JUDGMENT

1. - In a suit for eviction from a shop on the ground of default in payment of rent, and also other grounds, the trial court refused to determine rent due under Section 13 3) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1150 (hereinafter called the Act) and gave a finding that the tenant had taken benefit under section 13-A of the Act on an earlier occasion and was not entitled to get this protection under section 13 (6) on a second occasion and as such it was not necessary to determine the rent under section 13 (3) of the Act. The lower appellate court namely, Additional District Judge, Sawai Madhopur, by against order of Shri Manak Mohata, Distt. Judge, Sawai Madhopur dated 24-7-87 passed in C.M.A. No. 140/86. order dated 24 7.107 confirmed this order and against this the defendant petitioners have come up in this revision.

2. The facts in brief are that the petitioner is a tenant of the non-petitioner in a shop in Sawai Madhopur for quite a lung time. In 1961 the plaintiff brought a suit with the allegations that the rate of the rent of the shop was Rs. 20/ - per month and eviction was claimed an the basis of default in payment of rent alongwith other grounds The tenant took the plea that the rent of the shop was only Rs. 11/- per month. The trial court held that the rent was Rs. 20/ - per month and on the ground of default a decree for eviction was passed. The other grounds were decided against the plaintiff land lord. Thereafter the defendant preferred an appeal wherein it was held that the rent note at the rate of Rs. 20/- per month was a forged document and the rate was Rs. 11/- per month. The suit for eviction and arrears of rent was dismissed During the pendency of this appeal the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was amended with effect from 9.6.1965 and the petitioner moved an application under section 13-A of the Act upon which the rent was determined at the rate of Rs. 20/- per month and the plaintiff was allowed to withdraw the money on furnishing an undertaking that in case the defendant succeeds in the appeal and the rent was held to be Rs. 11/- per month the amount shall be refunded or adjusted towards the future rent. While deciding the appeal the rate of rent was held to be Rs. 11/-per month and the amount which was determined as payable on the application under section 13-A of the Act was ordered to be refunded. The plaintiff went in second appeal but this was dismissed.

3. According to the petitioner the first suit was dismissed as the rate of rent was Rs. 11/- per month and not Rs. 20/- and that the plaintiff had not been able to prove that the tenant committed a default in the payment of rent. According to him he was not given any protection as provided under Section 13 (7) or Section 13-A of the Act ? as it stood prior to amendment.

4. The second suit was filed by the land lord in the year 1952 on the ground of default in payment of rent as well as bonafide necessity and for causing damage to the property. The petitioner denied that he had committed a default in payment of rent and applied that the rent may be determined under Section 13(3) of the Act. For purpose of deciding this application the court framed an issue as to whether the defendant had obtained benefit by depositing rent under Section 13-A of the Act in previous suit and as such was not entitled to protection for a second time. The learned court relying on a Division Bench decision of this this Court in (1) M/s. Batibai & Co. Ltd. v. Govind Narain, 1981 RLW 411 , held that when an application under section 13-A was filed by the defendants in the previous suit, they would be treated us having obtained the benefit against default in the previous suit and no enquiry about it was to by made in the subsequent suit and there was no necessity to determine rent under section 13 (3) of the Act.

5. The appeal of the tenant before the District Judge, Sawai Madhopur was dismissed with the following observations : HINDI MATTER 373201

6. While deciding the appeal the lower appellate court has not specified as to whether the trial court should determine rent under section 13(3) of the Act or not. According to them District Judge the application for determining the rent was to he disposed and the observation made by the court below at that time could not be looked into at the time of the decision of the suit. On the face of it something appears to be missing in this order. There is no direction about proceedings under section 13(3) of the Act.

7. The first and foremost question before the trial court was whether the rent should be determined under section 13(3) of the Act or not. In other words even if it is accepted that the suit for eviction on the ground of default was a second suit and in an earlier suit the tenant had taken benefit of section 13(6) or 13-A of the Act. was it necessary for the court to determine the rent under section 13(3) of the Act. The scheme of section 13 may be looked into. The relevant provision reads as under :

"Section 13-Eviction of tenants-(I) Notwithstanding anything 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 six months; or

(3) 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 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 he before the framing of the issues, alter 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 raid or was payable for the period for which the tenant may have made default including they 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 per cent 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 taken 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 subsection (f).

