Judgment:
Navin Chandra Sharma, J.
1. This is plaintiff's second appeal against the dismissal of his Civil Suit No. 168/71 for ejectment of his tenant Laxmi Narayan by both the courts below.
2. I have heard the learned Counsel for the parties at length. Civil original suit Ni 168/1971 had been instituted by the appellant on 16th Dec. 1971 for ejectment of the respondent. Admittedly, when this suit was filed against the respondent, rent was not paid by the respondent to the appellant since Bhadwa Budi Ekam Smvt. 2022. It was alleged b the appellant that there was an amount of Rs. 80/- in arrears against the respondent o account of rent apart from Rs. 303/- as damages for use and occupation. The rate of rent c the demised shop was Rs. 5/- per month. The respondent had admitted in his written statement that rent was due against him since Miti Bhadwa Budi 1 SM Vt. 2022 but he pleaded that the appellant did not deliberately accept the rent which the respondent had tendere and even remitted by money-orders. The rent remitted by money-orders was refused by the appellant.
3. It is an admitted fact that the respondent had deposited an amount of Rs. 410/- on account of arrears of rent from Miti Bhadwa Budi 1 Smvt. 2022 at the rate of Rs. 5/- per month and Rs. 40/- as interest by deposit challan No. 605 dated 17.1.1972. This deposit was received by the Government Treasury on 18th Jan. 72. The first day of hearing in the suit was 24th Jan. 72. Thus, the deposit of the arrears of rent with interest amounting to Rs. 40/- had been made by the respondent in court before the first day of hearing in the suit. It appears that it was contended on behalf of the appellant before the trial court that the respondent had not deposited rent from 1.1.73 to 13.1.73 and 15.2.73 to 24.2.73 and further that he had deposited the monthly rent on some occasions after 15th day and as such there was noncompliance of Sub-section (4) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 as it stood prior to its amendment in the year 1976. In reply to this contention raised before the trial court, it was urged on behalf of the tenant that pending the suit, Sub-section (4) of Section 13 of the Act had undergone amendment by the amending Ordinance No. 26 of 1975 replaced by amending Act No. 14 of 1976. Under proviso to amended Sub-section (3) of Section 13 of the Act, while determining the amount under Sub-section (3), the court was not to take into account the amount of rent which was barred by limitation on the date of the filing of the suit. On this basis, it was urged that the defendant was only bound to deposit at best three years rent amounting to Rs. 180/- while he had deposited a total amount of Rs. 410/- on account of arrears of rent and had thus deposited Rs. 230/- as excess. It was further urged on behalf of the respondent that the provisions contained in the amended Section 13(3) of the Act applied to pending proceedings. The Munsif, Sikar upheld the contention advanced on behalf of the respondent that the provisions of amended Section 13(3) of the Act applied to pending suits and the appellant was not entitled to the decree of the amount of rent which had been deposited by the respondent in court which was barred by limitation. The trial court, therefore, said that the excess amount deposited would be adjusted as against the future rent and in that view of the matter, the tenant had not committed any default.
4. It appears that before the first appellant court, the appellant filed an application on 31st July, 82 for striking out the defence raised by the respondent in the suit on the ground that the tenant had not deposited rent month by month during the pendency of the appeal. This application was rejected by the first appellate court. It was further urged on behalf of the appellant before the first appellate in that the deposit made by the respondent before the trial court Under Section 13(4) of the Act as it stood before the amendment in the year 1975, an amount of Rs. 39/- in respect of interest was deposited less and, therefore, there was non-compliance of Section 13(4) of the Act. In answer to this contention, it was urged on behalf of the respondent that after the amendment in the Act by substitution of Sub-section (3) of Section 13 of the Act, the appellant has not remained entitled to get more than three years rent and, therefore, the excess amount of rent deposited by the tenant may be adjusted as against the deficient amount of interest. The first appellate court also held that under Sub-section (3) of Section 13 of the Act as it stood after amendment, the landlord was only entitled to get rent of 36 months and the amount of 46 months rent amounting to Rs. 230/- was in respect of a period which was barred by limitation which the landlord was not entitled to get. Since the deposit was in excess than the rent due, there was no question of ejectment of the defendant. It was further held that if the landlord was only entitled to get 36 months rent, the interest amount comes to only Rs. 16.65/- at the rate of 6% per month and the amount of interest deposited by the tenant was not deficient.
