Kanhaiya Lal Vs. Smt. Anand Kanwar Bai - Court Judgment

Excerpt:
rajasthan premises control of rent & eviction) act, 1950 - sections j3(1)(a), (3)(4), 19 & 19a--eviction--tenant remitting rent by m.o. when landlord not accepting rent--held, tenant has option to deposit rent in court or remit by m.o.--he has committed no default and decree for eviction cannot be passed.;if a tenant has remitted the rent by money order which has been refused by the landlord, it is not a must for the tenant to deposit the rent in court as he has an option to remit or deposit the rent in any against judgment and decree dated 9-12-1983, passed by civil judge, bundi of the methods specified in sub-section (3).... the tenant had sent the rent by money order for various months between june, 1978 to december, 1978,cannot be said to have committed default or that he has neither paid nor tendered the amount of rent from him for six months, specially when he has tendered the rent for various months from june, 1978, vide annexure a-l to annexure a-6, and therefore, no decree of eviction could be passed against him under section 13(l)(a) of the rent control act. the tenant appellant has done his duty of sending rent by money order and if the landlord did not accept the same but refused, the money orders, why the poor tenant should not suffer.;appeal allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 13. eviction of tenants-(1) not with standing any thing contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting a tenant, so long as he is ready and willing to pay rent, therefore, to the full extent allowable by this act, unless it is satisfied: on his failure to deposit the rent for any month by the fifteenth day of the next following month, the court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit. rajrani 1962 rlw 633, this court again observed that sub-section (3) of section 13 of the rent control act clearly provides that a tenant must remit the amount to the landlord by a postal money order at his ordinary address if he wants so save himself from eviction under section 13(1)(a) of the rent control act. or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this act, unless it is satisfied: -(i) not with standing any thing contained in any law or contract, no court shall pass any decree, or make any order, in favour of landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this act, unless it is satisfied: the tenants who are ready and willing to pay rent to the landlord should not be evicted unless one of the conditions mentioned in section 13(1)(a) to (1) is satisfied. an option has been given to the tenant to remit the rent by money order or to deposit the rent in the bank and in case the landlord refuses to accept the money order or does not specify the bank account number, a further option is given to the tenant to deposit the rent in court as well. the tenant appellant has done his duty of sending rent by money order and if the landlord did not accept the same but refused, the money orders, why the poor tenant should suffer.surendra nath bhargava, j.1. this is defendant-tenant's second appeal in a suit for arrears of rent and ejectment.2. the case of the plaintiff is that defendant was a tenant in the suit premises on a monthly rent of rs. 20/-. he committed default in payment of rent and, therefore, the suit was filed on 14-9-1973 by the plaintiff being suit no. 55/73 on the ground of default in payment of rent for 25 months. since the defendant deposited the arrears of rent under section 13(4) of the rajasthan premises (control of rent and eviction) act, l950, (here in after to be referred as 'rent control act') the suit was dismissed on 28-6-1978. it is alleged in the plaint that the defendant paid rent only upto may, 1978 and did not pay any rent thereafter. the present suit was filed on 24-3-1979 on the ground of default in payment of rent for nine months and also on the ground of reasonable and bonafide necessity.3. on service of the plaint, the defendant filed an application under section 13(4) of the rent control act to the effect that he was willing to deposit rent from 1st june, 1978 to 31st august, 1979 along with interest. after issuing notice of this application to the plaintiff the court ordered on 24-8-1979 that the defendant might deposit rent and hence, the arrears of rent were deposited by the defendant.4. the suit was contested by the defendant. it was submitted that the earlier suit was also filed with an ulterior motive of getting the rent increased and after dismissal of the suit, the plaintiff stopped accepting rent from the defendant and. therefore, defendant sent money orders to the plaintiff which were also refused. therefore, the defendant did not commit any default in payment of rent. it was further asserted that there was no reasonable and bonafide necessity for getting the premises vacated.5. the trial court framed the following four issues:1 vk;k izfroknhx.k us 1 twu 1978 ls 31&12&1978 rd fdjk;k vnk ugh djds fdjk;s dh vnk;xh es 7 ekg fdjk;s dh pwd dh gs a 2 vk;k okfnuh dks oknxzlr nqdku dh ln~hkkoukiwozd okni= ds pj.k la0 8&9 es fy[ks ds eqrkfcd vko;'drk gsa 3 rudh ua0 2 okfnuh ds ik{k es fuf.kzr gksus dh lwjr esa nqdku [kkyh gksus ls fdldks vf/kd vlqfo/kk gksxh a 4 vuqrks'k a6. the trial court after recording evidence of the parties, rejected the contention of the plaintiff that the suit shop was required reasonably and, bonafide by him but decreed the suit of the plaintiff on the ground of default. appeal filed by the defendant was also dismissed. hence, this appeal.7. the appeal was admitted on 12-1-1984 and the