IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL SECOND APPEAL NO.430/2008 Smt. Santosh Arora W/o. Shri Omprakash Aroda, resident of Nageena Bagh, District Ajmer (Raj.). ...Appellant-Defendant VERSUS 1.Vasudev Manghani & Sons H.U.F. Holder Vasudev Manghani S/o. Shri Sunder Das Manghani. 2.Suresh Manghani S/o. Sunder Das Manghani, resident of 16, Guru Nanak Colony, District Ajmer. ...Respondents-Plaintiffs Date of judgment :: ___________ PRESENT HON'BLE Mr. JUSTICE ASHOK PARIHAR Mr. S.M. Mehta, Sr. Advocate, with Mr. Sudesh Bansal, for appellant. Mr. Paras Kuhad, Mr. Pancham Surana, for respondents. BY THE COURT: Suit for eviction was filed by the landlord against the defendant-appellant on the ground of default and non-user. Subsequently, with the change of ownership of the premises in dispute, the purchaser was substituted as plaintiffs in the suit who are present plaintiff- respondents. The suit was allowed on the ground of default by the trial court vide judgment and decree dated 12.1.2007. The above judgment and decree passed by the trial court has further been affirmed by the lower appellate court vide judgment and decree dated 27.8.2008. Hence, the present appeal by the defendant-appellant. Mr. Mehta, learned Senior Advocate appearing on behalf of the appellant, submitted that admittedly an advance security deposit of Rs. 1 Lac had been received by the original landlord at the time of executing the rent deed. Since advance paid by the defendant-appellant against security for rent was already deposited with the landlord, the arrears of rent could have been adjusted by the landlord and question of default would never arise in such case. While relying on the judgment of the Supreme Court in the case of Modern Hotel, Gudur Vs. K. Radhakrishnaiah & Ors. (AIR 1989 SC 1510), Shri Mehta submitted that the defendant-appellant had already made a prayer before the trial court at the time of determination of provisional rent that the advance paid to the landlord could be adjusted against the arrears of rent. However, question of adjustment of amount was not decided by the trial court and provisional rent was determined accordingly. Even otherwise, after determination of provisional rent, the same was deposited within the stipulated extended time as fixed by the trial court. Under the circumstances, the decree of eviction could not have been granted on the ground of default. Mr. Mehta further submitted that original landlord having withdrawn or accepted the provisional rent so determined, the subsequent landlord was estopped from raising the plea of default. Mr. Kuhad, learned counsel appearing on behalf of plaintiff-respondents on the other hand while supporting the judgments of both the courts below, submitted that in view of clear provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the rule of peri delicto would clearly apply in the present case. He has relied on the judgment of the Supreme Court in the case of Budhwanti & Ors. Vs. Gulab Chand Prasad (1987(2) SCC 153). After having considered submissions of the learned counsel for the parties, I have carefully gone through the material on record. Before proceeding with the facts and legal aspect, it will be proper to refer to the relevant provisions of the Act of 1950 as applicable in the State of Rajasthan which are reproduced here as under:- “Sec.7. Fixation of Provisional Rent – (1) Upon the institution of a suit under Section 6, the Court shall forthwith make an order fixing in a summary manner a provisional rent for the premises in question, which shall be binding on all parties concerned and shall remain in force till a decree fixing the standard rent therefore is finally made in such suits. (2) The provisional rent fixed under this Section shall also apply to such arrears of rent as, in the case of a tenant who has instituted within six months from the commencement of the tenancy a suit under Section 6 on the ground of the rent agreed upon being excessive relate to the period intervening between such commencement and institution. (3) A suit for the recovery of arrears of rent to which the provisional rent fixed under this Section is applicable shall be stayed by the Court upon the payment by the tenant in Court of the total amount due to the landlord on the basis of such provisional rent. (4) Any failure to pay the provisional rent for any month by the fifteen day of the next following month shall render the tenant liable to eviction under clause (a) of sub-section (1) of Section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub-section (1) were a decree of the Court in a suit for periodical payments. (5) All amounts paid as provisional rent shall be adjusted towards payment of the standard rent finally decreed. Sec.9. Charge of additional amount prohibited – (1) No landlord shall claim or receive from his tenant, in consideration the grant, continuance or renewal of a tenancy of sub tenancy of any premises, any fine, premium, advance or other payment unless the same is permissible by or under any of the provisions of this Act, in addition to the rent, or where standard rent has been determined under Section 6, in addition to the standard rent as so determined. (2) No tenant shall claim or receive from his landlord any payment in consideration of the relinquishment of a tenancy or sub tenancy of any premises. Sect.13. Eviction of tenants- (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 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 there to 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 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). 