5. After hearing the matter at length, I am of the view that the courts below have wrongly held that the amended Section 13(3) of the Act applied in the instant case. The suit was instituted by the plaintiff-appellant on 16th Dec. 71 and at that time, there was Sub-section (4) of Section 13 of the Act, which provided that in a suit for eviction on the grounded set forth...in Clause (a) of Sub-section (1)...the tenant shall on the first day of hearing deposit in the court or pay to the landlord an amount calculated at the rate of rent at which it was last paid, for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which the deposit of payment is made together with interest on such amount calculated at the rate of 6% per annum from the date when any such amount was payable to the date of deposit and shall thereafter continue to deposit or pay month by month, by the 15th of day succeeding month a sum equivalent to the rent at that rate. The tenant had admittedly deposited an amount of Rs. 410/- as arrears of rent Under Section 13(4) of the Act on 18th Jan. 72. This deposit had been made in respect of the period Bhadwa Budi 1 Samvat 2022 to Chet Sudi 15 Smvt. 2029 i.e. of 82 months at the rate of Rs. 5/- per month. As already stated, there was neither any dispute between the parties regarding the rate of rent nor in respect of the period for which the rent was due and, therefore, provisions contained in Section 13(5) of the Act, as it then stood, then did not apply. The only controversy between the parties remained regarding some deficiency in the amount of interest. As already stated, the tenant had deposited an amount of Rs. 40/- as interest as calculated by him. In my opinion, merely because of some deficiency in the deposit of amount of interest, it cannot be held that the respondent tenant had failed to deposit the amount referred to in Sub-section (4) of Section 13 of the Act. Reference may be made to the decision in Vatan Mal v. Kailash Nath 1989 (1) R.C.R. 500. In that case, it was observed that there might have been some delay or omission here and there in the long period of 8 years in the payment of rent. The Court while determining the amount of arrears was to afford the tenant opportunity to pay the arrears. This prayer had been allowed and the Court had determined the arrears and interest payable thereon and the tenant deposited the amounts determined. It was held that it cannot, therefore, be said that the tenant had knowingly and wilfully committed a second default. I am of the opinion that the provisions contained in Section 13(4) of the Act as it stood before amendement made in the year 1975, were benificient provisions for the benefit of tenant. If the tenant deposited the entire arrears of rent with interest and also month-by-month rent, no decree for eviction on the ground specified in Clause (a) of Sub-section (1) of Section 13 could be passed on account of the provisions contained in Sub-section (7) of Section 13 of the Act. The intention of the tenant in instant case was quite bonafide. He had even before the first day of hearing deposited the entire amount of arrears of rent due to the date of deposit and had also calculated interest and had deposited an amount of Rs. 40/-. When the rent is at a figure to Rs. 5/- per month and the period is 82 months, there can reasonably be some mistake in calculation of interest of some petty sum and if there remained a negligible deficiency in the amount of interest deposited by the tenant, it cannot be held that the tenant had failed to deposited by the tenant, it cannot the held that the tenant had failed to deposit the amount referred to in Sub-section (4) Section 13 on or before the first day of hearing. The tenant having complied in terms with the provisions contained in Sub-section (4) of Section 13 of the Act, as it stood prior to its amendment in the year 1975 no decree for eviction on ground of defaults can be passed against the respondent.
6. With regard to the other grounds, both the courts have concurrently held that the appellant did not reasonably and bonafide require the demised shop for use of himself or his family and further that no material alterations had been made by the respondent in the demised premises. It may also be stated that during the pendency of this appeal, the respondent has filed an application under Order 41 Rule 27 CPC read with Section 151 to the effect that the appellant had also filed a suit for eviction against his another tenant named Shri Gani Chowdhary. The suit against Shri Gani Chowdhary was decreed by the lower court. Shri Gani Chowdhary filed Civil Second Appeal No. 84/1981 before this Court but his appeal was dismissed on 26th Aug. 87. Certified copy of the judgment of this Court in Civil Second Appeal No. 84/81 has been produced alongwith the application. That goes to show that Gani Chowdhary had filed second appeal against the decree for ejectment passed against him. In this suit against Gani Chowdhary, the appellant herein had sought his ejectment on ground of a bonafide and personal necessity and his suit was decreed right upto this Court. This subsequent event can also be taken notice of the fact that the appellant has already obtained a decree against his another tenant from a shop and that would meet the needs of the appellant, if any, for a shop.
7. In the above view of the matter, I do not find any force in this appeal, and the same is hereby dismissed. Parties are left to bear their own costs.