following substantial question of law was framed:whether a tenant will be deemed to have validly tendered the amount of any rent due from him, if he has remitted the amount of such rent to the landlord by postal money order at the ordinary address of the landlord and after the alleged refusal of the landlord to accept the payment, the tenant has not deposited in the court?8. learned counsel for the appellant has very vehemently submitted that since the appellant has sent the money orders of the arrears of rent to the plaintiff and the plaintiff had refused the same, therefore, it amounted to valid tender of money in terms of section 19-a of the rent control act. hence, no decree for eviction could be passed on the ground of default as envisaged under section 13(1)(a) of the rent control act.9. on the other hand, learned counsel for the respondent has also very vehemently submitted that sending amount of arrears of rent by money order cannot be treated as payment or tender under section 19-a of the rent control act so as to save the tenant from a decree of eviction under section 13(1)(a) of the rent control act. the tenant ought to have deposited the arrears of rent in court as envisaged by section 19-a to escape the liability of being ejected on the ground of default and in this connection, he has placed reliance on (1) shobhraj v. bhanwar lal .10. he has further submitted that it is not a case under section 13(1)(a) of the rent control act but a case of second default covered by proviso to section 13(6) of the rent control act, and hence, both the courts below were justified in granting decree of eviction in favour of plaintiff-respondent. in this connection, he has placed reliance on m/s. batliboy co. pvt. v. govind narain 1981 rlw 225.11. learned counsel for the parties could not bring to the notice of this court any decided case of this court on this point and, therefore, i shall endeavour to examine the case in detail.12. section 13 of the rent control act, as it stood prior to amendment of 1965,reads as under.13. eviction of tenants-(1) not with standing any thing contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting a tenant, so long as he is ready and willing to pay rent, therefore, to the full extent allowable by this act, unless it is satisfied:(a) that the tenant has neither paid rent nor tendered the amount of rent due from him for any two months; or (b)......; (c)....: (d)....; (e)....; (f)....; (g)....; (h)....; (i)....: (j)....; (k)....; (i)....;13(2)....13(3) for the purpose of clause (a) of sub-section (1), a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has remitted such amount to the landlord by money order at his ordinary address;13(4) in a suit for eviction on the ground set forth in clause (a) of sub-section (1) the court shall on the first day fixed for hearing thereof, by order determine the amount of rent due from the tenant, which is in arrears, upto the date of such order as also the amount of interest thereon at rate of six per cent per annum and the costs of the suit allowable to the landlord and direct the tenant to pay the aggregate of the amount so specified on or before a date fixed thereby, which shall not be beyond the fifteenth day from but exclusive of the date thereof. if on or before the date so fixed for payment, the tenant deposits in court the aggregate of such amounts, the suit shall be dismissed and the sum so deposited shall be paid to the landlord:provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub-section if he has made default in the payment or tender or the amount of rent due from him for any two months on three occasions within a period of eighteen months.13(5) if on the first day fixed for hearing of such a suit, the tenant expresses his intention to contest the same or if he fails to make the payment referred to in sub-section (4), the court shall proceed with the hearing of the suit and may on application of the landlord made at any stage of the suit and after giving a proper opportunity to the parties to be heard, make an order, requiring the tenant to deposit in court month by month the rent at the rate at which it was last paid. on his failure to deposit the rent for any month by the fifteenth day of the next following month, the court shall order the defence against eviction to be struck out and the tenant to be placed in the same position as if he had not defended the suit.the question raised is as to whether payment of rent by money order only once was sufficient and no decree for eviction could be passed on the ground of default.13. this court in babu ram v. narain das 1959 rlw 81, after considering the law, as it stood at that time, relying on an earlier decision in gauri shanker v. ganga prasad air 1949 patna 192 observed that the tenant should not be forced to make useless offer and send money to the land lord by money order if earlier money order had been refused and the tenant will be held to be willing to pay the rent and hence, decree of eviction could not be passed if the tenant had sent the arrears of rent by money order which was refused by the landlord. this view was followed by the another single judge in a later decision in shiv shanker v. sanwal singh 1963 rlw 105.14. in another case, mst. bali v. mst. rajrani 1962 rlw 633, this court again observed that sub-section (3) of section 13 of the rent control act clearly provides that a tenant must remit the amount to the landlord by a postal money order at his ordinary address if he wants so save himself from eviction under section 13(1)(a) of the rent control act.15. thereafter, in 1965, the rent control act