1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Smt. Kiran Devi Vs. Rajendra Khajanchi S.B.Civil Writ Petition No. 5899/2008 ......... Date of Order : 20/08/2008 P R E S E N T HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sanjeet Purohit for the petitioner. BY THE COURT By the instant writ petition under Articles 226 & 227 of the Constitution of India, the petitioner seeks quashing of order Annex.6 dated 30.03.2007 and Annex.8 dated 16.05.2008. Learned counsel for the petitioner submits that the provisional rent was determined by the Civil Judge (Junior Division), Bikaner (for short 'the trial court' hereinafter) by order dated 27.05.2003 Annex.3 and the petitioner was directed to deposit the rent according to the provisions of Section 13 (4) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short “the Old Rent Act” hereinafter), though the petitioner 2 failed to deposit the rent as per the direction of the trial court, however, the petitioner filed an application seeking extension of time which came to be dismissed on 23.1.2004. The order dated 23.1.2004 came to be challenged by way of an appeal before the learned District Judge, Bikaner which too came to be dismissed on 18.10.2004. The respondent-landlord filed an application under Section 13 (5) of the Old Rent Act seeking striking off the defence on 09.09.2003 and thereafter that application remained pending and the trial proceeded including recording of the statement of respondent-landlord as also the petitioner-tenant and when the matter reached to the argument stage, the application filed by the landlord seeking striking off the defence under Section 13 (5) of the Old Rent Act came to be argued and decided by the trial court by order impugned striking off the defence. According to the learned counsel for the petitioner the respondent-landlord has waived his right to strike off the defence as provided under Section 13 (5) of the Old Rent Act. Learned counsel for the petitioner has relied on two decisions of this Court in Jagannath Vs. Janiram AIR 1981 Rajasthan 233 and in Hukam Chand Vs. Madan Lal AIR 1986 Rajasthan 69. In the instant case, the petitioner failed to establish that the respondent-landlord after having filed the application seeking striking off the defence dated 09.09.2003 has ever received the amount of provisional rent determined by the trial 3 court. Though a cheque said to have been placed on record of the trial court issued in the name of the respondent-landlord, but the said cheque was neither issued by the petitioner-tenant nor signed by him and even at any rate that amount of cheque has not been withdrawn by the respondent-landlord. In Jagannath Vs. Janiram (supra) this Court observed as under :- “In the present case, there being no determination under sub-section (5) of S. 13 of the Act, the tenant was not bound to make any deposit. However, whatever amount was considered proper by him to be payable towards arrears of rent and interest thereon, was deposited and the same was withdrawn by the plaintiff landlord willingly and there was no demur or protest. The plaintiff did not raise any dispute that the amount deposited by the tenant was short or was insufficient. In such circumstances, the plaintiff landlord must be deemed to have waived his right, if any, to take benefit of the ground of defaults in payment of rent. As a matter of fact, the fault did not lie with the defendant but the trial court erred in failing to perform its duty of determining the amount of arrears of rent along with interest, as envisaged in sub-section (5) of Section 13 of the Act. Moreover, the defendant-tenant appears to have been misled by the conduct of the plaintiff in applying for and withdrawing the amount deposited by the tenant in accordance with the provisions of Section 13 (5); sub-sec. (7) of Section 13 of the Act provides that if a 4 tenant makes a deposit or payment, as required by sub-section (4) or (5), no decree for eviction on the ground specified in clause (a) of sub-section (1) of Section 13 of the Act can be passed by the Court. As I have already pointed out above, sub-section (4) was inapplicable to the facts of the present case as there was a dispute between the parties regarding the amount of arrears of rent. In these circumstances, the amount which the tenant thought proper, without determination in accordance with the provisions of sub-section (5) of Sec. 13, was deposited by him and the same was willingly withdrawn by the landlord plaintiff. Thus, the tenant had complied with the provisions of sub-section (5) of Section 13 of the Act and, therefore, a decree for ejectment on the ground of defaults in payment of rent could not have been passed against the defendant.” “The same principle is applicable to the facts of the present case also as the landlord plaintiff could have waived his right for a strict compliance of the provisions of sub-section (5) of Sec.13 of the Act and for determination of the amount payable by the tenant, even after deposit or payment thereof by the tenant. But as the landlord plaintiff apparently felt satisfied in the present case with the amount deposited by the tenant and withdrew the same without any demur, it should be presumed that the plaintiff thought that the amount deposited by the tenant was sufficient to cover the amount payable for arrears of rent and interest thereon. In the circumstances narrated above, the plaintiff must be 5 deemed to have waived his right for seeking eviction of the tenant on the ground of defaults in payment of rent. It must be assumed, in the circumstances of this case, that the deposit of Rs. 500/- was made by the tenant in compliance with the provisions of sub- section (5) of Sec. 13 of the Act. As no grievance was made by the plaintiff that subsequent rent during the pendency of the suit was not paid month by month the provisions of sub-section (5) were complied with and a decree for eviction could not have been passed in view of the provisions of sub- sec. (7) of Section 13 of the Act.” In Hukam Chand Vs. Madan Lal's case, (supra) this court held that in a suit for eviction the landlord can waive the benefit or advantage of getting the tenant's defence struck off under S. 13 (5) on account of default in payment of month by month rent by the defendant tenant on the due date during the pendency of the suit. The acceptance by the landlord of delayed payment of monthly rent by the tenant during the pendency of the suit amounts to waiver of the default in payment of rent and therefore striking off the defence of the tenant under S. 13 (5) would be invalid. The decisions relied on by learned counsel for the petitioner turn on their own facts and are of no help to the petitioner. In the instant case, neither the respondent-landlord accepted the delayed payment of rent nor the case of the 6 petitioner is that the petitioner has paid the rent even belatedly to the respondent-landlord and landlord has been accepting such payment. In Jagannath Vs. Janiram's case (supra), there had not been any provisional determination of rent and therefore, without the rent being provisionally determined under sub- section (3) of Section 13 of the Old Rent Act, the tenant was not bound to make any deposit. Thus, the decision relied on by counsel for the petitioner are distinguishable on facts. In this view of the matter, I do not find any error in the orders impugned warranting interference invoking the extra- ordinary jurisdiction of this Court under Article 227 of the Constitution of India. More so, it is settled law as propounded by Hon'ble Supreme Court in Sadhana Lodh Vs. National Insurance Co. Ltd. and another AIR 2003 Supreme Court, 1561 that the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Art. 227 of the Constitution, the High Court does not act as an Appellate court or the Tribunal. It is also not permissible to a High Court on a petition filed under Art. 227 of the Constitution to review or re-weigh the evidence upon which 7 the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision. Consequently, I do not find any merit in the writ petition. The writ petition is dismissed summarily. No order as to costs. (H.R.PANWAR), J. rp 8 S.B.Civil Misc. Stay Petition No. 10470/08 In S.B.Civil Writ Petition No. 5899/08 Date of Order : 20/08/2008 HON'BLE MR. JUSTICE H.R.PANWAR Mr. Sanjeet Purohit for the petitioner. Since the writ petition itself has been dismissed, the stay petition also stands dismissed. (H.R.PANWAR), J. rp