23. Penalties – (1) Any person who contravenes any of the provisions of this Act, or any order made in pursuance thereof, shall be punishable on conviction with simple imprisonment for a term which may extent to six months, or with fine upto Rs.1,000/- or with both. (2) Any person who attempts to contravene, or abets a contravention of, any order made or deemed to be made under this Act, shall be deemed to have contravened that order.” The suit for eviction has been filed only on the ground of default and non-user. The issue of non-user have been decided in favour of defendant-appellant by both the courts below and have not been further challenged by plaintiff-respondents. There is no dispute that provisional rent was determined by the trial court on 18.8.2003. An amount of Rs.16,969.50/- was to be paid against arrears of rent for 18 months including interest from 1.2.2002 to 31.7.2003. Above amount was to be deposited within 15 days. The defendant-appellant was further directed to pay monthly rent so determined by 15th of each month. The case was fixed for 15.10.2003 for evidence of plaintiff. It was only on 15.10.2003, an application was filed on behalf of the defendant-appellants for extension of time for depositing the amount determined by the trial court on 18.8.2003. The time was extended upto 14.11.2003 vide order dated 15.10.2003. An amount of Rs.21,000/- was paid/deposited by the defendant-appellant on 11.11.2003. Both the courts below have held that though arrears as determined by the trial court had been deposited by the defendant-appellant before expiry of extended period, however, monthly rent of the months of August, 2003 and September, 2003 was not paid within stipulated period. Under the circumstances, the decree of eviction has been granted on the ground of second default. The Hon'ble Supreme Court in the case of Naziruddin & Ors. Vs. Sitaram 2003(1) WLC (SC) Civil 293 has held that delay in depositing the rent is not condonable under Section 5 of the Limitation Act in absence of specific provisions in this regard in particular statute. On the other hand, under the Act of 1950, as per provisions of Section 13(4), the time for depositing arrear could be extended for three months. However, time for depositing the monthly rent as ordered could only be extended for 15 days at the most for each month. In the present case, the defendant-appellant was required to deposit the rent of August, 2003 and September, 2003 on 15.9.2003 and 15.10.2003 respectively and the trial court could have extended the time for payment of rent for above months only upto 30.9.2003 and 30.10.2003 respectively. Whereas, admittedly, the rent was deposited only on 11.11.2003 for above two months also. As such, on admitted facts the defendant-appellant had committed subsequent default and was liable to be evicted only on this ground. So far as deposit of advance security of Rs. 1 Lac is concerned, rent agreement was executed on 17.1.1997. A bare reading of the agreement would show that there was no such stipulation in the agreement that the monthly rent due of any month could be adjusted from the security deposit. On the other hand, there is clear stipulation that at the time of handing over the possession of the rented premises, the landlord would make the payment of Rs. 1 Lac so deposited as security to the tenant. In such circumstances, argument of the learned counsel for the defendant-appellant cannot be accepted that advance security so deposited could have been adjusted against the arrears of rent. As has already been referred above, certain conditions of the provisions of the Act of 1950 are mandatory with penal consequences. If the argument of Mr. Mehta in regard to adjustment is accepted, the provisions of the Act of 1950 shall become redundant. Once default proved, the same is not washed out with the change of ownership of the premises as well. The judgment sited by the learned counsel for the defendant-appellant is not applicable in the facts of the present case since the provisions of a particular Act were under consideration in that judgment and no such provisions exist in the present statute as applicable in the State of Rajasthan as already referred above. Having considered entire facts and circumstances since on the basis of concurrent findings of fact after due consideration proper discretion has already been used by both the courts below, no further interference is called for by this court, moreso, when no substantial question of law arises. However, in the interest of justice, the defendant-appellant may now vacate the suit premises on or before 30.4.2009. An undertaking in this regard may be submitted before the trial court within fifteen days. In case of violation of any of the conditions of the undertaking, the plaintiff-respondent shall be free to execute the decrees passed by the courts below in accordance with law. With the above observations and liberty, the appeal is disposed of accordingly. (Ashok Parihar) J.