was amended and the amended section 13 stood as under:13. eviction of tenant-(1) not with standing any thing contained in any law or contract, no court shall pass any decree.or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this act, unless it is satisfied:[a] that the tenant has neither paid nor tendered the amount of rent due from him for fix months; or (b)....; (c)....; (d)....; (e)....; (f)....; (g)....; (h)....; (i).... (j)....; (k)....; (1)....13(2)....13(3)for the purpose clause (a) of sub-section (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has remitted such amount to the landlord by postal money order at his ordinary address;13(4) in a suit for eviction on the ground set forth in clause (a) of sub-section (1), with or without any of the other grounds referred to in that sub-section, the tenant shall, on the first day of hearing or on or before such date as the court may, on an application made to it fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit in court or pay to the landlord an amount calculated at the rate of rent at which it was last pa d for the period 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 or payment is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of deposit and shall there after continue to deposit or pay, month by month, by the fifteenth of each succeeding month a sum equivalent to the rent at that rate;13(5) if in any suit referred to in sub-section (4) there is any dispute as to the amount of rent payable by the tenant, the court shall determine, having regard to the provisions of this act, the amount to be deposited or paid to the landlord by the tenant, within fifteen days from the date of such order, in accordance with the provisions of section (4),13(6) if a tenant fails to deposit or pay any amount referred to in sub-section (4) or sub-section (5), on the date or within the time specified therein, he court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit;13(7) if a tenant makes deposit or payment as required by sub section (4) or sub-section (5), no decree for eviction on the ground' specified in clause (a) of sub-section (1) shall be passed by the court but the court may allow such costs as it may deem fit to the landlord;provided that a tenant shall not be entitled to any relief under this sub-section if having obtained such benefit under section 13-a in respect of any such accommodation, if he again makes a default in the payment of rent of that accommodation for six months;13(8)....section 19-a was added. the relevant portion runs as under:19 -a deposit of rent by tenant -(1)every tenant shall pay rent within the time fixed by contract or in the absence of such contract by payable.(2) where the landlord does not accept any rent tendered by the tenant within the time referred to in sub-section (1) or where there is bonafide doubt as to the person or persons to whom the rent payable the tenant may deposit such rent with the court and such deposit of rent landlord pay rent to the (3)....; (4)....; (5)....; (6)....16. after the amendment of 1965, this court had occasion to consider a similar matter and it observed in jagdish kumar v. roopchand l970 rlw 315, as under:my attention was drawn to section 13(3) which lays down that for the purpose of clause (a) of sub-section (1) a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has remitted such amount to the landlord by postal money order at his ordinary address. in view of the conflict between section 19a (2) & section 13(3) the operation of section 13(3) is to be confined only for the purpose of clause (a) of sub-section (1). if rent is sent by money order and it is not accepted then it would not amount to payment of rent within the meaning of section 13(4).subsequently, a learned single judge of this court referred the following question to a larger bench:whether under section 19a of the act it is necessary for the tenant every time before making a deposit of rent in court to tender the same to the landlord and to have his refusal or once the landlord has refused the tender or rent, they for every subsequent deposit in court the tenant will not be required to first tender the rent to the landlord and have it refused. in other words, which of the two cases namely 1959 rlw 81 or 1970 rlw 315 lays down the correct law?the aforesaid question came up for consideration before the full bench in martin & harris v. prem 1974 rlw 1 and the question was answered as under:section 19-a of the act requires that every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by fifteenth day of the month next following the month for which it is payable and where the landlord does not accept the rent tendered to him within the time aforesaid the tenant may deposit such rent with the court. it is not necessary that on each subsequent occasion he should first tender the rent to the landlord and obtain his refusal and thereafter deposit the rent in court.in a later decision in shobh raj v. bhanwarlal (supra), relying on the full bench decision, it was observed that the money order remitted to the addressee and bearing endorsement 'refused' tender of money order and its non acceptance may be presumed. it was further observed that where the tender of rent by the tenant to the landlord has been refused once, the tenant need not tender rent to the landlord again but must deposit in court under section 19-a to escape the liability of being ejected on the ground of default.17. then came the amendment in 1975 and after the amendment, relevant portion of section 13 stands as under:section 13-eviction of tenants.