rent from April 1, 1977 to October 31, 1978 including interest. Defendant was further required to pay to the plaintiff the monthly rent subsequent to the period upto which the determination was made. On the prayer of the defendant the trial court vide its order dated December 1, 1978 extended lime to deposit the provisional rent up to February 2, 1979 and the defendant within the extended lime i.e. on January 30, 1979 deposited Rs. 3153=91 i.e. the determined provisional rent including the rent for the months of November and December 1978 and January 1979. Thereafter the plaintiff on March 26, 1980 moved an application under Section 13(5) of the Rent Act for striking out defence against eviction of the defendant on the allegations that the defendant delayed the payment of rent for the months of November and December 1978. The defendant in his reply asserted that the rent for the month of November and December was deposited alongwith the determined provisional rent bonafidely and delay in depositing the same was bonafide and the same may be condoned. But the learned trial court vide its order dated December 10, 1980 struck off the defence against eviction of the defendant holding that it had no power to condone the delay. The defendant preferred appeal and revision against the said order but did not get success. This court vide order dated May 20, 1983 dismissed the revision preferred by the defendant. Thereafter Special Leave Petition (Civil) No. 11738/1983 submitted before the Hon'ble Supreme Court was dismissed as withdrawn on January 27, 1986.
(8). From the pleadings of the parties following issues were framed by the trial court:
(1) Whether the period of eleven months written in the Rent deed was incorporated with a view to keep Rent deed unregistered and to save stamp duty?
-Defendant
(2) Whether the defendant put his signatures on the Rent Deed, just to observe the formality?
-Defendant
(3) Whether the defendant committed default in making payment of rent?
-Defendant
(4) Whether the plaintiff had served a valid notice on the defendant for terminating the tenancy?
-Plaintiff
(5) Relief.
Additional issue 4A was added on February 9, 1982 as under-
(4A) Whether the defendant had deposited Rs. 260A against the rent?
-Defendant
(9). As already stated no evidence at all was adduced by the plaintiff whereas the defendant examined himself but as his defence against eviction was struck out, the trial court decided all the issues against him and the appellate court also affirmed ;he findings arrived at the trial court.
(10). The first question that arises for consideration is, whether the trial court had rightly placed the burden on the defendant to prove that he had not committed default in making payment of rent?
(11). Section 101 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The Delhi High Court in Chandu Kishore Sharma vs. Kampawati (3), indicated that the initial burden to prove the ground of eviction is on the land lord, and not on the tenant. The tenant can not be asked to prove the negative. In Durairaj vs. Ratnabai (4), it was held that in a case of eviction for wilful default, the burden lies heavily on the landlord to prove the circumstances which would justify the inference that not merely had a default occurred but that default was wilful. This court in Murti Dhar vs. Mukand Ram (supra), observed thus:
(Para 12)
'....I have taken into consideration the fact that no evidence was led before the trial court about the factum of default. Even the framing of issues regarding default was wholly erroneous, because, the ' learned trial court had placed the burden on the tenant to prove that he had not committed default. This approach of the learned trial court was wholly erroneous. In fact, it was the land lord to have established that the tenant had committed default in payment of rent for more than six months.'
(12). After having closely scrutinised the pleadings of the parties I am satisfied that the learned trial court had wrongly placed the burden on the defendant to prove that he had not committed default in payment of rent. According to section 13(1)(a) of the Rent Act a tenant is defaulter only when he has neither paid nor tendered the amount of rent due from him for six months and the land lord is required to establish by producing his evidence in proof of his averment that the tenant is defaulter. The burden is on the land lord to prove that the tenant had neither paid nor tendered the amount of rent due from him for six months and it cannot be placed on the defendants.
(13). That takes me to second and third questions-
Was it not incumbent on the plaintiff land lord to lead any evidence in respect of ground of default which he incorporated in the plaint? And
what is the effect of the order of stricking out the defence against eviction under Section 13(5) of the Rent Act? Whether the plaintiff land lord is exonerated from proving the facts averred in the plaint, after the order of striking out the defence against eviction is passed?
(14). Section 13(5) of the Rent Act makes it abundantly clear that if a tenant fails to deposit or pay rent month by month as envisaged by Section 13(4), the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit. This clearly means that the court would not allow the defendant to take/the benefit of any of the provisions contained in the Act against eviction, though it will be open to him to take other defences, outside the purview of the Rent Act.
(15). In Mohan Lal vs. Lakhe Khan (5), this court in para 16 indicated as under-
'.....I am unable to appreciate the position that if the tenant's defence is struck out against eviction, the allegations of the plaintiff will be assumed to be true and he will be entitled to a decree without proof of the conditions laid down in clause (a) to sub-section (1). The defendant is not definitely reduced to a position worse than that when the case proceeds exparte. The plaintiff can only succeed in view of the mandate contained in section 13(1) when he satisfies the court that the tenant has made himself liable for one of the reasons mentioned in that section.'
(16). Their Lordships of the Supreme Court in M/s. Paradise Industrial Corporation vs. M/s. Klin Plastic Products (6), propounded that even if the defence is struck off, the party is entitled to appear, cross examine the witnesses and submit that on the basis of material decree cannot be passed against him.
(17). The words 'shall proceed with the hearing of the suit' of section 13(5) of the Rent Act connotes clearly that the eviction order will not automatically follow the order of striking off the defence and the court shall proceed to hear the suit so as to reach the conclusion that whether the grounds of section 13(1) stand proved or not. Evidently the landlord is required to prove his case by evidence. Their Lordships of the Supreme Court in DCG & M vs. Hem Chand (7), indicated that the landlord has to prove his case by fulfilling the conditions of section 14(1) of Delhi Act, that the tenant defaulted in payment of rent.
(18), This Court (Hon'ble S.C. Agrawal J. as her then was) in Kalyan Mal vs. Shakuntla Devi (8), held thus: (para 6)
'In case the trial court decides to strike out the defence of the defendant under section 13(5) of the Act the court may proceed with the adjudication of the suit and while doing so examine whether the plaintiff has succeeded in establishing her case that the defendant has committed default in payment of rent for a period of six months.'
(19). In view of discussions indicated hereinabove I am of the considered opinion that it was incumbent upon the plaintiff landlord to lead the evidence that the defendant tenant had neither paid nor tendered the amount of rent due from him from six months and he was a defaulter in view of section 13(1)(a) of the Rent Act. Even if the defence of the defendant had been struck out, it was necessary for the plaintiff to establish his case by adducing evidence that the defendant was a defaulter.
(20). Both the courts below decreed the suit of the plaintiff by holding that burden to prove the issue that the defendant had not committed default was on the defendant and as his defence against eviction was struck out, he was liable to be evicted from the suit premises. A close look at the impugned findings demonstrates that neither the trial court nor the first appellate court have recorded a finding that the defendant had committed default in payment of rent for a period of six months as required under section 13(1)(a) of the Rent Act. The bare averments of the plaint were assumed to be true by the courts below without proof of conditions laid down in section 13(1)(a) of the Rent Act. Under these circumstances the judgment and decree of both the courts below can not be upheld and must be set aside.
(21). In the result the appeal succeeds and is hereby allowed and the judgment and decree dated October 6, 1993 passed by the Additional District Judge No.5 Jaipur City in Civil Regular Appeal No. 181/90 and dated February 16, 1990 passed by the Additional Civil Judge No. 6 Jaipur City in Civil Suit No. 157/88 are set aside. No order as to costs.