(5) If a tenant fails to deposit or pay any amount referred to in sub-section (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 bearing of the suit.

(6) 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 :

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."

8. The scheme of section 13 of the Act is that in a suit on the grounds of default, the court has to determine the rent etc. and the tenant is to deposit it and also the month. If this is deposited then no decree for eviction is to be passed. Then comes the proviso to sub-section (6) which says that the tenant shall not be entitled to benefit under sub-section (6) if on a previous occasion he has obtained such benefit, or benefit under section 13-A of the Act, in respect of the accommodation for which he again makes a default in the payment of rent for six months.

9. This scheme of section 13 of the Act clearly provides for determination of rent under section 13(3) of the Act. when the suit is on the ground of default in payment of rent with or without any other grounds. This order under sub-section (3) of section 13 is to be passed either on the first date of hearing or not more than three months after the filing of the written statement and in any case before the framing of the issues. In other words such an order is to be passed as early as possible after the service of summons on the defendants. This determination is not subject to the proviso to sub-section (6) of section 13. In other words whether the tenant would be able to get protection of subsection (6) of section 13, or not, is not to be looked into at the stage of determining rent under sub-section (3) of section 13. The determination of rent under section 13 (3) of the Act and payment of the same would not by itself entitle the tenant to protection against eviction. The availability of protection to him would depend upon other conditions. Thus determining the amount under section 13 (3) of the Act and allowing the tenant to deposit the same would not confer and right on him which would entitle him to get the suit of the land lord dismissed on the ground of default. This matter is dependent on different considerations. It may he that in some cases the court is not able to decide the question as to whether the tenant has obtained benefit of section 13 (6) on a previous occasion or not before the issues are framed and in such a case the court should not postpone the framing of the issues merely because the question of availability of protection to the tenant has not been decided. What the could should do it to determine the rent under section 13 (1) and take up the matter of protection under section 13 (6) later on at the time of the decision of the suit in my view the provisions of section 13 (3) and (4) are applicable to all suits for eviction which are on ground default, irrespective of Whether it is the first suit for default or a second suit for default or protection under section 13 (6) or 13-A has been taken on a previous occasion or not. The suit has to be under section 13 (1) (a) with or without any other ground in order to attract section 13 (3) of the Act. Determination of the rent under section 13(3) cannot cause any prejudice to the plaintiff landlord in the second suit. On the contrary it would avoid the situation where it is subsequently held that the tenant had not taken benefit of section 13 (6) or 13-A on a previous occasion and the rent has not been determined and deposited so how in the subsequent suit How to protect the tenant against eviction in that case ? He would be denied the right of protection because the court did not determine the rent under section 13 (3) of the Act.

10. Determination of rent has nothing to do with the question of availing of the benefit or protection against eviction. If in the present case, the amount of rent due is determined along with interest under section 13 (3), and deposited by tenant, then merely because of this deposit he would not become entitled to protection under section 13 (6) of the Act if such benefit has already been obtained by him on a previous occasion - Hence is not determining the rent the courts below have refused to exercise jurisdiction vested in them which was necessary to to be exercised.

11. In this revision petition it is not necessary for me to go into the question as to whether the tenant had taken benefit under section 3-A of the Act in the earlier suit or not. The law in this context is as laid down in (2) Shobhraj v. Bhanwar Lal 1974 RLW 251 and M/s. Batibai and Co. Ltd. v. Govind Narain (supra) wherein it has been held that the law does not envisage any enquiry in a second about the tenant being a defaulter in earlier suit, what is important is whether the tenant has taken benefit on an earlier occasion, This matter shall be decided at the time of decision of the suit.

12. The lower appellate court has already held that the observation made by the trial court would not be binding in the proceedings to be taken further. I wish to clarify that the trial court shall arrive at a fresh decision at the time of deciding the suit on the question as to whether the tenant is not entitled to benefit under section 13 (6) of the Act on the ground that on an earlier occasion be has obtained such benefit or benefit under section 13-A of the Act.

13. This revision is accepted. The trial court is directed to determine the rent as provided by section 13 (3) of the Act, as on early date. The question of affording protection under section 13(6) be decided at the time of decision of the suit.Revision allowed.

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