-(i) not with standing any thing contained in any law or contract, no court shall pass any decree, or make any order, in favour of landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this act, unless it is satisfied:(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or (b)...... (c)......(d).... (e).... (f).... (g).... (h).... (i).... (j).... (k).... (1)....; (2)....(3) in a suit for eviction on the ground set forth in clause (a) of subsection (1) with or without any of the other grounds referred to in that sub-section, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of determination:provided that while determining the amount under this sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit.(4) the tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. the tenant shall also continue to deposit in court or pay to the landlord, month by month, the monthly rent subsequent to the period upto which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3).(5) if a tenant fails to deposit or pay any amount referred to in subsection (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.(6) if a tenant make deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of subsection (1) shall be passed by the court against him:provided 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 of that accommodation for six months.'(7).... (8).... (9)....18. section 19-a was also substituted. the relevant portion of section 19-a runs as under:section 19-a-payment, remittance and deposit of rent by tenant- subject to the provisions of this section every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable;(2) every tenant who makes payment on account of rent shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent.(3) a tenant may, apart from personal payment of rent to the landlord, remit or deposit rent by any of the following methods:(a) he may remit the amount of any rent due from him by postal money order at the ordinary address of the landlord;(b) he may, by notice in writing require the landlord to specify within ten days from the date of receipt of the notice by the letter a bank and account number into which the rent may be deposited by the tenant to the credit of the landlord. if the landlord specifies a bank and account number tenant shall deposit the rent in such bank and account number and shall continue to deposit in it any rent which may subsequently become due in respect of the premises:provided that such bank shall be one situated in the city or town in which the premises is situated;provided further that it shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this clause;(c) where he has remitted the rent by postal money order under clause (a) and the money order is received back by him under a postal endorsement of refusal or unfound and where the landlord does not specify a bank and account number under clause (b) or where there is bonafide doubt as to the person(s) to whom the rent is payable.the tenant may deposit such rent with the court within fifteen days of the expiry of the period of ten days referred to in clause (b) and in the case of such bonafide doubt as aforesaid within fifteen days of the time referred to in sub-section (1) and further continue to deposit with the court any rent which may subsequently become due in respect of the premises.(4) for the purpose of clause (a) of sub-section (1) of section 13; a tenant shall be deemed to have paid or tendered the amount of any rent due from him if he has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3);(5).... (6).... (7).... (8)....19. section 19b was also inserted which runs as under and it is this section which needs interpretation in the present case:section 79-b-time for deposit and effect of deposit within time-no rent deposited with the court under section 19a shall be considered to have been validly deposited under that section unless the deposit is made within the time specified in clause (c) of sub-section (3) of the said section.20. learned counsel for the appellant referred to the following cases wherein it has been held that if a tenant sends the arrears of rent by money order and the landlord does not accept the amount and refuses the money order, tenant cannot be said to be in arrears and could not be evicted on the ground of default as remittance by money order will amount to tendering the rent amount:suka ishrain v. ranchood das 1972 rcr 527; harichand v. nandlal 1972 rcj (short notes) no. 31; moinuddin v. imamuddin air 19 2 all 25; rajaram v. ganpat lal 1974 rcj 569; bheekhalal v. munnalal air 1974 all. 366 fb; and panchal hasmukhlal bobu lai v. vithalbhai nagardas parmar 1976 rcj (short notes 17).21. this proposition is not disputed even by the respondent and even our own high court in 1959 rlw 81, (babu ram v. narayan das) and shiv shanker (supra) has taken the similar view. section 19-a of the rent control act before the amendment of 1975 started with the heading 'deposit of rent by tenant', whereas after the amendment heading of section 19-a is payment, remittance and deposit of rent by tenant'. the second difference between the two sections is that after the amendment in section 19-a, words, 'subject to the provisions of this section' have been added. amendment in section 19 a has been made with a view to give additional facility to the tenant and is a beneficial legislation for the tenants. the tenants who are ready and willing to pay rent to the landlord should not be evicted unless one of the conditions mentioned in section 13(1)(a) to (1) is satisfied. sub-section (a) provides that a tenant can be evicted if he has neither paid nor tendered the amount of rent due from him for six