SBCWP NO.4997/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4997/2007. Chaju Ram Vs. Additional District Judge, Kotputli and anr. Date of Order : 25 January 2008. PRESENT HON'BLE MR.JUSTICE M.N. BHANDARI Shri Ajay Gupta for the petitioner. **** BY THE COURT:- Aggrieved by the order dated 12/4/2007, this writ petition has been preferred by the petitioner. 2) Brief facts relevant to the present writ petition are that a case was instituted by the non- petitioner for eviction and recovery of arrears of rent. On 19/10/1989, the court determined the provisional rent and issued direction that within a period of 15 days, rent should be paid. It was further directed that the defendant will pay monthly rent of Rs.450/- till the disposal of the case. Vide order dated 5/12/1989, the date for deposition of provisional rent was extented till SBCWP NO.4997/07. 2 18/1/1990 and it is stated that provisional rent was deposited. 3) Thereafter, due to illness of grand-son of petitioner-defendant, rent for the month of February 2000 could not be deposited by 15/3/2000 and was accordingly deposited on 13/4/2000. Vide order dated 29/5/2001, the delay in submission of the rent was condoned and application moved by the plaintiff non-petitioner under Section 13(5) of the Rent Control Act was dismissed. Aggrieved by the order of the trial court dated 29/5/2001, an appeal was preferred and the appellate court vide its order dated 3/8/2002 set-aside the order dated 29/5/2001 and directed the court below to consider the applications of the plaintiff dated 12/4/2001, 20/4/2000 and 28/5/1997 and the applications of defendant. It was directed that the parties should be heard and matter be decided accordingly. 4) The learned trial court vide its order dated 17/12/2003 came to the conclusion that rent for the month of October, 1989 was deposited on 5/12/1989 and for the month of January, 1990 is concerned, it was deposited with the delay of 15 SBCWP NO.4997/07. 3 days and same was the position in regard to the rent for the month of February 2000 and, therefore, defence of defendant was ordered to be struck off. Aggrieved by the said order, an appeal was preferred. The question came up for consideration before the appellate court was as to whether the order dated 17/12/2003 passed by the court below needs an interference or not. The learned appellate court firstly considered the submission of the appellant where it was contended that he had deposited advance rent for the months of October, November and December, 1989 and even if the defence of the defendant is not accepted then also, there is delay of 15 days and in one case 7 days. The court is otherwise having jurisdiction to extend the period by three months. Learned appellate court considered the submissions made by the parties and taking note of all the aspects, came to the conclusion that rent for the month of October, 1989 was required to be deposited by 15/11/1989 and in any case by 30/11/1989 but rent in that regard was deposited on 5/12/1989, delay of which, cannot be condoned and in that regard the judgment of the SBCWP NO.4997/07. 4 Apex Court reported in 2003(2) SCC 577 was referred. So far as the rent for the subsequent months i.e. February 2000 is concerned, it was not found beyond limitation therefore, taking note of the delay in submission of the rent for the month of October, 1989 which was deposited on 5/12/1989 the defence was ordered to be struck off because delay in submission of the rent for the aforesaid month could not have been extended beyond 30/11/1989. 5) Learned counsel for the petitioner urged that there was no delay in deposition of the rent and if there was 5 days delay in deposition of rent in regard to the month of October 1989 then same should have been condoned. It was also urged that the learned court however failed to consider that delay in deposition of the rent can be considered only after the provisional rent is determined and in the present matter since the provisional rent was determined in the month of October, 1989 thus, it cannot be said that there was delay in deposition of the rent for the month of October, 1989. Learned counsel for the petitioner made SBCWP NO.4997/07. 5 reference of the judgments reported in 1981 WLC 379 : Jagannath Vs. Janiram, 1985 RLR 633 : Hukam Chand Vs. Madan Lal. 6) I have considered the submissions of the counsel and perused the record as well as the judgments cited. 7) Perusal of the impugned-order shows that there was delay in submission of the rent for the month of October, 1989 as the same was deposited on 5/12/1989 thus, the delay beyond further period of 15 days cannot be condoned, the court came to the conclusion that taking note of the default of the petitioner, defence has rightly been struck off by the trial court. During the course of argument, learned counsel for the petitioner could not satisfy this Court to the effect as to how delay in submission of the rent for the month of October, 1989 can be condoned other than citing two judgments to show that if the rent itself is not determined then a questin of delay does not arise. Taking note of the facts available, it is clear that the provisional rent was determiend by the court vide its order dated 19/10/1989 itself and SBCWP NO.4997/07. 6 while passing the said order, it was directed that the said amount should be deposited within a period of 15 days and, thereafter, monthly rent should be deposited on month to month basis starting from October, 1989. It is only after passing of the said order that the petitioner defaulted in regard to deposition of rent therefore, it becomes clear that in the present matter not only rent was determined but it is further a fact that after determination of the provisional rent, default was made by the petitioner. In view of above, none of the judgments cited by the petitioner helps him rather, the judgment referred in 1981 WLN 379 clearly shows that in view of the law decided therein, petitioner is having no escape in suffering from an order of striking off his defence. 8) In view of the discussion made above, I find no error in the order impugned because the appellate court has rightly considered the matter while upholding the order passed by the trial court inasmuch as, when there was delay in submission of the rent after determination rather as per the order dated 19/10/1989, the petitioner was required SBCWP NO.4997/07. 7 to deposit the rent within 15 days and, thereafter, on month to month basis from October, 1989 onwards. Thus, there being clear direction in the order dated 19/10/1989 and not being challenged by the petitioner, the grievance raised in the present matter is no more sustainable because petitioner had defaulted in deposition of rent only subsequent to the determination of the provisional rent. The orders of the courts below are accordingly upheld and the writ petition is dismissed accordingly having no merit. (M.N. BHANDARI), J. anil