months. if the tenant pays the amount to the landlord, he is naturally not a defaulter. the whole difficulty arises if the tenant does not pay the rent to the landlord personally, then how could the tenant get the benefit of section 19-a. sub-section (3) of section 19-a provides that tenant may apart from personal payment of rent to the landlord, remit or deposit rent by any of the method given in further subsection (a), (b) or (c). remittance of the arrears of rent by postal money order at the ordinary address of the landlord is sufficient to absolve the tenant of his duty to pay rent to the landlord. the other method provided under section 19-a is by depositing the rent in a bank in the account of the landlord to be disclosed by him but if the landlord refuses to accept the rent by money order or does not specify a bank account number or where is bona fide doubt as to whom rent is payable, a further option is given to the tenant to deposit the rent in the court. sub section (4) of section 19-a provides that a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3); where as section 19-b provides that no rent deposited with the court under section 19 a shall be considered to have been validly deposited under that section, unless the deposit is made within the time specified in clause (c) of sub-section (3) of section 19-a. section 19-a also provides the procedure for depositing the rent and also prescribes time within which the amount has to be deposited in court vide section 19-a(3)(c). even though this is a beneficial legislation in favour of the tenant but the legislature has also safeguarded the interest of the landlord should receive the rent regularly if the tenant wants to continue occupying the premises on rent. therefore, a tenant is not only to be ready and willing to pay the rent, but the landlord should also receive the rent. section 13(1)(a) of the rent control act speaks that if the tenant has neither paid nor tendered the amount of rent, due from him for six months, he is liable to be evicted. sub-section (4) of section 19-a of the rent control act provides that for the purpose of section 13(1)(a), a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid or remitted the amount of rent by any of the methods specified in sub-section (3), meaning thereby that the landlord should either receive the rent in person or the tenant should remit or deposit the rent as envisaged by section 19-a (3). the word 'any' used in sub-section (3) and (4) is very significant and after reading sub-section (3) and (4) together, that the legislature has given the facility to the tenant that he may either make the payment personally or remit the same by postal money order at the ordinary address of the landlord or deposit in the bank account or failing which he may also deposit the rent in court. an option has been given to the tenant to remit the rent by money order or to deposit the rent in the bank and in case the landlord refuses to accept the money order or does not specify the bank account number, a further option is given to the tenant to deposit the rent in court as well.22. the interpretation by this court in sobh raj`s case (supra) is based on section 19-a as it existed before 1975 and since section 19-a has been totally substituted and different phraseology has been used, the observations made in that judgment are not binding or rather very helpful in interpreting the language of the existing section 19-a.23. therefore, i am of the view that if a tenant has remitted the rent by money order which has been refused by the land lord, it is not a must for the tenant to deposit the rent in court as he has an option to remit or deposit the rent in any of the methods specified in sub-section (3). since in the present case, the tenant had sent the rent by money order for various months between june, 1978 to december, 1978, he cannot be said to have committed default or that he has neither paid nor tendered the amount of rent due from him for six months, specially when he has tendered the rent for various months from june, 1978 vide annexure a-l to annexure a-6 and therefore, no decree of eviction could be passed against him under section 13(1)(a) of the rent control act. the tenant appellant has done his duty of sending rent by money order and if the landlord did not accept the same but refused, the money orders, why the poor tenant should suffer. there is no doubt about the interpretation of section 19-a in the present case, the tenant cannot be evicted on the ground of default in payment of rent.24. as regards another objection of the plaintiff-respondent that the tenant having committed default for the second time after having taken benefit of section 13(4) in the earlier suit, the landlord is entitled to a decree of eviction in view of proviso to section 13(6), it will be pertinent to note that no such issue was framed by the trial court nor the landlord applied for amendment of the issues nor the plaintiff in his statement as pw 1 has stated anything in that connection, except filing a copy of the plaint of the earlier suit, without stating on oath or producing the certified copy of the decree or order passed in that suit, showing that the tenant has been a defaulter in that suit and had taken benefit of section 13(4). the contention of the learned counsel for the respondent cannot be accepted.25. in the result, this appeal is allowed, the judgment and decree of both the courts below are set aside and the suit of the plaintiff-respondent is dismissed but looking to the facts and circumstances of the case, the parties are left to bear their own costs.